Friday, July 31, 2009

Federalism, Constitutionalism and the Libertarian Party

A discussion I had this morning reignited my thoughts on a topic I have been wanting to address publicly.

I have a great deal of respect for my Libertarian friends. I think they when it comes to the three parties' leadership, they are the only reform game in town. While both the Republicans and Democrats have reformers in their party, the two parties' leadership works overtime to keep the reform element out of power. Country club elitism dominates both parties' leadership.

As I sat there at Tuesday's nights council meeting, I was struck by the fact that which party had a majority in the council chambers did not matter. The real power lies in the elites sitting the audience, those "suits" who had shown up to back giving more taxpayer money to the Capital Improvement Board, yet another institution that seem impervious to the wishes of the public. It doesn't matter whether Republicans or Democrats control the council or the 25th Floor, people like Tamara Zahn, Susan Williams, Don Welsh, Bob Grand, Joe Loftus and the city's big law firms, always end up the winner. Taxpayers on the other hands always lose.

While Libertarians nobly resist the city's country club culture, where I differ is the tool often cited by Libertarians to oppose big government - the constitution. Actually "constitution" is not correct - it's multiple constitutions, namely the national constitution adopted by the Founding Fathers in Philadelphia in 1789, and the one ratified by the State of Indiana in 1851.

Libertarians are on solid ground when they accuse Congress of overstepping its power in violation of the U.S. Constitution. In the U.S. Constitution, our federal government (I prefer the term "national government" as "federal" technically includes national and state government) can only exercise powers expressly granted to it. For Congress to pass a law, it must be authorized by one of the powers in the Constitution, generally those enumerated powers found in Article I, Section 8. If it's not on the list, then Congress cannot act. Granted this rule of limited powers has been stretched beyond recognizable form and the Libertarians are correct to point that out.

States are different animals though, and that is where Libertarians often miss the boat. When the General Assembly passes a law, it does not have to be based on an express power in the Constitution. States have the authority to pass laws UNLESS there is a specific provision in the federal or state constitution denying them the authority to act.

Local governments on the other hand, are subdivisions of the state. Local government must have their authority given to them by the State. So if the State doesn't not grant power to a local government, in one form or another, it cannot act.

To summarize it works like this. If Congress passes a law, it is unconstitutional unless it fits within one of the powers given to the national government in the U.S. Constitution. If a state passes a law, it is constitutional unless there is something in the federal or state constitution prohibiting the state from passing the law. For local government to pass an ordinance, it must be based on authority received from the state.

Libertarians have a good argument when they say that the state or local government has no business being involved in running sports stadiums. But that is a policy argument, not a constitutional one. Libertarians need to realize that not every answer to every policy question can be found in the Constitution. Sometimes bad law is just just bad law and not unconstitutional.

3 comments:

Indy Student said...

Paul,
I have to respectively disagree. While you are right that much bad law is bad law, there is a specific line that I quoted at the meeting:

"No county shall...borrow money for the purpose of taking stock in any such company"

And since you and I both know that the $15 million for the Simons is still up, that specifically violates it because the city is borrowing money to cover the debt, including the Simons.

Also, I really don't see just arguing based on policy working. That's been done for years, and it hasn't worked. However, the government is supposed to uphold the State and US Constitution. That's an argument people might listen to. Otherwise, it's just another political theology giving an opinion.

Unigov said...

Paul, while I get your point, under your premise the state could outlaw all private industry. It could make state income taxes 100%.

It's hardly acting any less extreme in taking my money from me in order to build a gigantic football stadium that benefits one person, Jimmy Irsay.

I think your position is hobbled by Article 4, Section 16, "Each House shall have all powers, necessary for a branch of the Legislative department of a free and independent State."

This indicates to me (and very few others I'm sure) that the General Assembly has only the powers required to run the state at the most bare minimum, or other wise granted in the constitution (like education).

Not build football stadiums, or do 90% of the other tomfoolery this despotic body inflicts on us.

Sean Shepard said...

Paul,

You make a point that I often try to make to many of my libertarian friends. There are things that are not very libertarian that government, especially states and local governments, can do that might be "constitutional" and that there are, indeed, a Federal and a State document to be concerned about (Andy Horning was good at reminding us of this).

Ultimately, I always refer back to the purpose of "the Law". The Law is there to protect people's property, life and rights. When the law is used to take property from people and transfer it to others (either individually or in groups) it usurps those protections and therefore violates "Natural Law" regardless of whatever excuses might be contrived by men.

We also must remind people that our rights do not come from the government or from the Constitution . The Federal Bill of Rights for example merely lists SOME of the rights that we have as people, it does not grant them.

All levels of government have grown so large and so over run with people who do not know or understand these ideas that the very few that do are powerless to protect us from the others.

I appreciate your kind words regarding Libertarians. At the end of day, when we say 'small government', 'low or no taxes', 'constitutional', 'protection of people's rights' ... WE ACTUALLY MEAN IT.

Unfortunately, there isn't much power and money in NOT using government to promise power and money to others.