Austro-Athenian Empire

[cross-posted at Liberty & Power]

The document whose anniversary we celebrate today declares:

We hold these truths to be self-evident:

• that all men are created equal
• that they are endowed by their Creator with certain unalienable rights
• that among these are life, liberty and the pursuit of happiness
• that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed
• that whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. …

[W]hen a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

For most libertarians these words are what Independence Day is all about. But in an LRC editorial Kevin Gutzman takes on a number of what he regards as “myths” about the Fourth of July, and one of these “myths” is that the “chief legacy of the 4th of July is the political philosophy set out in the Declaration of Independence.”

Part of the reason for Gutzman’s animus against this view is that “political radicals have argued for understanding the Declaration as a general warrant for government to do anything it likes to forward the idea that ‘all men are created equal.’” I note in passing that this is not a good reason to downplay the Declaration’s political philosophy – because that political philosophy does not authorise governments to do “anything they like” to forward anything. On the contrary, it denies governments any right to act in ways that deviate from the consent of the governed or violate their rights to life, liberty, and the pursuit of happiness, and lays it down as a duty to overthrow and destroy any government that does so. The fact that statists have misinterpreted or distorted the Declaration’s words is no objection to those words themselves. (As for the true meaning of “equality” in the Declaration’s sense, see here and here.)

But what, in any case, is Gutzman’s argument against the importance of the Declaration’s political philosophy? Here it is:

The Declaration of Independence was the work of a congress of representatives of state governments. Congressmen were not elected by voters at large, but by state legislatures, and their role (as John Adams, one of them, put it) was more akin to that of ambassadors than to legislators. They had not been empowered to dedicate society to any particular political philosophy, but to declare – as the Virginia legislature had told its congressmen to declare – that the colonies were, “and of right ought to be, free and independent states.” In other words, the Declaration was about states’ rights, not individual rights, and the Congress that adopted it had no power to make it anything else. All the rest of the Declaration was mere rhetorical predicate.

In short, Gutzman’s position is that the Declaration of Independence derived its delegated authority from the state legislatures, and that the statement of principles in its preamble, insofar as it goes beyond that delegation, has no legal standing.

It seems to me that this gets things completely reversed. Under positive law, the state legislatures had no authority to declare independence, because they were established by colonial charters, charters that of course made no provision for independence; and the state legislatures could hardly delegate to the Continental Congress an authority they never possessed. Under natural law, the state legislatures had no authority to do anything, because states, as claimants of territorial monopoly, are inherently illegitimate; and once again, they could not delegate what they did not have. Thus the Declaration’s only source of authority, the only aspect of it that has any legal standing, is its political philosophy. The Declaration did not – because it could not – derive its authority from the state legislatures; they had none to give. The source of authority it does name is the only legitimate political authority it could possibly claim: the Natural Law under which all rational beings are free and equal. (Against my claim that the positive law provided no basis for independence, it might be objected that references to the authority of natural law were often incorporated into positive law itself, as per Blackstone’s famous declaration that under English law anything contrary to natural law is illegal positively as well. But this argument could hardly be used to downplay the importance of the Declaration’s preamble.)

Spooner, as usual, says it best:

The governments, then existing in the Colonies, had no constitutional power, as governments, to declare the separation between England and America. On the contrary, those governments, as governments, were organized under charters from, and acknowledged allegiance to, the British Crown. Of course the British king never made it one of the chartered or constitutional powers of those governments, as governments, to absolve the people from their allegiance to himself. So far, therefore, as the Colonial Legislatures acted as revolutionists, they acted only as so many individual revolutionists, and not as constitutional legislatures. … It was, therefore, as individuals, and only as individuals, each acting for himself alone, that they declared that their consent – that is, their individual consent, for each one could consent only for himself – was necessary to the creation or perpetuity of any government that they could rightfully be called on to support. … Thus the whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived.

What, then, is the real meaning of the Fourth of July? It is that you – not as a citizen, whether state or federal, but as an individual – are entitled under natural law to life, liberty, and the pursuit of happiness; that you need be subject to no authority to which you have not consented; and that it is your right, indeed your duty, to throw off any putative authority – whether you have consented to it or not – if it proves systematically oppressive.

And this idea that all authority rests on the consent of the governed achieves its fullest revolutionary potential when coupled with La Boétie’s insight that all power rests on the consent of the governed also. The revolution will come when enough of us realise our right, duty, and ability to ignore the state.

Declare your independence! Withdraw your consent! Free your mind, and the rest will follow ….

[cross-posted at Liberty & Power]

In the latest (August 2007) issue of Liberty, Bruce Ramsey writes:

A libertarian blog considered the argument, raised by antisecessionists, that a region can’t secede without paying back some common liability to the nation. The most obvious one is the national debt.

The blogger asked the reader to accept that argument for a moment, and apply it to the individual. Would we ban an individual from moving out of his country because he hadn’t paid his share of the national debt? No. It would be barbaric to do that. East Germany used an argument like that for why it wouldn’t let citizens cross the barbed wire. And so, if we would not apply that to an individual, logically we cannot apply it to a region. Therefore, a region can secede, irrespective of any liability to the country it is part of.

And I thought: here is an argument wholly uninterested in consequences – such consequences as what the liability is, how big it is, who was supposed to pay it, and who will have to pay it now. Such arguments absolve libertarians from having to think about any of that stuff. The principle is all that matters – though it occurs to me that if your principle allows you to get away with all that, maybe you have the wrong.

The argument also implies that quantity doesn’t matter. If one person can do a thing, 5 million can. But life isn’t like that. One dog defecates on your lawn and you are annoyed; 5 million do it, and you are inundated. Your problem is of a different quality. Quantity becomes a quality.

And yes, I know, there is the problem of drawing a line. The philosophers ask how many grains of sand it takes to make a heap, and I do not have the answer. But the fact is, there are grains and there are heaps, and they are not the same.

I suspect I may be the “libertarian blogger” to whom Mr. Ramsey refers. At any rate, I gave precisely this argument in a May 23rd post. If so (or even if not), let me reply to his criticisms.

First: I certainly do not regard consequences as irrelevant to political conclusions. As I’ve argued here and here, consequences are among the factors to be taken into account in framing general principles. But that’s precisely where consequences need to be taken into account – in the initial framing of the principles. Waiting until principles are already in place and then suddenly throwing them out when the consequences go the wrong way is inconsistent with the concept of “principles” – and incidentally is a policy with reliably bad consequences. Now, are the potential consequences of secession so horrendous that in framing our principles we should abandon self-determination and allow prohibition of secession? If so, Mr. Ramsey owes us an argument for that remarkable conclusion, rather than simply an unsupported assertion that anyone who favours the right to secession must be indifferent to consequences.

Second: I also certainly don’t regard quantity as irrelevant either. On the contrary, I’ve endorsed Marilyn Frye’s birdcage argument in the comments section of this post. My observations above apply here as well, however.

But, perhaps most importantly, third: Mr. Ramsey’s invocation of consequences and quantity is a complete red herring. It has nothing to do with the issue at hand. My argument was that if a certain argument worked against permitting secession, it would also work against permitting emigration. Mr. Ramsey spins this into a contrast between single individuals and large groups. But what do numbers have to do with it? Mr. Ramsey seems to be assuming that emigration involves single individuals while secession involves large numbers. But where does this assumption come from? The would-be secessionist region might be a township of 50 souls, while the number of would-be emigrants might be in the millions. If Mr. Ramsey really thinks that the numbers matter so much here, then he is logically committed to forbidding emigration if the numbers get high enough. But I suspect that he would, to his credit, be reluctant to embrace such a blatant enslavement of his fellow citizens. Yet if so, then his opposition to prohibiting emigration turns out not to depend on consequences and/or quality after all. And so my original question remains: if prohibiting emigration is unacceptable, what is the difference between emigration and secession that supposedly makes prohibiting secession acceptable? For as we’ve seen, it can’t be the numbers.