Her er Barnett’s abstract, med mine fremhævninger:
Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on “Libertarianism and the Law” in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right.
Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive.
In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property.
I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political “sovereigns” who are to leave each other in peace and not to interfere with each other’s domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals.
I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing “second best” or “middle way” alternative to having someone else’s “wrong” vision of social justice or of morality imposed upon them.
På denne blog holder vi som bekendt meget af at videreformidle Randy E. Barnett‘s skriverier m.v. om amerikanske statsretsspørgsmål. Ligeså med Reason, som har talt med ham for kamera under overskriften: “Losing Obamacare While Preserving the Constitution“:
Der er løbet meget vand under broen siden. Til trods for ikke-sejr-sejren i ACA-dommen, kan jeg ikke lade være med at tænke på hvad der mon ville være sket, hvis Clarence Thomas, som punditokraten i 2005 gættede på, var blevet retspræsident i stedet for Roberts… Særligt efter Thomas’ historisk korrekte, logisk stringente og (ikke at forglemme!) uimodsagte dissens i McDonald v. Chicago, hvori han holdt på, at 14. forfatningstillægs “Privileges or Immunities Clause” (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…) bør være en faktisk og aktiv del af forfatningen (igen):
I believe the original meaning of the Fourteenth Amendment offers a superior alternative [i forhold til retstilstanden efter Slaughter-House– og Cruikshank-dommene] and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.
For lige at fortsætte ud af min Clarence Thomas-tangent, er her en lille times samtale med selvsamme, for de (få?) interesserede:
I forlængelse af min kommentar ovenfor om forfatningens centrale men oversete 10. tillæg:
“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.”
–har min gamle ven gennem 23 år, Randy Barnett (professor i jura ved Boston University og næppe én, der kan ses som værende ude i et partipolitisk ærinde), argumenteret for, at sundhedsreformen meget vel kan være forfatningsstridig. I et indlæg i Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html) skriver han bl.a.:
“Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.”
I forlængelse af min kommentar (i kommentar-sektionen her) om, hvorvidt Obamas sundhedsreform i virkeligheden måske er forfatningsstridig, er det vigtigt at være opmærksom på USA-forfatningens centrale men oversete 10. tillæg:
“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.”
I den forbindelse har min gamle ven gennem snart 23 år, Randy Barnett (professor i forfatningsret ved Georgetown University og næppe én, der kan ses som værende ude i et “konservativt” eller partipolitisk ærinde), argumenteret for, at sundhedsreformen meget vel kan være forfatningsstridig. I et indlæg forleden i Washington Post skriver han bl.a.:
“Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance. But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds. If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
At der kommer en større sag ud af det, og at sidste ord ikke er sagt, er klart. Spørgsmålet er så blot–hvis Barnett m.fl. har ret–hvorvidt forbundshøjesteretten vil have mod nok til at erklære en så stor lov forfatningsstridig? Historien taler imod det, og det forudser Barnetts kollega og med-blogger, Orin Kerr, også. Efter min mening desværre.
Barnett er mere optimistisk:
“[Although some] of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.
Tre-fire måneder før nogen danske MSM opdagede, at der blandt de Republikanske præsidentkandidater var et vist kongresmedlem, Dr. Ron Paul, skrev vi om ham her på stedet. Nu er andre medier ved at følge efter, i takt med at den libertarianske “Dr. No”‘s position som den eneste Republikanske præsidentkandidat, der er–og hele tiden har været–imod Irak-krigen, er ved at manifestere sig. Paul har ganske vist ikke en jordisk chance for at vinde hverken nominering eller præsidentembede, men han er i det mindste et interessant indslag. New York Times havde f.eks. en stor og lang portrætartikel, “The Antiwar, Anti-Abortion, Anti-Drug-Enforcement- Administration, Anti-Medicare Candidacy of Dr. Ron Paul” i søndagsudgavens magasin. Heri hed det bl.a.:
“Paul represents a different Republican Party from the one that Iraq, deficits and corruption have soured the country on. In late June, despite a life of antitax agitation and churchgoing, he was excluded from a Republican forum sponsored by Iowa antitax and Christian groups. His school of Republicanism, which had its last serious national airing in the Goldwater campaign of 1964, stands for a certain idea of the Constitution the idea that much of the power asserted by modern presidents has been usurped from Congress, and that much of the power asserted by Congress has been usurped from the states. Though Paul acknowledges flaws in both the Constitution (it included slavery) and the Bill of Rights (it doesnt go far enough), he still thinks a comprehensive array of positions can be drawn from them: Against gun control. For the sovereignty of states. And against foreign-policy adventures. Paul was the Libertarian Partys presidential candidate in 1988. … In Congress, Paul is generally admired for his fidelity to principle and lack of ego. He is one of the easiest people in Congress to work with, because he bases his positions on the merits of issues, says Barney Frank, who has worked with Paul on efforts to ease the regulation of gambling and medical marijuana. He is independent but not ornery. Paul has made a habit of objecting to things that no one else objects to. In October 2001, he was one of three House Republicans to vote against the USA Patriot Act. He was the sole House member of either party to vote against the Financial Antiterrorism Act (final tally: 412-1). In 1999, he was the only naysayer in a 424-1 vote in favor of casting a medal to honor Rosa Parks. Nothing against Rosa Parks: Paul voted against similar medals for Ronald Reagan and Pope John Paul II. He routinely opposes resolutions that presume to advise foreign governments how to run their affairs: He has refused to condemn Robert Mugabes violence against Zimbabwean citizens (421-1), to call on Vietnam to release political prisoners (425-1) or to ask the League of Arab States to help stop the killing in Darfur (425-1).”
Ikke alle amerikanske libertarianere/liberalister er dog lige begejstrede for Ron Pauls kandidatur. En af de mest begavede akademikere, jeg nogensinde har kendt, er jura-professoren Randy E. Barnett, som i snart 30 år har været kendt som en af de mest velformulerede men også mest “hard core” liberalister i amerikansk samfundsdebat. Han havde i sidste uge et lidt overraskende frontalt angreb på Ron Pauls kandidatur, i en klumme, “Libertarians and the war”, i Wall Street Journal:
“While the number of Americans who self-identify as “libertarian” remains small, a substantial proportion agree with the core stances of limited constitutional government in both the economic and social spheres–what is sometimes called “economic conservatism” and “social liberalism.” But if they watched the Republican presidential debate on May 15, many Americans might resist the libertarian label, because they now identify it with strident opposition to the war in Iraq, and perhaps even to the war against Islamic jihadists.
During that debate, the riveting exchange between Rudy Giuliani and Ron Paul about whether American foreign policy provoked the 9/11 attack raised the visibility of both candidates. … The exchange also drew attention to Mr. Paul, who until then had been a rather marginal member of the 10-man Republican field. One striking feature of Mr. Paul’s debate performance was his insistence on connecting his answer to almost every question put to him–even friendly questions about taxes, spending and personal liberty–to the war.
This raised the question: Does being a libertarian commit one to a particular stance toward the Iraq war? The simple answer is “no.”
First and foremost, llibertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime. They hold that these rights define true “liberty” and provide the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.
When it comes to foreign policy, libertarians’ severe skepticism of government planning in the domestic arena carries over to the government’s ability to accomplish anything positive through foreign aid, whether economic or military–a skepticism they share with most Americans. All libertarians, I suspect, oppose military conscription on principle, considering it involuntary servitude. To a libertarian, any effort at “nation building” seems to be just another form of central planning which, however well-motivated, is fraught with unintended consequences and the danger of blowback. And, like most everyone, libertarians oppose any war of aggression. In all these regards, Mr. Paul is a mainstream libertarian.
But like all libertarians, even Mr. Paul believes in the fundamental, individual right of self-defense, which is why libertarians like him overwhelmingly support the right to keep and bear arms. And most also believe that when the territory of the U.S. is attacked militarily, the government–which claims a monopoly on providing for national defense and extracts billions of tax dollars for this purpose–is justified in using the military in self-defense. For this reason, many libertarians (though not all) who now oppose the war in Iraq supported U.S. military actions against the Taliban regime in Afghanistan, which had aided and harbored the al Qaeda network that organized the 9/11 attack.
But here is the rub. While all libertarians accept the principle of self-defense, and most accept the role of the U.S. government in defending U.S. territory, libertarian first principles of indiv
idual rights and the rule
of law tell us little about what constitutes appropriate and effective self-defense after an attack. Devising a military defense strategy is a matter of judgment or prudence about which reasonable libertarians may differ greatly.”
Herefter skifter Barnetts klumme til en stil, der bedst kan betegnes som “tredje-person flertal”, men som uden tvivl må læses som beskrivende hans eget synspunkt:
“[Some libertarians] supported the war in Iraq because they viewed it as part of a larger war of self-defense against Islamic jihadists who were organizationally independent of any government. They viewed radical Islamic fundamentalism as resulting in part from the corrupt dictatorial regimes that inhabit the Middle East, which have effectively repressed indigenous democratic reformers. Although opposed to nation building generally, these libertarians believed that a strategy of fomenting democratic regimes in the Middle East, as was done in Germany and Japan after World War II, might well be the best way to take the fight to the enemy rather than solely trying to ward off the next attack.
Moreover, the pro-war libertarians believed there was “legal” cause to take military action against Saddam’s regime–from its manifold violations of the ceasefire to firing on American planes legally patrolling the “no fly” zone and its persistent refusals to cooperate with weapons inspections. Saddam’s regime was left in power after its unprovoked invasion of Kuwait on these and other conditions that it repeatedly had violated, thereby legally justifying its removal by force if necessary. Better to be rid of Saddam and establish an ally in the war against Islamic jihadists in the heart of the Middle East, the argument goes, and then withdraw American troops.
Naturally, the libertarians who supported the war in Iraq are disappointed, though hardly shocked, that it was so badly executed. The Bush administration might be faulted, not so much for its initial errors which occur in any war against a determined foe who adjusts creatively to any preconceived central “plan,” but for its dogged refusal to alter its approach … when it became clear that its tactics were not working. …
These libertarians are still rooting for success in Iraq because it would make Americans more safe, while defeat would greatly undermine the fight against those who declared war on the U.S. They are concerned that Americans may get the misleading impression that all libertarians oppose the Iraq war–as Ron Paul does–and even that libertarianism itself dictates opposition to this war. It would be a shame if this misinterpretation inhibited a wider acceptance of the libertarian principles that would promote the general welfare of the American people.”