Is the State Needed for Defensive Force?

To the Editor:

Donald Boudreaux, in “The ‘A’ Word” (July 2001), says “it’s possible that even the best feasible stateless society will be worse than a society with a well-structured government constitutionally limited to protecting its citizens from violence and theft. But let the case be made.” I wish to make that case. But first let me acknowledge his points that: “peace and order do not require state oversight of religious belief”; “sound money has been, and can be, issued by purely private firms”; “business people sharing no sovereign master developed law courts and procedures,” etc. Thus religious, social, economic, and many other arenas require no state intervention.

Why then do we need government at all? Let us note that government is (overwhelming) force, and ask why we need force? The answer is immediate—to defend against aggression, foreign and domestic. This is virtually a tautology. If it is possible to deal with a matter by suasion, then force should not be used. Conversely, if there is no defense other than force, we have to employ it. We may state as a guide: One has no right to initiate force, but an obligation to defend against it. Now there are anarchists who claim that state force is never needed. However “the best feasible stateless society” will soon fall prey to a foreign or domestic army. There are also those who accept in principle the need for self-defense, yet invariably in practice conclude that force is unnecessary, whether this applies to a war, terrorism, immigration problems, taxation, etc. My argument however, is not to dispute any given situation, but merely to establish the principle that when there is a threat to our liberty or to our nation, we are obligated to use the requisite force to contain it.

Nevertheless, there is a practical side to the argument for minimal force. It permits us to compete in the war of ideas, whereas denying the reality of aggression will lose our audience. They will then disregard the vast majority of cases where state force is immoral and counterproductive.

Mr. Boudreaux writes, “I hold open the possibility and the hope that a prosperous and peaceful society can flourish without the state.” This would require the development of culture, including the self-governance of individuals. These advances are not aided by liberating the tyrant and the barbarian, but by defense against all forms of aggression.

—ALLEN WEINGARTEN

Morristown, N.J.

Donald Boudreaux responds:

Allen Weingarten and I largely agree, although our one disagreement is fundamental. I fully agree with Mr. Weingarten’s claim that force is sometimes necessary. The world has bad people who can be corralled or punished only with force. I endorse using force against those who initiate it against innocent others.

But contrary to Mr. Weingarten’s presumption, a sovereign state is not necessary for the justifiable use of force. Imagine a stateless society—that is, a society in which no one has monopoly power to be final arbiter of the use of force within a particular geographic region. Each resident of that region might join one of any number of private protection agencies. Each agency promises to protect the lives and properties of its customers—with force, if necessary. Such an arrangement is one in which force is used against predators to protect innocent parties. But there is no state.

Now it might reasonably be argued that imperfections make this kind of arrangement less desirable than a constitutionally limited state. But the issue is precisely the desirability of private, nonsovereign protective associations versus a state. Both can use force legitimately. But is the state more likely than are private protective associations to use force illegitimately? More and more, I fear that the answer is yes.

Wall of Separation or Not?

To the Editor:

I generally agree with Barry Loberfeld’s article, “Freedom of Education: A Civil Liberty” (August 2001), but must correct one historical misunderstanding.

He construes the First Amendment (“Congress shall make no law respecting an establishment of religion, . . .”) to mean that “Religious liberty includes both the freedom and the non-establishment of religion.” No, that’s not what the First Amendment intended.

He cites Jefferson and Madison as opposing state-established religion. So they did, and I fully agree with them—but their view did not prevail. In the compromise that became the First Amendment, the federal government was forbidden to establish any religion, and was also forbidden to interfere with state establishments. That’s why it says “shall make no law respecting an establishment of religion” (emphasis added), rather than “no state shall have an established religion.” That is, this is a subject that Congress must not touch, either to establish or disestablish.

The proof is that when the First Amendment went into effect, several states still had established religions, and they were not instantly disestablished, nor did anyone suppose that they should be. For example, Connecticut did not disestablish the Congregational Church until about 1825. The state establishments were done away with one by one through actions of the individual states, not in response to the First Amendment.

The notion that the First Amendment commands separation of church and state did not come until modern times, when the Supreme Court held that the Fourteenth Amendment applied the Bill of Rights to state actions, not just to federal acts. That “incorporation” decision would have astonished the authors of the Fourteenth and horrified the Founders.

—GEORGE W. PRICE

Chicago

Barry Loberfeld replies:

The meaning of “no law respecting an establishment of religion, or prohibiting the free exercise thereof”—no government sanction of religion, no government ban on religion—is not in any way altered by the fact that it (originally) applied to only the federal government (“Congress shall make”) and not to the state governments. James Madison is the author of the First Amendment. It’s a little like saying Adam Smith’s “view did not prevail” in The Wealth of Nations.

“. . . I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.” Thomas Jefferson, not Earl Warren.

As it is often remarked, “incorporation” seems to be the only thing that the Fourteenth Amendment does accomplish. Nor would the concept have “horrified” Founder Madison, who attempted it with an amendment (which he considered the “most valuable”) whose language (“No state shall violate the equal rights of conscience. . . .”) almost echoes the Fourteenth’s.

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