The Constitution, Laws, and Libertarians.

Part of the "Critiques of Libertarianism" site.

Last updated 12/20/08.

The same credulousness that makes some people apt to become libertarians makes them prone to many bizarre conspiracy theories. Libertarians frequently parrot bizarre pseudolegal formulas or selective histories to justify militias, common law courts, sovereign citizenship, admiralty law, fully informed juries, immunity from income tax, etc.

Most of these are urban legends originating with other groups. Some have been actually tested by believers (who subsequently lose the legal battles, civil and criminal, which they have entered into based on these beliefs.) What unites them all is a kind of magical thinking, that power lies in ritual incantations.

Libertarians also adopt many right-wing criticisms of modern court interpretations of the Constitution. This seems to play an important part in their demonization of government. See also the Gun Control index.


Who likes unwritten Constitutional rights? You'd be surprised!
A vast number of unenumerated, implied Constitutional rights which we all rely upon in daily life have been found by the courts. Those who cry for constitutional literalism can easily have their own ox gored. From The Liberal Constitutionalist via The Internet Archive.
Libertarianism, Property & Harm.
Chapter 2 of James Boyle's unpublished "Net Total: Law, Politics and Property in Cyberspace". Thoroughly dismantles three libertarian approaches to the problem of harms: [common] law, natural rights, and property.
Original Intent And The Constitution.
The beginning of a page on the problems with ideas of "Original Intent" of the founders, a conservative propaganda ploy much favored by libertarians. The first segment is taken from A Process of Denial: Bork and Post-Modern Conservatism by James Boyle.
Contra Social Contract Theory
Tim Starr has updated Lysander Spooner's rant against government. Mike Huben shows why Starr and Spooner haven't begun to address classical liberal arguments of Locke and Jefferson.
Get Uncle Sam off my back! and other misguided impulses.
Gary Kamiya's review of A Necessary Evil" by Garry Wills. Praises the debunking of many Revolutionary Era myths of the Founders and Constitution exploited by anti-governmentalists.
Debunking "The Story Of The Buck Act"
Roger M. Wilcox dismembers this paranoid conspiracy theory about how your Sovereign Citizenry has been secretly usurped. Yellow fringe on flags, 2 letter postal abbreviations, ZIP codes, Social Security numbers: they're all part of the conspiracy!
1st American Group -- Scams and Traps Page
Many nonsense legal arguments are parts of scams or promotions of products, and that is one of the major reasons these are propagated in the first place: somebody wants to make a buck by misinforming people. An excellent index.
Tax Protester FAQ
Dan Evans' outstanding set of responses to the amazingly lengthy and looney claims of tax protesters.
Militia - History And Law Faq
An excellent and comprehensive FAQ rebutting much of the misinformation about militias and the 2nd Amendment spread by the modern militia movement, libertarians, the NRA, and others. Part of the Militia Watchdog site.
Idiot Legal Arguments: A Casebook for Dealing with Extremist Legal Arguments
Bernard Sussman has compiled a huge collection of legal citations concerning the lunatic legal claims of militia-mythology that tax scofflaws, neo-anarchists (and sometimes libertarians) often repeat. You can get an idea of the claims, but this is fairly impenetrable for laymen. From the fabulous Militia Watchog site. While now at the ADL site, Bernard Sussman states that he is independent.
The Second Amendment
Second Amendment Articles
Parts of the Brady Center To Prevent Gun Violence site. These sections describe the history and court interpretations of the 2nd Amendment, contradicting NRA propaganda and a recent spate of "academic" law review publications. Essential reading.
Gun Crazy: Constitutional False Consciousness And Dereliction Of Dialogic Responsibility
Andrew Hertz's much-cited Boston University Law Review article rebutting the NRA and the so-called "Standard Model" proponents. Important academic reading.
The Real Titles of Nobility Amendment FAQ
Jol Silversmith's summary of the foolishness of "The Missing Thirteenth Amendment."
Federal Reserve Conspiracy Myths
A (middle) section of Edward Flaherty's skeptical home page, aimed at debunking many economics-related myths.
For Would-Be Travellers On The Noncompliant Federal Income Tax Protester Path
Law Professor James Maule sympathetically warns well-meaning believers in common tax protest arguments that they'll be found wrong in court.
Destroyed Arguments
Lowell Becraft, Jr., a lawyer and member of the "Freedom Movement", enumerates many tax, jurisdiction, and other legal issues which have been found invalid by the courts.
L. Neil Smith's Ahistorical Comparison Of Lincoln To Lenin
Brian Tubbs rebuts absurd libertarian assertions about the founders, constitutionality, and Lincoln's prosecution of the Civil War.
The Case Against Secession
Mackubin Thomas Owens (at the Claremont Institute) takes libertarians to task for their support of secessionism, which is largely based on the bad constitutional interpretation of Stephens and Calhoun.
White Man's Ghost Dance
Bob Black's hysterically funny debunking of libertarian "Constitutionalist" notions of common law.
Takings: Rhetoric, Not Substance
Professor F. Patrick Hubbard presents the big picture of takings, showing that the issues are not as presented by the takings ideologues.
Shot Full of Holes: Deconstructing John Ashcroft's Second Amendment
A Violence Policy Center legal and historical analysis of the systematic errors in AG John Ashcroft's policy statement.
NEW 3/07: Review of "The Militia And The Right To Bear Arms"
Daniel Smith lauds Uviller and Merkel's historical legal analysis of the 2nd Amendment, which thoroughly refutes Sanford Levinson and other individual rights claimants.
NEW 3/07: A New Paradigm for the Second Amendment
Saul Cornell criticizes much recent scholarship: "Second Amendment originalists have created something akin to an alternate history science-fiction fantasy[...]"
NEW 12/08: The Original Meaning Of The Judicial Power
Libertarians often criticize Marbury vs. Madison as an unconstitutional usurpation by the courts. Boston University law professor Randy E. Barnett makes a convincing originalist argument for it.

Print References

The links here are to, through their associates program, primarily because of the review information. Books without links are generally out of print, and can often be easily found at AddAll Used and Out Of Print Search. Good sites for bargain shopping for sometimes expensive new books are Online Bookstore Price Comparison and AddAll Book Search and Price Comparison. Both of those list applicable coupons. Another is

Dennis Henigan, Bruce Nicholson, David Hemenway "Guns and the Constitution"
Aletheia Press 1995. A book-length FAQ of refutations of the gun-ownership propaganda and mythology promulgated by the NRA and gleefully parroted by libertarians. Essential reading. The "Guns And The Judiciary" section is now available online.
Jack N. Rakove "Original Meanings: Politics and Ideas in the Making of the Constitution"
Pullitzer Prize winning background that helps to understand the fallacies in simplistic libertarian constitutional interpretations.
Gary Wills "A Necessary Evil: A History of American Distrust of Government"
(Simon & Schuster 1999) A strong refutation of historical revisionist interpretations of the Founders and Constitution as supporting antigovernment positions.

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Copyright 2007 by Mike Huben ( ).
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