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Sunday, June 29, 2008
Bob Barr vs. Ron Paul: Two Visions
Congratulations to Bob Barr, Libertarian Party nominee.
First, he basically tells Stormfront to "drop dead."
Then there's this excerpt from an NPR program, Justice Talking, in which Barr was interviewed about his views on Lawrence v. Texas and Roe v. Wade in 2003. Lawrence v. Texas was a landmark ruling in which (in a 6-3 decision) the Supreme Court of the United States struck down state laws criminalizing consensual, private sexual acts.
I can't seem to find a direct link to the interview. Kip has it up on his blog here. Kip's blog is one of my daily reads and I highly recommend it.
If you don't want to listen, here is the relevant part of the interview:
"Unlike a lot of my conservative colleagues...I do think there is a right to privacy that is inherent in the Constitution...I thought [Lawrence] was a very sound decision based on privacy."
This is in contrast to Ron Paul's response to Lawrence v. Texas here. Paul argues that "The State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards." Before the House of Representatives in 2004, Paul said,
The state of Texas has the authority to pass laws concerning social matters, using its own local standards, without federal interference. But rather than adhering to the Constitution and declining jurisdiction over a state matter, the Court decided
to stretch the “right to privacy” to justify imposing the justices’ vision on the people of Texas.
So there you have it. A real libertarian affirms the constitutional right of consenting adults to do what they like in the privacy of their own homes, while Ron Paul claims that state police power legitimately extends into your bedroom, based on nothing more than the mob's will.
Two visions. I know which one I think is more consistent with individual liberty. How about you?
Posted by Terrence Watson on June 29, 2008 | Permalink
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Comments
Thank you for making the point that Bob Barr is not Ron Paul. Two different men, both with valid opinions, and views of small government and liberty.
Posted by: J. Cornwell | 2008-06-29 4:34:22 PM
I will totally concede that Barr is twice the person that Ron Paul is. Still, people need to look at Barr on dealing with our greatest threat since Nazism - Islam. He continues to promote the idea of paying tribute to our Islamic enemies.
Posted by: Faramir | 2008-06-29 4:46:00 PM
You got this one wrong. The Supreme Court of the US has no business ruling over social issues. Period. If people want the right to practice their own stuff in their own bedrooms, they ought to be able to fight it within the state, not at the federal level.
I agree that individual liberty trumps. Because of that, and not in spite of it, I think that federal officials should keep their noses out of personal business.
Posted by: yorktown | 2008-06-29 6:36:52 PM
Bob who?
Posted by: epsilon | 2008-06-29 6:44:27 PM
Although I generally admire Ron Paul, I have to admit that I'm a bit disturbed about his position on this issue. (I've heard his position on "flag-desecration" laws is similar, by the way.)
Whatever role "state's rights" have in U.S. Constitutional law, they should never trump individual rights that are specifically referred to in the constitution.
Ron Paul seems to "get it" when it comes to the Second Amendment (see http://www.fortbendnow.com/pages/full_story?article-Paul-Supports-Supreme-Court-Ruling-On-DC-Gun-Case=&page_label=home&id=100371&widget=push&instance=home_news_bullets&open=&), but doesn't apply this principle universally.
I guess no politician is perfectly principled, but I don't like the idea of people being left guessing which of their rights are really protected.
Posted by: Jeremy Maddock | 2008-06-30 1:31:52 AM
The whole idea about federalism is to bring government closer to people, e.g. local govt. understand local situation much better and this leads to a higher grade of liberty than with a centralized federal government. The individual's private life is important, but as it related to public life, laws and government are needed. There is no absolute liberty for a specific individual, as his or her actions also affects other individuals and the society. Anyone who does not accept local government and laws in principle is an anarchist, and no libertarian, maybe a libertine... Ron Paul's argumentation is thus 100% consistent.
Posted by: Stefan | 2008-06-30 5:01:07 AM
Hello,
I'm a producer for NPR's Justice Talking. I just cam across your blog. Here is the link for the original program. FYI Justice Talking goes off the air this week but our archives will still be available.
Thanks
Kara
http://www.justicetalking.org/viewprogram.asp?progID=411
Posted by: Kara | 2008-06-30 6:05:02 AM
Hello,
I'm a producer for NPR's Justice Talking. I just came across your blog. Here is the link for the original program. FYI Justice Talking goes off the air this week but our archives will still be available.
Thanks
Kara
http://www.justicetalking.org/viewprogram.asp?progID=411
Posted by: Kara | 2008-06-30 6:05:19 AM
This is a perfect example how someone purposefully takes words out of context in order to create a strawman arguement.
Referring to the link you provide ( http://www.lewrockwell.com/paul/paul197.html ), the correct quote of Dr. Paul is "Under the Tenth Amendment, the state of Texas has the authority to pass laws concerning social matters, using its own local standards, without federal interference."
Why leave out the "Under the Tenth Amendment" and capilatize "The"?
Tenth Amendment to the United States Constitution:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Dr. Paul's arguement is 100% correct.
So there you have it. A real libertarian affirms the Constitution, while you claim that Federal power legitimately extends into states rights based on nothing more than the gay mob's will.
Two visions. I know which one I think is more consistent with individual liberty. How about you?
Posted by: Bruce | 2008-06-30 7:14:57 AM
Bruce,
I'm sorry, how does it follow from the 10th Amendment that states have the authority to do anything and everything the federal government isn't authorized to do?
Your argument seems to be that if the federal government can't do it, then the states can. That's ludicrous, even within the text of the 10th Amendment, which also refers to the people. It's also inconsistent with the 14th Amendment's statement that no state may deprive citizens of life, liberty, or property without due process of law.
Not to mention the 9th Amendment, which suggests that there might be other rights aside from those articulated in the Bill of Rights. If there are such other rights, why shouldn't they limit the states as well as the federal government?
Constitutional scholars, you Ron Paul fans ain't.
And Stefan,
"There is no absolute liberty for a specific individual, as his or her actions also affects other individuals and the society."
How does two people having consensual sex in the privacy of their home affect other people? In a sense, of course, everything we do does have some impact on others. But that just means that if the government should have a say over everything we do that affects others, then the government should have a say over everything we do.
Congratulations, you've just justified totalitarianism, Stefan.
Ron Paul cultists are a laugh-a-minute.
Terrence
Posted by: Terrence Watson | 2008-06-30 8:42:10 AM
If you read the actual link to Ron Paul's comments he first states "Ridiculous as sodomy laws may be..." as in, he gets it that you cannot legislate morality.
I think the point is that state and federal government have different jurisdictions but considering Dr. Paul believes that adults should be able to use drugs and that prostitution should be legal I have a hard time believing that he thinks any state should stop anyone from doing anything in their own homes.
Posted by: RK | 2008-06-30 9:23:54 AM
RK,
I don't doubt that Ron Paul thinks anti-sodomy laws are ridiculous. The question is whether prohibiting sodomy is a legitimate exercise of state power.
Ron Paul seems to think it is. In fact, if Bruce's interpretation of Ron Paul's position of the 10th Amendment is correct (and I think it is), the states can legitimately prohibit any act the federal government can't prohibit. That would include the use of drugs and prostitution.
In short, the claim is that while the federal government is limited in what it can do, the states have "plenary police power" -- they can do anything and everything to their citizens, subject only to the limits of their own state constitutions.
I find that notion abhorrent both to liberty and to the very idea of lawfulness itself.
(And if Ron Paul thinks you can't legislate morality, then what is he referring to when he says that Texas should be able to ban sodomy based on its own "local standards"?)
Best,
Terrence
Posted by: Terrence Watson | 2008-06-30 9:38:31 AM
Terrence,
I don't think you are likely to confuse me for a Ron Paul fan, but let me try to say something in his defense on this issue.
First, as RK just pointed out, Paul did preface his comments in one place with "Ridiculous as sodomy laws may be...." But also, in the other article you link to, Paul says "Regardless of the advisability of such laws...." So in both cases he more than hints that he thinks that sodomy laws are wrong.
Second, in the 2003 article he makes it clear that he sees the courts' motivation for recent (at the time) decisions as not a commitment to following the constitution nor a commitment to liberty as an overriding principle, but rather a commitment to a gay "activist" agenda. So when the Supreme Court strikes down sodomy laws, it is a pro-liberty decision, but one Paul sees as being made based on gay activist grounds. And when the Boy Scouts are turfed from a city park, it is an anti-liberty decision that Paul also sees as based on a gay activist agenda.
In short, when courts are making decisions based on what is desirable for the gay community sometimes it will be pro-liberty and sometimes it will be anti-liberty, but it will never be the right decision [i]for the right reasons[/i]. So his objection is not to the removal of sodomy laws, but to the [i]way[/i] the law was removed. Endorsing that [i]process[/i] is problematic for him because it opens the door to anti-liberty decisions made on the same grounds.
Finally, when he says "Texas has the authority to pass laws concerning social matters" I think it is best read as him saying the states have the [i]legal[/i] authority, not that they have the [i]moral[/i] authority to make such laws. So his point is that the Supreme Court is overstepping its powers by deciding such a case. And every time a government body oversteps the boundaries of it's legal authority it is a threat to liberty.
Think of it this way: It is easy to accuse those who defend white supremacists in their battle against censorship laws as advocating white supremacy, but that is to mistake the point of the criticism. Jews who defend anti-semitic speech and gay rights organizations who defend homophobic speech don't defend the [i]content[/i] of the speech, they merely defend the [i]right[/i] of the speaker to say it. when Ron Paul defends Texas law on sodomy it is not that he defends the [i]content[/i] of the law, but merely the [i]constitutional right[/i] for them to make such law. But as a state legislator, he would also vote against such a "ridiculous" and "inadvisable" law.
Paul probably has a hard time sounding really convincing in his opposition to sodomy laws since he probably finds both homosexuality personally revolting and cannot stand the idea of even thinking about men butt-fucking, let alone talking about it. But it is not obvious to me that his position is less libertarian than Barr's. They may have different beliefs about what the constitution means, but the difference between being a libertarian or not is not based on what you think the constitution [i]does[/i] say, it is based on what sorts of laws you think [i]ought to be[/i] the law of the land. And on that front, it does seem that both Barr and Paul think sodomy laws are wrong.
Posted by: Fact Check | 2008-06-30 10:23:59 AM
Terrence: You and I have gone back-and-forth about Paul many times. I'm deeply sympathetic to him, and you're not, but we're both libertarians. That makes our disagreement interesting to pursue.
Fact Check has made a point that I think you were already aware of. I want to add another reason that I think might count in favour of Paul--that being the assumption that the more local the decision-making, the more likely will it be to uphold liberty (or, if not, the more likely it will be for any one of us to have more of a significant say about the matter).
Those are assumptions, and they're empirical. I don't know if they hold up. One reason not to think so is because of other countries. Regardless of size, it appears to me that there's plenty of liberticidal states out there. The number of citizens, and the location of the decisions (whether close-to-the-ground, or far away) seems not to have much of an impact on whether or not they uphold liberty.
Still, if you're committed to the view that, in general, the more local a decision-making power, the more solicitous it will be of liberty, then you'll seek an interpretation of the Constitution that includes something resembling states' rights, and for liberty-loving reasons.
As Fact Check points out, even though in this or that *particular* case the court rules in favour of liberty, it will, in the long run, have more anti-liberty rulings than pro-liberty rulings on different particular issues. If that's true, then it looks like we're better off advocating decentralization, and opposing, in principle, judgments that happen to be pro-liberty here and there.
Posted by: P.M. Jaworski | 2008-06-30 10:39:59 AM
Fact Check,
Thanks for another thoughtful response.
'Paul says "Regardless of the advisability of such laws...." So in both cases he more than hints that he thinks that sodomy laws are wrong.'
I'm sorry, Fact Check, but I still maintain that there's a difference between acknowledging the stupidity of a law, and denying that it is a legitimate law in the first place. The former has to do with the _rationale) for the law (or lack thereof); the latter has to do with whether a law was actually made in the first place, or whether the authority that intended to make the law was just exercising might without right.
And I don't think the Supreme Court (in that case, anyway) made the right decision for the wrong reasons. If you read Justice Kennedy's opinion, it's clear that it was the right decision made for the right reasons (both morally and constitutionally, in fact.)
To maintain that the Supreme Court overstepped its bounds, threatening liberty, one first needs to show that this is what was actually done. But the Supreme Court's role is, among other things, to ensure that states are not depriving people of liberty without due process of law. I, along with others, think that for an edict to count as a law, it has to meet substantive and not just formal standards.
As a matter of fact, I think this is a common view of libertarians, and, more importantly, it was also the view of the Framers of the U.S. Constitution.
It may be that Justice Kennedy/Bob Barr and Ron Paul just have conflicting interpretations of the Constitution. But I think it's important to note that Ron Paul is probably wrong about the Constitution, in this and other areas. He forgets about the 14th Amendment, with its guarantee of due process of law, and the privileges or immunities clause.
"the difference between being a libertarian or not is not based on what you think the constitution [i]does[/i] say, it is based on what sorts of laws you think [i]ought to be[/i] the law of the land."
This is an interesting point. But I hold it's not entirely possible to separate these two questions: what the law ought to say and what it does say are not entirely distinct (well, they are if you are a legal positivist, but..) An egregiously unjust law is no law at all, and a government that deprives people of their liberty on the basis of an unjust law is depriving them of their liberty without due process of law.
Unless Ron Paul holds that the Constitution allows states to deprive their citizens of liberty _for any reason whatsoever_, I don't see how he can deny the important role the Supreme Court plays in ensuring that states abide by due process.
And, if Ron Paul DOES think the Constitution allows that, then why doesn't he want to amend it to change that very un-libertarian fact about the Constitution? It's not like he hasn't expressed intentions to amend it in other ways.
Really, that's the key question for me: ok, give RP his premise: as it stands, states don't have to adhere to the Bill of Rights (14th Amendment notwithstanding.) Why should he, as a lover of liberty, be satisfied with that status quo?
The fact that RP does not want to change the Constitution in that liberty-oriented direction, in spite of his rejection of the 14th, tells me pretty much all I need to know about him.
Best,
Terrence
Posted by: Terrence Watson | 2008-06-30 11:22:46 AM
I find the "privacy" argument disingenuous. A crime committed is a crime committed, whether in public or private. The issue is whether or not a given act ought to be a crime, not whether doing it in one's bedroom gives one immunity. Committing incest with your daughter in your own bedroom is still illegal. And the ruling in Lawrence was entirely interpretive, in effect inventing new law. The foundation of the Supreme Court's ruling is shaky, settling nothing, and therefore open to review at any time.
Posted by: Shane Matthews | 2008-06-30 11:45:16 AM
Jaws,
"The more local the decision-making, the more likely will it be to uphold liberty (or, if not, the more likely it will be for any one of us to have more of a significant say about the matter)."
You're right, in that this seems to be the assumption, and it's one I vehemently deny. One reason I deny it is because of the expanded role factions play at the local level (Madison set this out pretty well in Federalist 10.)
I have to make some empirical assumptions of my own to get this off the ground, but I think you would agree with all of them:
1. People are self-interested.
2. In terms of their political behavior, they also tend to be viciously short-sighted (since they often do not have to bear the costs of their own decisions.)
You might think these assumptions actually help out the case for local level democracy, but no:
3. Decisions to deprive a minority of their liberties are clear cases where the costs (especially short term) of such political decisions are almost entirely born by the minority.
If a state criminalizes gay sex, the cost to the non-gay majority is almost zero (sure, there's enforcement, but that's a cost people have proven they're willing to bear; besides, who says they're going to enforce it that rigorously?) The cost to the oppressed minority is almost incalculably high.
Of course, factionalism is a problem at the federal level, too, but:
4. When you increase the number of factions, you also increase the probability that factions will tend to cancel each other out. No single faction will get its way all the time.
5. Moreover, with increased number of factions, you tend to get coalition building that brings policy-making closer to the moderate center.
6. The public has proven to be fortunately fairly apathetic and evenly divided. If 49% are going to vote for one joker and 49% are going to vote for the other, no matter what, that means the remaining 2% can have great success appealing directly to the interests of politicians.
Of course, this last point can also be used to criticize democracy as well. But if this is so, it is also so at the local level.
Finally, there's the entire issue of how the structure of the Supreme Court tends to limit the scope of its decision-making. More or less, it has to wait for someone to bring a case. It has to explain its reasoning, something voters never have to do. It's also bound by precedent -- something one might think Hayekians would find appealing.
Really, it would be nice if certain decisions were taken entirely out of the hands of both democracy and the judiciary. And Kelo certainly shows that the Supreme Court isn't flawless -- but look, even there (and in other places), the problem wasn't that the SC asserted too much independence. Rather, the problem was that it ceded too much control over economic matters to the legislative branch.
Since the end of the Lochner era, that's been an issue. But it started not with activist judges thinking that legislatures "needed" that kind of control. Rather, it started when politicians (e.g. FDR) began to demand that kind of control, and hinted that they were willing to stack the court to get it.
I'm not sure you can blame the Supreme Court for all of that.
Best,
Terrence
Posted by: Terrence Watson | 2008-06-30 11:45:25 AM
Let me just preface this by saying I'm not a libertarian.
I don't have a problem with vices, per se. I wouldn't mind living next to a brothel as long as I didn't know it was a brothel. As long as their "privacy" is really private. I don't propose putting cameras into anyone's bedrooms to find out if they're breaking the law. But if that brothel has girls walking around skimpily dressed outside, feeling up Johns in the street, and cars noisily coming and going all hours of the night, then I don't want it next door to me.
Similarly someone else might be fine with living next door to a brothel, but wouldn't be able to stand living next door to a gun range. To each his own. I'd much rather live next to the gun range, but that's partially because of the kind of political views I have.
The easily solution is for different states and counties to have differing laws and then you can live where you want under the laws you choose. That is the basis of the constitutional system. The federal government isn't supposed to decide these things - state governments decide them according to the restrictions and methods written into the state constitution.
When the federal government gets involved in deciding what laws will be in force everywhere then you have tyranny. If you don't like the way it is, you can no longer "vote with your feet" and choose the laws you want to live under.
Las Vegas allows lots of gambling and casinos. Los Angeles does not. Pick your place to live.
I would love to see federal drug laws get repealed. Perhaps California would be marijuana friendly while Utah would not. Again, you have the same choice - pick where you live.
We can see the success of differing laws in the CCW legislation. First one or two states took the "shall issue" plunge. After other states saw how successful it was, most states have shall issue laws. Vermont doesn't require a license to carry concealed. California doesn't have shall issue laws. Pick where you want to live.
Posted by: Elias | 2008-06-30 1:41:18 PM
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