Neapolitan Note By Roderick on July 29, 2010 8 Tonights Mystery Guest at Mises U. was Andrew Napolitano. Left-Libertarian
I bet he gave a great speech. Let’s hope he didn’t use the old “soothsayer” story as his intro. Not that it’s bad mind you, just that I’ve heard it a dozen times now.
No soothsayer intro. Yes, it was a rousing speech that elicited much applause.
He placed great stress on the Constitution’s being a compact among the several states rather than among “we the people.” He took this to have libertarian implications, since if it’s a compact among states then the states can nullify unconstitutional federal legislation. It seems to me that the alternative interpretation would have even more libertarian implications (allowing nullification by individuals); but I don’t really have a dog in that fight, since I don’t regard the Constitution as a valid compact of anyone with anyone.
He was asked a) whether he preferred the Articles of Confederation to the Constitution, b) whether judges should go by natural law rather than the Constitution when the two conflict, and c) whether he was an anarchist. He said yes to (a), said something I interpreted as yes to (b), and wriggled ambiguously out of (c).
Did you ask anything of the judge? I think there’d be a good conversation to be had between the two of you. I just wish I could record it.
JAN is a great guy but I find it puzzling he has a show on Fox News… I mean you wouldn’t see Sheldon Richman or Lew Rockwell doing a show for them after all. Nor could I imagine Glenn Beck having an intelligent conversation about anarchism with you Roderick!
When the good Judge asks for Hamilton’s argument for statism, of course, he gets “that’s impossible” and “we need to be kept in line” and let’s not forgot that Jennifer has never even thought of Hamilton’s argument.
First, it’s sad that Misesians cannot clearly present the other side of the argument. Second, the Judge has obviously never considered statism as a response to derivatives markets that capture $700 trillion. I’d like to know how the Judge’s internal Jefferson would feel about that…
Roderick, I just listened to the first half of the speech, including the part where a student said “you sound like an anarchist.” Napolitano replied, “You don’t hear me denying anything, do you?” Then he said “taxation is theft.” This is heroic and pretty clearly anarchist. What wriggling? (Unless he does it later; I didn’t finish the Q&A yet.) on the Stossel show on libertarianism, http://thewhitedsepulchre.blogspot.com/2010/07/gillespie-stossel-postrel-and.html he basically came out for private defense etc. He was very ancap there.
As for his comments on the Constitution: it cannot be plausibly argued that there is a constitutional right to individual nullification. In my view there is nothing wrong with being honest about the Constitution: where it is libertarian, and where it is not. And the nullification argument flows from honestly recognizing the nature of the original constitution. The idea of nullification by individuals is not supportable by the Constitution, so I see no grounds for criticizing Napolitano for not making a bad argument.
His anarchist-sounding line “you don’t hear me denying anything” was immediately followed (after the applause) by a minarchist-sounding line that was something like “the sole legitimate function of government is to protect rights.” The combination of the two is what created the ambiguity.
Well, I’m not so sure. The preamble’s “We the people” could suggest that the Constitution is a compact among the people rather than the states; even apart from that, I’d say that the ninth and tenth amendments make a good case for individual secession (assuming “people” refers, as usual, to individuals).
But my point was a different one. He was saying that it’s a good thing that the Constitution is a compact among states and not people, since given that the parties to a compact can nullify actions contrary to it, it follows that states can nullify. So the argument he gave for thinking that states can nullify would be an equally good (or bad) argument for saying individuals could nullify if the state were instead regarded as a compact among individuals; that’s why it’s weird that he thinks it’s good that it’s not.
Well, I think they’re both bad arguments (since I don’t regard the Constitution as a valid compact among either states or individuals). So I’m not saying he should have made this bad argument instead of that one. Rather, I’m saying that it’s odd to prefer the bad argument with the less libertarian conclusion over the bad argument with exactly the same structure but a more libertarian conclusion.
Roderick, “Well, I think they’re both bad arguments (since I don’t regard the Constitution as a valid compact among either states or individuals).”
Well, I don’t know what his real motivation or perspective was, but I see nothing wrong with urging the feds to stick by the limitations in the document they themselves pay lip service to, that they claim authorizes and limits them. As long as one is careful to avoid accepting the argument that they are legitimate (which is one problem with the arguments made by Alan Gura and others before the Supreme Court when they start making mainstream-type legal arguments to overturn gun laws–they often end up having to concede the state’s legitimacy etc.).