American and European Federalism; Antique Republicanism and Contemporary Libertarianism

David Post has a very interesting and unexpected item at The Volokh Conspiracy, with the misleading title ‘The Dismal Failure of Union, Or How I Learned to Stop Worrying and Love the Articles of Confederation’.  Misleading, because to me the post looks like an explanation of why America moved from the loose union of states in the struggle against British rule, codified in the Articles of Confederation, to the strong form of union codified in the Constitution as it still exists, largely intact (on paper anyway).

The key passage for my purposes is right at the end

The European Union, too, legislates (primarily) “for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, as contradistinguished from the INDIVIDUALS of which they consist”; it has no power “to employ the arm of the ordinary magistrate to execute its own resolutions”; there is a “want of SANCTION to its laws”; it has no taxing authority for the purpose of raising its own revenue; on fundamental questions is gives each State equal suffrage; its judiciary power is crabbed and circumscribed; and it has “never had a ratification by the PEOPLE[, r]esting on no better foundation than the consent of the several legislatures.”

It made me think:  Perhaps the Europeans who are trying to envision what “Europe” should look like would take comfort from knowing that our first try at Union was a failure, too.  And that the Federalist should be better known, and more widely read, in Europe.  Europe needs its Publius, right about now:  A fresh start; a catalog of the flaws of the current system, and a plan for a new way forward, to be submitted to the people of Europe for them to accept or reject.

The implicit sympathy for the deepening of the European Union is quite a surprise for me, as The Volokh Conspiracy is an expression of a key part of the American libertarian scene which is legal scholars who are ‘originalist’ with regard to the Constitution.  That is they believe the Constitution should be interpreted with regard to the publicly accepted meaning of the time it was written, and the publicly accepted intentions of the framers.  In practice, this means the most small government oriented possible interpretation of the Constitution, and a belief that courts should be activist in striking down laws which do not conform to such an interpretation.  These people have common ground with small government conservatives, around the belief that the Constitutions envisaged a very limited federal government.  What is further tae from this is a belief that the Constitution should not be changed except with regard to reinforcing its original message, which is taken to be very small government, as noted, and very sovereigntist, that is no external restraints on American sovereignty are accepted, with results that include bans on judges taking into account laws in other liberal democracies.  Their views on Europe are usually in line with British Eurosceptics, that is they regard the European Union with great suspicion, if not an attitude of outright rejection.  So here is a hardcore originalist writing in the nearest thing to the official blog of the unified libertarian originalist lawyers suggesting the EU would do well to adopted a strong form of Union and should have thinkers and writers able to express this forcefully and eloquently in the public sphere.

With regard to Originalism, I should point out that the rising influence of conservative and libertarian originalists has produced a reaction in a growing number of left or progressive or liberal legal scholars working on their own verso,on go Originalism, which emphasises all the evidence in the Constitution, and surrounding it, that the framers/founders aimed for a very integrated federation, in which the federal government would pursue national  projects.

Another issue that comes up in Post’s time is that it came out of Summer teaching in Italy, where he started with material about ancient Rome and the failure of the state.  It’s  not quite clear what Post means by failure.  The failure of the Republic as it gave way to one man Emperor rule, or the fall of the Empire in the west.  The former I guess, probably referring to a decline in republicanism from the time of the defeat of Carthage.  The significance for Originalism and libertarianism is that antique republicanism was important for the founders of the American Republic, but that does not easily fit with libertarianism in all its forms. Antique Republicanism is based on the value of political participation, civic duty, and national mobilisation around the common interest.  Libertarianism tends to just say that the state should be as small as possible and that the political sphere should not be important.  That applies to Originalists and Non-Originalists (like Jason Brennan).  Some Originalist scholars have acknowledged that aspect, as i work by Dave Kopel on the origin of the second amendment to the Constitution, regarding private guns (A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed), noting that it partly originates in obligations to carry guns in communities where attacks by American Indians were a significant danger.  He is still arguing, rightly to my mind, that the second amendment was meant to permit individual ownership for the purposes of personal defence.  I would have more respect for Originalist, who tend to irritate me, if they could admit that the wording of the second amendment is very ambiguous, so that current popular opinion is the best reference point for interpreting it.  The idea of an inherent ambiguity and reference to majority opinion now is rather horrifying for most Originalists.

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