I found Ivan Jankovic’s recent piece against the “libertarian centralism” of Richard Epstein and David Bernstein to be extremely thought-provoking, but I wish to play devil’s advocate and present a contrary view, defending Epstein and Bernstein. Jankovic’s criticism centers around Epstein’s and Bernstein’s advocating that the federal government use the Fourteenth Amendment to strike down anti-libertarian state laws, and Jankovic complains that this centralizes federal power, the opposite of what libertarians like Epstein and Bernstein ought to be advocating. I find Jankovic’s thesis to be very compelling and persuasive, and certainly worthy of great respect, but I nevertheless beg to differ with him.

Jankovic argues that Epstein and Bernstein misinterpret the Fourteenth Amendment. The authors of that amendment, Jankovic says, intended the amendment to merely constitutionalize the Civil Rights Act of 1866, which protected only the most basic rights of blacks, such as the right to own property, but it did not intend to incorporate the Bill of Rights, and that the concept of incorporation was invented only in 1897. I would respond that while Jankovic is probably correct, this is irrelevant. The intent of the authors of a contract should certainly be relied on to help clarify the meaning of the contract whenever that meaning is unclear or uncertain, but it cannot be used exclusively. As Lysander Spooner argued in The Unconstitutionality of Slavery, if authors of a contract wrote one thing in a contract but intended something else, something more selfish and nefarious, in their hearts, as a conspiracy, would anyone dare say that their intent overrides the words of the contract? Of course not. The words of the contract themselves are what is ultimately binding. The original intent of the authors might help us clarify what the words mean in a case of doubt, but in the end, it is the words themselves that are binding. Therefore, I would say, regardless of what the authors of the Fourteenth Amendment intended, the fact is that the language of the Fourteenth Amendment is extremely — I would say dangerously and foolishly — broad, and can certainly be read as guaranteeing every conceivable human right imaginable, similar to the Ninth Amendment. Of course, rights are only negative, never positive, but the point is that the Fourteenth Amendment, due to poor writing, seems to guarantee every negative right conceivable. If we are to blame anyone for this fact, let us blame the authors of the amendment, not Epstein and Bernstein, for they can only work with what is given them.

I would also note that what Epstein and Bernstein are really advocating, is that the federal government may nullify laws. That is, they are not saying that the federal government has additional power to legislate additional laws — whether via Congress or the Supreme Court — but only that the federal government can eliminate laws already in existence.[i] I am reminded of Thomas Woods’s argument,[ii] when discussing the allegation that interposition and nullification by states of federal laws might lead to chaos: Woods replied that a libertarian would say that heck, if we just randomly started nullifying every second law, without even reading them, we would all be better off. The libertarian is not troubled by the idea of nullification of law, because he figures that most of the laws are despotic and tyrannical anyway. So too here, I say: if we give the federal government the power to nullify state laws, but not the power to legislate anything new in their place, what libertarian could object? I am terrified by judicial legislation, but for that matter, I am equally terrified by Congressional legislation, and I am alarmed by neither judicial nor Congressional nullification. Judicial activism is horrifying when used to legislate new law, but wonderful when used to nullify existing law.

Jankovic complains that Epstein and Bernstein legitimize the Supreme Court’s striking down laws that it believes to have been enacted for the sake of rent-seeking, rather than for the public good; Jankovic says,

An especially worrying sign is that both Epstein and Bernstein agree that the proper role of the Supreme Court should be not only to impose classical liberalism from the bench but also to arbitrate in the disputes over whether any particular law was in the “public interest,” or instead motivated by selfish rent-seeking.

But I respond, what else is the General Welfare Clause for? The very purpose of that clause is precisely to forbid any form of pork-barrel and rent-seeking and the like, and to make legal only those laws that benefit everyone equally. Of course, the General Welfare Clause applied only to the federal government, not to the states. Therefore, we are right back to the debate about just what the Fourteenth Amendment means, which I have already discussed; perhaps the authors of the Fourteenth Amendment never mention to convey the impression that the General Welfare Clause applies to the states, but if that was their intent, they should have done a better job writing the amendment.

In that connection with the General Welfare Clause being enforced by the Supreme Court against the states, Jankovic adds,

What special knowledge or comparative advantage the nine unelected and politically well-connected lawyers in Washington DC have in deciding ethical and economic issues like this? … One wonders why we need politicians, elections, and legislatures at all if the judges can replace them so nicely with their “wide variety of techniques” for detecting the “true” public interest. If judges really do have such a comparative advantage over politicians in deciding these matters, why not change the name from “Supreme Court” to “Supreme Ethical Council,” as Antonin Scalia once suggested? Or perhaps the “Central Planning Board”? Both Epstein and Bernstein try to brush aside the critiques of their paradigm as just a matter of their critics’ “excessive devotion to democratic institutions” (sic).

I agree with Epstein’s and Bernstein’s rejection of “their critics’ ‘excessive devotion to democratic institutions’ (sic).” While the Supreme Court has certainly engaged in some dastardly legislation, surely Congress has done no different! I am not afraid of judicial activism, but rather, I am afraid of governmental activism! Murray Rothbard has said,[iii]

Professor Leoni’s major thesis is that even the staunchest free-market economists have unwisely admitted that laws must be created by governmental legislation; this concession, Leoni shows, provides an inevitable gateway for State tyranny over the individual. The other side of the coin to increasing intervention by government in the free market has been the burgeoning of legislation, with its inherent coercion by a majority — or, more often, by an oligarchy of pseudo-“representatives” of a majority — over the rest of the population. In this connection, Leoni presents a brilliant critique of F.A. Hayek’s recent writings on the “rule of the law.” In contrast to Hayek, who calls for general legislative rules as opposed to the vagaries of arbitrary bureaucracy or of “administrative law,” Leoni points out that the real and underlying menace to individual freedom is not the administrator but the legislative statute that makes the administrative ruling possible. It is not enough, demonstrates Leoni, to have general rules applicable to everyone and written down in advance; for these rules themselves may — and generally do — invade freedom.

So I am not so concerned if judges invade the prerogatives of the legislature, because I believe both are threats to liberty, and to prefer the legislature over the judiciary is to miss the point.[iv] Jankovic says, “Most of the Founders were devoted to democracy no less than the people our professors criticize”, but I beg to differ. Rose Wilder Lane incisively notes,[v] the Framers

had no fantastic faith in The People; no more notion of consulting or obeying Public Opinion than Wilbur Wright had when he was trying to invent an airplane.

She adds,[vi]

For why does anyone suppose that a majority of citizens should control their Government? No one imagines that a majority of passengers should control a plane. No one assumes that, by majority vote, the patients, nurses, elevator boys and cooks and ambulance drivers and internes and telephone operators and students and scrub-women in a hospital should control the hospital. Would you ever ride on a train if all passengers stepped into booths in the waiting-room and elected the train crews by majority vote, as intelligently as you elect the men whose names appear in lists before you in a voting booth? … This fantastic belief is no part of the American Revolution.

About John Adams, John Eidsmoe says,[vii]

He made this point [against democracy] in a letter to Jefferson in 1815. “The fundamental article of my political creed is, that despotism, or unlimited sovereignty, or absolute power, is the same in a majority of a popular assembly, an aristocratical council, an oligarchical junto, and a single emperor. Equally arbitrary, cruel, bloody, and in every respect diabolical.”[viii] In response to the slogan of the French liberals that “vox populari est vox dei” (“The voice of the people is the voice of God”), Adams inquired, “If the majority is 51 and the minority 49, is it certainly the voice of God? If tomorrow one should change to 50 vs. 50, where is the voice of God? If two and the minority should become the majority, is the voice of God changed?”[ix] In contrast to that notion Adams declared that vox populari est non vox dei; that the voice of the people was “sometimes the voice of Mahomet, of Caesar, of Catiline, the Pope, and the Devil.”[x]

I would also note that it is a long-standing component of American Constitutional tradition, long before the (alleged) ratification of the Fourteenth Amendment, that there is a Higher Law tradition that is binding, irrespective of what any constitution may say. If this is true, then the power of nullification might be virtually unlimited, and it may be that everyone has the power to nullify the laws of everyone else. For example, James Otis, Jr., in The Rights of the British Colonies Asserted and Proved (1763), writes (emphasis in original),

To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere [to declare the law] only; — jus dare [to make the law], strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.[xi]

James Wilson, one of the Framers at the original Constitutional Convention, said in law lectures at the College of Philadelphia in 1789, that[xii]

That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles [i.e. Scripture] the divine monitors without [i.e. outside, external to] us.… As promulgated by reason and the moral sense it has been called natural; as promulgated by the holy scriptures, it has been called revealed law. As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations. But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source; it is the law of God.… Human law must rest its authority, ultimately, upon the authority of that law, which is divine.

Finally, according to Edwin S. Corwin’s The “Higher Law” Background of American Constitutional Law,[xiii]

The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice.… There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community.

Thus, I believe that Henry David Thoreau was following finely in the Constitutional tradition when he said, of the fugitive slave laws,[xiv]

The judges and lawyers — simply as such, I mean — and all men of expediency, try this case by a very low and incompetent standard. They consider, not whether the Fugitive Slave Law is right, but whether it is what they call constitutional. Is virtue constitutional, or vice? Is equity constitutional, or iniquity? In important moral and vital questions, like this, it is just as impertinent to ask whether a law is constitutional or not, as to ask whether it is profitable or not. They persist in being the servants of the worst of men, and not the servants of humanity. The question is, not whether you or your grandfather, seventy years ago, did not enter into an agreement to serve the Devil, and that service is not accordingly now due; but whether you will not now, for once and at last, serve God — in spite of your own past recreancy, or that of your ancestor — by obeying that eternal and only just CONSTITUTION, which He, and not any Jefferson or Adams, has written in your being. The amount of it is, if the majority vote the Devil to be God, the minority will live and behave accordingly — and obey the successful candidate, trusting that, some time or other, by some Speaker’s casting-vote, perhaps, they may reinstate God. This is the highest principle I can get out or invent for my neighbors.

Likewise, I believe the Reverend Martin Luther King, Jr. was following the Constitutional tradition when he said,[xv]

One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

My point in bringing all this, is that even without the Fourteenth Amendment, it would remain a fact that any legislated law which violates natural law, would be ipso facto null and void, irrespective of what any constitution — state or federal — says. If we believe, for example, that the laws of economics are natural law, and that the laws of economics are correctly expounded by the Austrian School, then it would seem that any laws violating Austrian School economics are ipso facto illegal. Also recall that according to the common law tradition, law is to be discovered, not legislated, which means that any law which is legislated, which does not conform to natural law, is not a law at all, because it does not constitute a discovery of a preexisting natural law, but only a despotic and illegal fiat. Now, this does not necessarily mean that any given governmental body may nullify those illegal laws, because that is a matter of authority, and one governmental body may or may not have the authority to declare another governmental body’s laws to be unconstitutional. My point is only that the laws themselves would be illegal, but whether or not a given governmental body has the authority to make that declaration, is a separate matter. According to James Madison’s and Thomas Jefferson’s Virginia and Kentucky Resolutions, the states indeed have the authority to declare federal laws to be illegal, because the states were the original formers of the Constitutional compact, and they remain sovereign over and above the federal government.[xvi] My contention would be that the Fourteenth Amendment, in turn, grants the federal government the authority to nullify illegal state laws, just as the states have the authority to nullify illegal federal laws. This is not because this was the intent of the authors of that amendment, but rather, because this is what the authors wrote, in plain English, irrespective of their intent. Now, does this not do damage to the federal (i.e. compact) nature of the American Constitutional regime? It most certainly does, but the damage has already been done, and we are now only analyzing what precisely characterizes that damage. In other words, if the authors of the Fourteenth Amendment destroyed the federal nature of the American system, then so be it, and all we can do (short of amending the Constitution, or better yet, declaring with Lysander Spooner that No Treason: The Constitution [is] of No Authority) is to interpret the nature of that destruction, and let come of it what may. Unfortunately, the Fourteenth Amendment destroyed federalism, but what is done is done. I would note, however, that some precedent for the federal government’s having power over the states’ laws already existed in the original Constitution, for Article I, Section 10 contains a list of powers prohibited to the states. Now, I have not studied what sort of enforcement power the federal government had to enforce this section, but the fact remains that that section did say, for example, “No State shall … pass any … Law impairing the Obligation of Contracts”, which perhaps implies a federal power to nullify any state law violating this. All the Fourteenth Amendment would do is extend this sort of power further.

However, I will admit that in the past, I have had my misgivings about my own words. When I first read Thoreau (op. cit.), I conceded that his moral principles were completely correct, but I was afraid that if we admit that judges may nullify any law which violates a libertarian natural law, then perhaps we are conceding that judges may also nullify a law which violates a non-libertarian (and erroneous) natural law? That is, I was afraid that once we admit that the Constitution is not binding whenever it violates libertarianism, perhaps we open the door to others claiming that the Constitution is not binding when it violates a Progressive morality? Perhaps, I thought, it is better to say that the Constitution is binding no matter what, lest we open a Pandora’s Box? But since then, I have withdrawn this position, for two reasons: first, because we must accept true morality, no matter the consequences. If affirming the truth that the Constitution is not binding whenever it is unjust from a libertarian perspective, creates the possibility that Progressives will claim the same, then so be it. Truth is truth, no matter the consequences. Secondly, I am skeptical whether Progressives will really be enabled by us. After all, they will override the Constitution in favor of statism no matter what we say. They may gleefully and approvingly cite libertarian denials of the Constitution’s authority, but even without those libertarian denials, the Progressives would still advance their position nevertheless. The Progressives may cite us, and give the appearance of deriving their position from us, but in reality, they are actually not deriving their position from us at all. The Progressives will believe in a “living Constitution” and in anti-libertarian statism no matter what we say, so if we deny the Constitution’s authority for libertarian reasons, this does not in reality give strength to the Progressives. The fact is, we are saying only that the Constitution is not binding if and only if it violates libertarianism, and furthermore, we are granting any given governmental body only the authority to nullify illegal laws, not to enact new laws in their place. For example, we might say that the federal government can nullify state laws which enshrine rent-seeking, as violating the General Welfare Clause, but we are not saying that the federal government may positively enact anything new, only that it may nullify. If Progressives wish to take this statement, replace its endorsement and reliance on libertarianism with their own statism, and replace mere nullification with positive legislation, then they are changing so much of what we said into something we never said at all, that they are obviously being motivated more by their own desires than by any inspiration from us. That is, their Progressivism came first, and they are only citing us after the fact to justify a position they already arrived at anyway. If we say something that somewhat resembles what they say, they may cite us, but this does not mean they derived their position from us, only that they opportunistically took our words out of context and twisted them into the opposite of their meaning. If they are so nefarious, then they will arrive at their perverse opinions no matter what we do, and we may as well not worry about it. I am reminded of a Rabbinic aggadah (homily) in the Talmud: the Torah’s word for “God” is “Elohim”, which is actually a plural word, and furthermore, the Torah says God said, “let us create man in our image”. Moses, so says the Talmud, complained to God, “Lord, why dost thou give a pretext to the heretics?”, apparently meaning various Classical-era Gnostics and the like who used Torah texts to advance various forms of polytheism. God, so goes the Talmud, responded, “Let the heretics think what they will, for they will believe their heresy no matter what I say, but let the true believers learn from the pluralization of My name that I — so to speak — consulted with the angels before I created the world, teaching that one should always consult with his inferiors before taking action, and never act unilaterally based even on one’s own legitimate authority.” (Of course, the simple interpretation is that the Torah is merely using the royal plural when speaking of God.) So too, I say, the statists will say what they will, no matter what we say, so why worry? Finally, as I said earlier, we would all be better off if we just nullified every second law indiscriminately, so it really does not matter whether laws are nullified for libertarian or anti-libertarian reasons, because after all, no libertarian can really object to the nullification of a law, no matter what reason motivated it.

Nevertheless, I still have sympathy for Jankovic’s position that allowing the federal government to nullify state laws, is an invitation to federal tyranny. Thomas Woods, in one of his lectures,[xvii] expressed similar misgivings about the Fourteenth Amendment, saying that he is conflicted, because on the one hand it seems fantastic for anyone to nullify unjust laws, whether it is the states nullifying federal laws or the other way around; but that on the other hand, he is afraid that whenever it is the federal government nullifying state laws, that the general strengthening of the federal government’s power in general, will lead to tyranny in the future, and that perhaps we would be better off if the federal government did not nullify any state laws, even obviously unjust ones, lest this grant of authority eventually be used for evil rather than for good. Indeed, it has been well said that no one should ever trust power to the government unless he feels that that power will be safe even when his worst enemy comes to head the government. And John Cotton rightly said,[xviii]

Let all the world learn to give mortal men no greater power than they are content they shall use — for use it they will.… And they that have liberty to speak great things, you will find It to be true, they will speak great blasphemies.… It is therefore most wholesome for magistrates and officers in church and commonwealth never to affect more liberty and authority than will do them good, and the people good: for whatever transcendent power is given will certainly overrun those that give it and those that receive it.… It is necessary, therefore, that all power that is on earth be limited, church-power or other. If there be power given to speak great things, then look for great blasphemies, look for a licentious abuse of it. It is counted a matter of danger to the state to limit prerogatives; but it is a further danger not to have them limited: they will be like a tempest if they be not limited. A prince himself cannot tell where he will confine himself, nor can the people tell; but if he have liberty to speak great things, then he will make and unmake, say and unsay, and undertake such things as are neither for his own honor nor for the safety of the state.

So I certainly have sympathy for Jankovic’s position. Nevertheless, as I said, I see no danger in the power to nullify anti-libertarian laws, and if anyone wishes to turn this into something else, then they will do so anyway, with or without us. Furthermore, as I said, the Fourteenth Amendment exists anyway. If it were up to me, I would make sure the Fourteenth Amendment was never ratified in the first place, because I do believe it did grave damage to the federal system, in which states were supreme over the federal government. But the fact is that it is not up to me, and the Fourteenth Amendment does exist, and so all we can do is interpret what it means. And in my eyes, the Fourteenth Amendment declares — whether its authors meant it to or not — that the states must protect rights and liberties, and this indeed seems to grant the federal government authority to nullify anti-libertarian state laws, no matter how foolhardy such a grant of power is. If anyone wishes to argue that we ought to repeal the Fourteenth Amendment, or that the Fourteenth Amendment was never legally ratified in the first place, due to the various Reconstruction corruption and coercion that surrounded its ratification, then I will wholeheartedly endorse such an argument, but until then, the Fourteenth Amendment is what it is, whether we like it or not. I certainly agree that we should never grant any government any authority whatsoever, for it certainly will be abused, but I believe that this guarantee of future abuse of power is inherent in the very nature of government, and will occur no matter what we say, and so we may as well say what seems true in the abstract, irrespective of the practical consequences. In other words, the Progressives will abuse the Fourteenth Amendment and use it to advance statism no matter what we say, and even without the Fourteenth Amendment’s existence at all, they would find some other clause to justify them, so we may as well interpret the Fourteenth Amendment in whatever manner seems most correct in theory.

Finally, I would note that the nullification is bidirectional: if the Fourteenth Amendment allows the federal government to nullify state laws which violate “liberty of contract”, then by the same token, states may use their power of interposition and nullification (see the Virginia and Kentucky Resolutions) to nullify any federal laws that violate that same “liberty of contract” (the Ninth Amendment would guarantee that right, and furthermore, the doctrine of enumerated powers would say that because the power to violate liberty of contract is nowhere delegated to the federal government in the first place, that therefore, the federal government has no such power).[xix]

But after all, I find Jankovic’s position to be extremely compelling and persuasive, and indeed, his own criticisms echo ones which I have seriously considered myself. In the end of the day, I believe we can both agree to oppose with all our might “Our Enemy, the State”, the particular details of Constitutional law be them what they may. The fact is, the Constitution is useless for any libertarian. The only benefit it has is, I believe, something Woods has said several times in his lectures: that any time any government violates its constitution, we can use its constitution to embarrass it. Citing the Constitution will never help us limit the government, but it may help us raise popular ire and discontent, and undermine the government’s legitimacy. As Étienne de La Boétie shows us, the government ceases to have power as soon as the people realize that they alone grant the government power and thereby hold themselves in slavery. So perhaps we should indeed use the Fourteenth Amendment to incorporate the Bill of Rights, so as to give us one more tool by which to embarrass despotic state governments?

Where I live, in Israel, there is no constitution at all, and the Supreme Court has seen fit to unilaterally ratify what it personally considers to be a constitution. Unsurprisingly, the Supreme Court has been harshly castigated for this.[xx] I, for my part, am sure that even if Israel had a constitution, that it would be a horrible collection of socialist claptrap, no better than what the Israeli Supreme Court has arrogantly ratified unilaterally. Nevertheless, I like to condemn the Supreme Court regarding all this, simply because it is one more opportunity for me to disgrace the government here. Am I being disingenuous? Certainly. I am condemning the Israeli Supreme Court for unilaterally ratifying a constitution, rather than relying on the parliament or on some popular ratifying convention, even though I would equally condemn whatever constitution may be produced by those bodies. But so be it; I will attack the State by whatever means I can, by whatever arguments will bring it into disrepute.

In the end, the fact is, as Murray Rothbard says (emphasis in the original),[xxi]

The libertarian is also eminently realistic because he alone understands fully the nature of the State and its thrust for power. In contrast, it is the seemingly far more realistic conservative believer in “limited government” who is the truly impractical Utopian. This conservative keeps repeating the litany that the central government should be severely limited by a constitution. Yet, at the same time that he rails against the corruption of the original Constitution and the widening of federal power since 1789, the conservative fails to draw the proper lesson from that degeneration. The idea of a strictly limited constitutional State was a noble experiment that failed, even under the most favorable and propitious circumstances. If it failed then, why should a similar experiment fare any better now? No, it is the conservative laissez-fairist, the man who puts all the guns and all the decision-making power into the hands of the central government and then says, “Limit yourself”; it is he who is truly the impractical Utopian.

I am a BA student in political science at the Hebrew University of Jerusalem.

[i] Actually, as Jankovic shows, Epstein and Bernstein do not advocate nullification alone, but also some decidedly anti-libertarian positive legislation by the federal government, such as antitrust law. I agree with Jankovic that Epstein and Bernstein are to be censured for this, but I believe the primary criticism ought to be that antitrust law is a form of economic protectionism that is to be rejected for its inherent injustice from a libertarian perspective. That is, I would criticize Epstein and Bernstein on their own ground, that if the Fourteenth Amendment incorporates libertarianism, then this invalidates antitrust law.

[ii] I forget precisely which lecture of Woods’s it was. I have heard two different lectures series of Woods’s, and it might have been in either one. The series where he made the point I cite, would have to have been either:

1. “The Truth About American History: An Austro-Jeffersonian Perspective” (http://mises.org/media.aspx?action=category&ID=79); within that series, it would have been one of the following lectures:

1. “Thomas Jefferson and the Principles of ’98”

2. “States’ Rights in Theory and Practice”

3. “The States’ Rights Tradition Nobody Knows”

2. “The Politically Incorrect Guide to American History: Lecture Series” (http://mises.org/media.aspx?action=category&ID=93); within that series, it would have been the lecture, “The Principles of ’98”.

[iii] “Does Law Require Legislation?” (book review of Freedom and the Law by Bruno Leoni), http://www.lewrockwell.com/rothbard/rothbard197.html

[iv] However, it is worth noting that judges cannot alter the Constitution, and that if their rulings contradict the Constitution, then their rulings are ipso facto null-and-void, and that furthermore, their rulings are relevant only to the cases they deal with, and not to future cases. At most, a judge has the authority to rule on the case at hand, but not on future cases. George Bancroft argues this in A Plea for the Constitution of of the United States, Wounded in the House of Its Guardians (1884, http://www.constitution.org/gb/gb-plea.htm), regarding the Legal Tender Cases: Bancroft argues that no matter what the Supreme Court may say to the contrary, the Constitution permits only gold and silver to be legal tender; and furthermore, that even if (for the sake of argument) the Supreme Court has the power to uphold unconstitutional legal tender laws that legitimize fiat currency, in specific, given civil cases brought to suit, that this does not affect future cases of different parties and different contracts, for even if the Supreme Court nullifies the Constitution now, the Constitution retains its authority in future cases. In other words, if a law says that a debt may be paid in fiat currency, and the Supreme Court upholds this law, then that court ruling is null-and-void, and that even if the ruling is binding, it is binding only for that case, not for future cases. Of course, a libertarian would abhor the fact that the Constitution recognizes any legal tender laws in the first place, even legal tender laws that are limited to ratifying gold and silver as legal tender.

[v] The Discovery of Freedom: Man’s Struggle Against Authority (1943), p. 197.

[vi] Ibid., pp. 207f. Emphasis in original.

[vii] Christianity and the Constitution: The Faith of our Founding Fathers (Grand Rapids, Michigan: Baker Book House, 1987), p. 291.

[viii] Eidsmoe’s citation reads, “Adams to Jefferson, November 13, 1815; reprinted in Wilstach, Correspondence, pp. 117-18.” On p. 257 of Eidsmoe, note 1, the full citation for Wilstach is “Correspondence of John Adams and Thomas Jefferson 1812-1826, ed. Paul Wilstach (Indianapolis: Bobbs-Merrill, 1925)”.

[ix] Eidsmoe’s citation reads, “John Adams, handwritten note on his copy of Jean-Jacques Rousseau’s Discours sur l’inegalite (Discourse on Inequality); quoted in Haraszti, Adams and the Prophets, p. 93.” On page 273, note 49, the full citatio nfor Haraszti is “Zoltan Haraszti, John Adams and the Prophets of Progress (Cambridge, Massachusetts: Harvard Universit Press, 1952”.

[x] Eidsmoe’s citation reads, “John Adams; quoted by Chinard, Honest John Adams, p. 248.” The original source is a letter by Adams to his wife Abigail, 15 April 1794, and the full passage reads, “Vox populi, vox Dei, they say, and so it is, sometimes; but it is sometimes the voice of … ”. On page 257, note 2, the full citation for Chinard reads, “Gilbert Chinard, Honest John Adams (Boston: Little, Brown & Co., 1933, 1961).”

[xi] However, Otis goes on to say, “and so it would be adjudged by the parliament itself, when convinced of their mistake”, and he argues that until the parliament repeals their own illegal law, the illegal law is still legally binding. I have not studied Otis deeply enough, and so I do not know whether he honestly believes this, or whether he is saying this in order to placate the British, to try to present himself as loyal and moderate. Be that as it may, I reject this notion that we must wait for the government to judge its own laws illegal.

[xii] Quoted in Eidsmoe, op. cit., pp. 44f. Eidsmoe’s citation reads, “James DeWitt Andres [sic], Works of Wilson (Chicago, 1896), 1:91-93; quoted by Charles Page Smith, James Wilson: Founding Father (Chapel Hill: University of North Carolina Press, 1956), p. 329.” The name “Andres” should read “Andrews”.

1) [xiii] (Ithaca, NY: Cornell University Press, 1955), p. 4, quoted in Steven Alan Samson, “The Covenant Origins of the American Polity”, Contra Mundum 10 (1994), pp. 26-38 (http://works.bepress.com/steven_samson/3), at p. 37.

[xiv] “Slavery in Massachusetts”, http://thoreau.eserver.org/slavery.html

[xv] “Letter from a Birmingham Jail”, http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

[xvi] I would note that this interpretation follows straightforwardly from the theory of Johannes Althusius’s Politica, a seminal work on federalism, which described federalism as a system by which parties contract with each other to create higher authorities, for the contracting parties’ own convenience. Althusius wrote in the Reformed Christian perspective, in which perspective it was a commonplace for centuries to assume the legitimacy of “interposition of inferior magistrates”. For example, John Calvin wrote in The Institutes of the Christian Religion, 4.20.31 (http://www.ccel.org/ccel/calvin/institutes.vi.xxi.html):

For when popular magistrates have been appointed to curb the tyranny of kings (as the Ephori, who were opposed to kings among the Spartans, or Tribunes of the people to consuls among the Romans, or Demarchs to the senate among the Athenians; and perhaps there is something similar to this in the power exercised in each kingdom by the three orders, when they hold their primary diets). So far am I from forbidding these officially to check the undue license of kings, that if they connive at kings when they tyrannise and insult over the humbler of the people, I affirm that their dissimulation is not free from nefarious perfidy, because they fradulently betray the liberty of the people, while knowing that, by the ordinance of God, they are its appointed guardians.

Notice that Calvin spoke of the “three orders, when they hold their primary diets”. Apparently, Calvin was influenced by the feudal order, in which certain traditional authorities (see Max Weber’s definition thereof) were considered to have certain rights and obligations. Indeed, in the original Magna Carta of 1215, as originally promulgated by the barons, we read, in paragraph 61 ( removed in subsequent editions, which were promulgated not by barons, but by the king) (http://www.constitution.org/eng/magnacar.htm),

Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moveover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is entrusted,to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another.

In other words, the original Magna Carta granted the barons the authority to take action against the king, and John Calvin assumed that the feudal authorities — namely the three estates or diets — had the authority to interpose against the king. I would argue that the compact theory expressed in the Virginia and Kentucky Resolutions is not any innovation by Madison and Jefferson, but is nothing more than the expression of feudal notions of traditional authority; and of federalism, as begun by early Reformed theologians such as Calvin and perfected in Althusius, who was also Reformed. As best I can figure, the colonial Americans simply replaced traditional feudal authorities with their own colonial authorities, and later, the states, but otherwise, they retained the same notions of federalism and interposition which had become Reformed commonplaces.

And cf. Charles S. McCoy and J. Wayne Baker, Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition (Louisville, Kentucky: Westminster John Knox Press, 1991), arguing that Calvin’s contemporary and fellow Reformed theologian Heinrich Bullinger of Zurich, Switzerland founded the covenantal tradition, which reached its apogee in Althusius, and which influenced John Locke, James Madison, and James Madison’s own teacher, the Reverend John Witherspoon.

It is also worth noting that the colonial American obsession with transforming king-granted charters which really could have been rightfully revoked at the king’s whim, into sacrosanct rights which could never be repealed, no matter what, also followed a Reformed trope; for example, Sir Edward Coke, a Puritan (English Reformed), had resurrected the Magna Carta and transformed it from an obscure, forgotten document lacking any authority, into a holy writ of social contract; and François Hotman, a Huguenot (French Reformed) had collected every French feudal document limiting the king which he could find, and in his Franco-Gallia, he argued that they all constituted binding social contract. I believe that we can understand American history and the Constitution much better if we look at what I believe is their Reformed Christian foundation. See, for example, Mark Hall, “Vindiciae, Contra Tyrannos: The Influence of the Reformed Tradition on the American Founding”, APSA 2010 Annual Meeting Paper, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1644085; Douglas F. Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through 18th Centuries (Phillipsburg, New Jersey: Presbyterian and Reformed Publishing Company, 1992); John Witte, Jr., The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge, UK: Cambridge University Press, 2007); David W. Hall, Genevan Reformation And The American Founding (Lanham, Maryland: Lexington Books, 2003).

[xvii] Again, I forget which lecture by Woods. It would have been either the lecture, “The Fourteenth Amendment”, in the series, “The Truth About American History: An Austro-Jeffersonian Perspective” (op. cit.); or else the lecture, “Reconstruction”, in the series, “The Politically Incorrect Guide to American History: Lecture Series” (op. cit.).

[xviii] “Limitation of Government”, http://www.flatheadreservation.org/index.php/texts/limitation_of_government/

[xix] Indeed, it was based on this doctrine that even Alexander Hamilton said that the entire Bill of Rights was superfluous (Federalist no. 84): “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” Jefferson held the same position (all emphases are added):

· In a letter to Samuel Miller of 23 January 1808 (http://www.stephenjaygould.org/ctrl/jefferson_miller.html), regarding the president of the United States declaring days of thanksgiving, he said, “I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.”

· In the Kentucky Resolution, regarding the Alien and Sedition Acts, in which the national government restricted sedition, he said, “Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that ‘the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people’; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people.”

In other words, the Bill of Rights is not even necessary to be invoked; the mere fact that the Constitution never authorizes the federal government to legislate about a given matter in the first place, is decisive.

[xx] See, for example, Richard Posner, “Enlightened Despot”, The New Republic, 23 April 2007, http://ww.tnr.com/article/enlightened-despot; and Robert H. Bork, “Barak’s Rule”, Azure, Winter 5667 / 2007, pp. 125-132, http://www.azure.org.il/download/magazine/1119AZ_27_bork_review.pdf.

[xxi] For a New Liberty: The Libertarian Manifesto (New York, New York: Macmillan Publishing Co., Inc., 1978 [1973]), pp. 382f.