Legal Commentary

I regret that I had little time for blogging this month. Before I go, I was intrigued by Rick Hills? post on why libertarians believe in federalism ? a question apparently inspired by the opposition of certain libertarian scholars to the individual mandate included in the recent passed health care bill. The questions are well put and Ilya Somin has capably responded. I could never hope to add to it because, in part, I am at best a faint hearted libertarian.

As a faint hearted libertarian, I want to weigh in on behalf of my kind.  Why do libertarians hold the positions that they do? The idea is that generous views of the role of government tread on the liberty of ?  someone.  But considering who that someone might be may help us begin to understand the problem.

Is the sum of the libertarian position encapsulated in the notion that any collective limitation on individual action ? at least if accomplished through legal coercion ? is something to be resisted? For some libertarians ? certainly for those who take the pledge of the Libertarian Party ? that is more or less the whole point. But I suspect that the array of positions that we might call libertarian have a broader provenance.

Rick asks whether a commitment to federalism will result in more, rather than less, individual liberty. This is an important question. He evaluates libertarian commitment to federalism in light of that question. Can federalism lead to the promotion of liberty through voting with the feet, shrinking and drowning, etc.? All important questions.

But there is, of course, another sense in that we may regard even legal coercion as more or less defensible based upon the level at which it is imposed. It may well turn out that individual liberty ?as well as the liberty of  smaller communities ? is promoted by the devolution of decision making. This is an idea informed by the Roman Catholic notion of subsidiarity, the Calvinist idea of sphere sovereignty and even Toquevillean associationalism (as John McGinnis has ably demonstrated).

These ideas might be further informed by a Hayekian suspicion of the capacity of increasingly larger and more centralized bodies to ever have the capacity to make good decisions about, to use what seems to be a contemporary question, decide on what health insurance policies should and should not cover.

Indeed, these notions of devolution might contradict the idea that there should be comprehensive nationalized ideas about what government at all levels should or should not be able to do.

The one thing that seems inconsistent with both views is the idea that, even if Congress cannot do whatever it wishes through the Commerce power, it can do whatever it wants through the power to tax.

In fact, it seems somewhat odd to see folks who normally rail against formalist legalisms buy into the notion that, if it brings dollars to the federal coffers, it is a permissible tax. This view, as I tried to express in my earlier post, means that there are no longer structural limits on Congressional powers.  This is hardly compelled by precedent and it is unclear what acceptable view of federal power it might possibly serve.