Monday, March 15, 2010

The Constitution?

I was thinking tonight about Ron Paul's candidacy for the Republican Nomination this last presidential election cycle. One thing that has stuck in my mind is the support afforded him by certain prominent racists, and the controversy that generated in the pro-freedom community. It's a strange phenomenon, one most people don't even question: that movement, and those individuals most single-mindedly devoted to that movement, are frequently associated with racism, slavery, and such. William Buckley, though otherwise committed to liberty and not personally a racist, opposed attempts to use federal power to compel the recognition of the rights of black people. Ron Paul, though not himself a racist by any means (he refers to racism as "a particularly ugly form of collectivism"), was publicly supported by certain prominent racists. The old Democratic Party, which stood stalwart against Federalist, Whig, and ultimately Republican attempts to expand federal power, was also the party of slavery and racism. What's the deal?

I think it can be traced back to the Constitution. The Constitution has a number of unfortunate features which has facilitated this seemingly schizophrenic divide in the liberty community. The main problem, the one I will address here, is the role it has come to play in the fight to preserve liberty in this country: Strict Constructionism, or "constitutionalism", is the legal philosophy most commonly supported by non-Anarchist libertarians and non-Neo conservatives. The idea is that the constitution granted the federal government only specific powers; anything beyond that is unlawful. This is a comforting philosophy for those of us who prefer a more limited government: theoretically, we have the law on our side.

The problem is that while the Constitution did not grant the authority to do things like create welfare programs, a central bank, roads and rails and other things, it also placed no limitation on the States, even in the matters addressed in the Bill of Rights. It wasn't until after the Civil War when it was declared that, because of the Fourteenth Amendment, the Bill of Rights could be applied to the States. It also gave the Federal Government no authority to compel the States to recognize the rights of all its citizens; Slavery, Jim Crow, and such were well protected under the Constitution.

In the drive the prevent the Federal Government from expanding its power, the proponents of Liberty have repeatedly found themselves on the wrong side of what I think can be called America's "Negro Question." When it became a question of the States continuing slavery or the Federal Government outlawing it, many liberals allied with the slavers to keep the Feds from overstepping their Constitutional authority. When it became a question of protecting State-granted White privilege, or allowing the Feds to compel states to recognize the rights of Blacks, many liberals, such as William Buckley (I refer not to the quasi-socialist progressives who assumed the name under the previous generation, but the genuine liberals who found both the Democratic and Republican parties an uneasy home), opposed this use of Federal power on the same grounds they opposed every use of Federal power.

This alliance has been consistent enough that, even today, the most unrepentant of racists still consider the libertarian movement, with men like Ron Paul, to be the best hope they have of being able to turn the page of history back to their own era. I do not believe this association is correct: while a commitment to freedom of association would allow employers to go back to (openly) declining people employment on account of their race, stores and restaurants to (openly) decline to allow certain kinds of people to enter their establishments, and so on... I sincerely doubt such establishments would today serve much more than a fringe pariah community. And racists would find no allies among libertarians at either the federal level OR the state house... aside from the fact that if they somehow managed to get a state government to attempt to differentiate the legal statuses of whites and others, they could count on libertarians to block attempts to oppose this from the Federal level... because of the Constitution.

I think we should set the record straight: The Constitution should no longer be allowed, in the pro-freedom community, to serve as an excuse for condoning assaults on the liberties of people different from ourselves. An assault on liberty is repugnant, whether it comes from the federal, state, local, or individual level. True law, in my opinion, is not words on a piece of paper written by the agents of The State, but rather the principles these words properly, but do not always, reflect. If "the law" says we must permit some of our fellow men to oppress some others of our fellow men, then, I believe, "the law" is not in accord with The Law, and is therefore wrong. This isn't to say we should abandon the Rule of Law completely, but rather that if we consistently find that some legal principle is is conflict with our moral principles, then it should be considered that this legal principle could be wrong.

The Civil War is a perfect example of this. Though I do not believe bloodshed was necessary on the scale it occurred, the fact remains that it was the South, at ever turn, who started the conflict. For the conflict began well before the fighting began... indeed, before the South attempted to secede from the Union. There were repeated, rather successful attempts to use Constitutional principle not only to preserve slavery in those states where it was practiced, but also to impose a "right" of slaveholding upon the peoples of both states and territories who had (or perhaps would at some future date) declared, via their state and territorial legislatures, slavery to be illegal.

The principle was this: The Constitution declared that people could not be deprived of their property except for certain public uses and without just compensation (eminent domain), and that states had to recognize the decisions of other states. Certain people were property, and property being protected, these people could not be freed except by their owner's consent anywhere on US soil, even if the area happened to be under the jurisdiction of a "free state". Indeed, the Dredd Scott decision brought the very notion of "free states" under question. And many so-called liberal Democrats solemnly nodded their heads and declared this reasoning to be sound.

Many of the most anarchist of libertarians like to point out the essentially illegal nature of Lincolns war to prevent the secession of the states that made up the Confederacy. But what of the South's initial encroachments on American liberty via the machinery of the State? Is it any more right, just because men in black robes declare it to be so? Since when does the Anarchist care about the pronouncements of the State, except in exposing hypocrisy? And why should we expend rhetoric in defense of such pronouncements, on behalf of men whose aim was the preservation of potentially the most illiberal of institutions? If we are to choose a side in a conflict with no clear moral victors... why choose the side of racists and slavers?