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Comment by poet | Hacker News Reader

Well, the 10th amendment lets any state mandate employment leave if it wants to right?

Absolutely they can, that is the beauty of America.

A lot of libertarians, interestingly, disagree on this point, though there's a split between the more pro-federalist and less federalist libertarians. Many of the less federalist ones, though, want to revive a stronger federal constitution that preempts state power, especially via reviving the substantive due process doctrine that Lochner used to find a federal "freedom of contract" that would override state labor laws (http://en.wikipedia.org/wiki/Lochner_v._New_York).

I believe it is not so much that some libertarians are pro-federalist while others are less federalist. It is that most libertarians recognize that if the federal government was operating within the bounds of the constitution (that is, legally) then states would have much more power relatively, and that this is a good thing. All libertarians also, though, recognize that individual rights do exist, as this is the basis of libertarianism.

The constitution doesn't create any rights, it only contains prohibitions on the trampling of various rights. The Preamble of the Bill of Rights makes this clear. According to the constitution, individual rights pre-exist the creation of the constitution, and the BoR is merely there to make doubly sure that the government knows it is not given license to violate them.

Libertarians (generally) hold the view that the states do not have such a license either, as being rights, there is no situation (other than consensual explicit agreement) whereby they can be legitimately violated.

So, Libertarians may disagree on whether the constitution is a good document or not, but generally agree that it would be a better government than we have now.

To quote Lysander Spooner: Either the constitution has authorized the government we have now, or it has failed to prevent it.

Like Lysander, I believe libertarians see the constitution as a failed document. I don't think there are Federalist libertarians-- in fact, calling someone a "hamiltonian" is an insult in some libertarian circles.

(None of this is to say that you're wrong, but that you presented me an opportunity to expound on this since many people seem to be confused by libertarian positions. At worst I think you and I may disagree on semantics.)

Yeah, I do think there are not many Hamiltonian libertarians. But there seems to be a subset that, at least as a matter of tactics, and perhaps even long-term strategy, sees federal constitutional rights being enforced against the states as a major way of advancing libertarian ideas, which cuts somewhat against a more conservative "states' rights" sort of view. And some are willing to do so even when as a matter of textualism or originalism it's a bit of a stretch. Hence folks like Randy Barnett and David Bernstein advocate a revival of Lochner to preempt state employment regulations, despite the fact that many other libertarians think that "substantive due process" is a huge federal power-grab.

I suppose some other areas are less controversial, e.g. even most pro-decentralization libertarians are perfectly happy for courts to rule that the Second Amendment preempts state and local firearms laws, or that the First Amendment throws out state blasphemy laws.

There might not be any Hamiltonian libertarians, but that doesn't necessarily mean that libertarians are all Jeffersonians either.

What would you call a someone who sees the balance between federal and state governments to be beneficial to liberty and political stability? (An 'Adamsian', perhaps?)

I would personally agree that the balance of power is currently far too tilted toward the federal government, but I wouldn't oppose the re-incorporation of substantive due process under the 14th amendment as with Lochner any more that I object to the applicability to the states of the first, second, fourth or fifth amendments via the 14th.

I don't recall the names of the specific cases that mark the change, but the fallout after the 14th Amendment resulted in some but not all of the Constitution's limitations on government being applied to the States as well.

So, for example, 1st Amendment restriction on censorship are applied to States. However, the States aren't bound to some guarantees like a right to jury trial in civil cases (iirc).

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