 Okay, hey, this is Stefan Kinsella, my podcast, Kinsella on Liberty, episode 260, I think it'll be. That's StefanKinsella.com slash KOL 260. And I usually just put on my podcast feed when I get interviewed by someone else or give a speech. That's my point. Every now and then I'll talk to someone. And I'm talking right now to Nick Sarwark, the chairman of the Libertarian Party. Hello, Nick. Hello, Stefan. And you're driving in your car somewhere right now, right? I am. I'm in beautiful Phoenix, Arizona, which is colder than normal. We've gotten some unseasonable weather, but we try not to complain too much, because soon enough it'll be like living on the surface of the sun. And are you ready for mayor there or something like that? Or do you do that a lot? Because I ran for mayor in the 2018 election and the way our municipal races work. It's kind of a jungle primary in the first round, and then the top two go into a runoff. And I did not make the runoff. So I'm done running for mayor for now. Gotcha. Well, you and I were talking yesterday. We met a few months ago in Houston in person, and I joined the Libertarian Party a few months ago. And so we were just kind of chatting on one of my provocative posts on Facebook about something. So we decided, let's just have a chat about this, because you're a lawyer too. I actually hadn't realized that, but when I heard you speaking in Houston, you kept saying some things that were extraordinarily sophisticated for a layman. And I thought, oh, this guy must be a lawyer, and yet you are. So you're a lawyer too, right? I am. I got my letter of mark from the Supreme Court of Colorado in 2008. Okay. Are you like me? You've gotten Libertarians who give you, they give you guff about having sworn an oath to the state bar and you're selling out and all that. Have you ever had that attack? I have had a little bit of that, and I was a deputy public defender for the state of Colorado for five years. So I've also gotten the, how can you work for the government line of attack? Right, even though you're defending people from being attacked by the government. Yeah, the way I look at it is I'm perfectly happy to dismantle the public defender's office as soon as we dismantle the DA's office. You know, but I'm not one for unilateral disarmament when it comes to criminal justice issues. Okay, so you're the chairman of the LP, is that correct? I am. Now, is that, that's not a full-time job because you obviously have another job too, I think, right? Yeah, it's a volunteer position. Oh, it is. It's not paying at all. I didn't realize that, okay. It is not. It, you know, there's some reimbursement for expenses that are associated with party business, but it's a labor of love. Well, how often, let me ask you this because I saw you in Houston and that's not a big, this is not, Houston is not the most important sort of city. So you must travel a good deal for libertarian party business. Yeah, it, over the last, it's been, gosh, five years now, being chair. I average probably about 12 to 14 trips a year to various things, state conventions, you know, going to state legislators and lobbying for bills or being deposed by the federal government. That was delightful. What was that about? We are suing the Federal Election Commission over some of their campaign finance restrictions. So the FEC says that if you die and leave money to the Libertarian National Committee in your will, which everyone should, that the National Committee cannot take from that estate more than the statutory annual maximum per year. Which is just an absurd regulation, even if you buy into campaign finance law and the need to avoid a corruption or the appearance of corruption. The idea that a dead person could somehow get a quid pro quo, you know, absent something we don't know about the afterlife doesn't seem like it makes sense. So they wanted to depose me as part of our challenge to their law. And we, I think that oral argument was in front of the DC circuit, maybe December. I want to say end of November, beginning of December. So hopefully we'll get an opinion on it soon. And hopefully they'll strike that down. Gotcha. Okay. And how long have you been LP chair? I was first elected at the National Convention in 2014 in Columbus, Ohio, and then reelected at the 2016 Convention in Orlando, and then re reelected at the 2018 Convention in New Orleans. So I'm okay. Now the first three term consecutive chair in Libertarian party history. Really, very nice. And how long just curious how long have you been into Libertarianism yourself as a young man? So I got involved. I my dad took me to Maricopa County meetings here in Phoenix when I was, you know, probably 1011 12 years old. And I read Bergman's Libertarianism in one lesson and it made sense to me even as a 12 year old. So I've always identified as a Libertarian. I'm actually coming up this weekend on my 20th year as a party member. Got it. February 24th, 1999. We need to come up with a prefix for Libertarians. If you identify as a Libertarian, so we need a prefix like G or instead of he or Ms. or Mr. maybe maybe maybe maybe Liz or David. Yeah, yeah, I've been accused of being a reptilian. So let's not go that that direction. But we'll work into it. I think. Yeah, go ahead. Don't go ahead. I just say just for people listening that are curious. Will you deny right now that you're a reptilian? I will deny that I'm a reptilian. I am. Yeah, but of course that's what you would say, right? Exactly. So did you practice law or did you practice law actually as a career or what's your legal sort of background? Yeah, so I practiced for five years as a deputy public defender in Colorado. I think I got up to about 36 trials to a jury. Everything from, you know, relatively low level misdemeanors up to a couple of first degree murder cases. And one argument in front of the Colorado Supreme Court in which unfortunately the justices got it wrong. As they are sometimes want to do. So I did that from 09 up through 2014. And then I moved back to Phoenix to take over the, you know, kind of succeed my father in the family business, which I had been avoiding to kind of go my own way and, you know, have some accomplishments and other fields. I was actually in computer science for 13 years before going to law school to got it. So let me ask you this, would you say that I guess you're very familiar then with all the different wings and types of libertarians because I've always been a libertarian small L. I've only been a libertarian party member recently, of course aware of the LP for a long time. But so I guess you're very aware of all the different factions and the different, you know, the menarchist versus the anarchist, the Austrian versus the others, the Paleo versus the others. And I assume you're familiar with all that. I am, I am painfully familiar with pretty much every stripe and variety of libertarian you can have. Right. And do you have a self-identified, are you, what kind of libertarian would you say you are consequentialist, solitarian, randian, pragmatic, libertarian, anarchist, menarchist, what? Usually I go with just libertarian. My personal beliefs tend towards anarchy. I like to think of it as kind of they, they go asymptotically towards anarchy but may never quite touch. Yeah. I don't, I don't go objectivist. No offense to the objectivists, although Rand did hate the libertarian party with a deep and abiding passion. Well, she hated libertarians, libertarians in general actually, right? She hated a lot of people. Rand had no, no lack of hatred. You know, one of the things that she hated the most was when people pointed out how much of her work was derivative because she was very convinced that she had original thoughts about everything. And she's sort of like the opposite of Newton. You know how Newton used to say that he only got to where he was by standing on the shoulders of giants. Rand would be the sort of person that would deny that giants existed. Yeah, except for Aristotle. She would say she stood on the shoulder of Aristotle maybe. Yeah. Yeah, pretty much the entire philosophical thing from Aristotle to Rand was an empty desert according to her. Yeah. It's sort of a little bit of a, it just reminded me that I have this little joke with my son who's 15 year old and you know how Trump, Trump with his wall, they, they've dropped the, the participle, the. So it's not like he's a favor of the wall. He's a favor of wall. They say, we're building wall. So now my, my, my joke with my son and I is like, Hey, what do you want for dessert? He'll just say wall. So I think for, for I ran Aristotle is like wall. It's like, who do you depend on Aristotle? Just one thing, you know, but, you know, a little tangent there. My mind's a little crazy. And so why would you say you're not a Randian? Is it because you didn't come in that way? You haven't read her? You don't like her? Are you or Ron Paulian or what? So I've read a lot of, of Rand. I've actually read, I want to say most everything. There's probably some esoterica that I haven't read, but I mean everything from Anthem through, you know, the fountain head and Atlas shrug. I actually did a philosophy paper on Atlas shrugged back in undergrad. So it's, I try it when I decide that I'm not going to be something. I try to come by it honestly, you know, by doing a deep dive into it and realizing that that doesn't work for me. And really it's Rand's view of interpersonal human relationships. That's kind of the breaking point for me. You know, the elevation of her personal aesthetic preferences vis-a-vis human relationships and her conceptualization of altruism, which is a little bit too sophisticated for me anyway. It just, it doesn't work for me. My experience is different from that. And I don't try and cue the beliefs that don't work in the real world, which is not to say I'm entirely consequentialist, but you know, I want to see how stuff works. It's kind of like to just jump a different tangent. People ask all the time, why doesn't the party do more to support ranked choice voting? Why aren't you guys trumpeting this as the one thing that is going to be the silver bullet that's going to make the libertarian party more viable? And we do support it and we have supported initiatives and given money for campaigns and things like that. But personally, I want to see a few elections held with ranked choice voting in places like Maine and see what empirically bears out as far as who wins and who loses. Because a lot of this stuff is still strictly theoretical. And you know, maybe it's my time as a, you know, doing litigation and dealing with people's lives. I like to see how things work in the real world, you know, kind of outside of the ivory tower. Right. I was just speaking at the New Hampshire Liberty Forum a couple of weeks ago, and there was a big booth by these guys who were voting the ranked choice voting. Maybe you can explain what that is. From what I can tell, it's basically a political analog of when you have corporate voting for board of directors, you know, the way you vote, that you can stack your votes a certain way. I mean, my cynical thought is that if it would work to make more libertarians be elected, then that's one reason the state political machine would not allow it to happen. So if it's accessible, it wouldn't work. Yeah, so it ranked choice... Yeah, and that's probably a little more cynical than I would go. But ranked choice voting, it's a voting system in which you get to send more of a signal than you send in our first pass-the-post system. Because the first pass-the-post, you have to pick one of the candidates and that's your vote. And that's it. So in ranked choice voting, you get to say, if there's four people running for mayor of Phoenix, for example, you can pick up to four in whatever order you like them. So you could put Sarwark first if you're a hardcore libertarian, but then you could decide that, you know, in absence of a libertarian, you would prefer a progressive Democrat. And so then you would put Kate Gallego next. And then, you know, in absence of a progressive Democrat, you'd take kind of a middle-of-the-road, law enforcement-backed, you know, kind of moderate Democrat, and then you put Valenzuela next. And then you'd be like, well, fallout spills, I'll go with the Republican, and you put Sanchez last. And then what happens is, because you provided that extra information on your ballot, if your first choice gets eliminated early, your vote then gets redistributed to your second choice. So what it allows you to do, the advantage of it as a voting method, is it allows you to vote for exactly what you want and specify what you want if you don't get your first choice. It's very similar to, I used to work for the Association of American Medical Colleges, and they do a national match between medical students and residencies. You know, the students rank the places they want to go in an ordered list, and then the schools rank the resident applicants in an ordered list, and then the computers do a lot of the matching to find an ideal equilibrium based on those data points that have been fed into it. So there's a lot of potential in ranked choice voting. The real question that isn't answered for me is what does that do to the kind of candidates that run and the kind of candidates that win in a system like that where second place means something more than it did before? Right, and to me, it's not obvious that this system has anything to do with liberty or libertarianism per se. It's just another voting mechanism, and the only reason we would care is if it tended to result in more liberty and libertarians being elected. But if it did, that's one reason that the state wouldn't allow it to exist. They're happy to allow us to do things that don't cost them anything. Free speech, you know, protests don't cost them much, so they let us do it, and it makes us think that we have a safe vote. They let us vote, et cetera. I mean, I don't know. It doesn't sound like you have strong... You sound cynical. Yeah, I'm anti-state, but I don't see that... I'm skeptical of political methods to achieve liberty, but as I said, I just joined the LP last year. I think... I'll be honest, you know, I've always been skeptical of politics as the means of changing or achieving liberty, and I still am, but I decided to join because I figured, you know what, these are my people. These are also libertarians. They're trying their way. They're trying to change the LP, but... Well, I mean, you probably saved money in your life, right? I assume that you don't take your entire retirement portfolio and put it into one stock from one company. That's an assumption. You could be, you know, one of those people that does that, but most people believe in diversifying in order to avoid catastrophic risk. That's what... When people say, well, I don't want to vote for, you know, less than a perfect person or somebody I don't agree with 100% or I don't think voting counts or it helps or whatever, the way I look at it is it's the same as having, you know, a small amount of real estate for precious metals in your portfolio. You don't sink everything into it. You don't think that it's going to be the thing that makes you filthy rich, but it's a nice hedge and, you know, oftentimes it's counter-cyclical. So I look at political participation as a thing that is worth doing and worth doing as best we can to try and get maximal votes and get as much as we can get through the political process, but it's not everything. You know, it's not the be all end all. And I think that that's a healthy balance. You know, it's the same as... A lot of people are skeptical of the courts and whether or not the courts can be beneficial, but I think that the work that the Institute for Justice does is still good even though they often get, you know, beaten pretty badly on rational basis review because it's a fundamentally rigged system. Even if you know the game is rigged, sometimes you play anyway just because, you know, there's honor in the struggle. You see, you're pretty good at sounding reasonable without sounding like a fanatic, so that's impressive, a good balance to achieve. That leads to what you and I were kind of squabbling about on Facebook with this Supreme Court case that just was handed down a couple of days ago. Was it TEMP or TEMP for something like that? It's Indiana versus TIMS, T-I-M-B-S. Yeah. Mr. TEMS was caught with some heroin, which in Indiana and federally is not okay with our government, even though it's totally okay with me. And as part of his plea deal, he pled guilty to something, I want to say he got probation sentence as one often does with a first-time drug offense, but they took his land rover to court under a civil asset forfeiture proceeding and proceeded to seize it. Now, this is a $42,000 land rover that he had bought with a life insurance settlement from his, I think his father passed away in an untimely manner. The maximum fine for heroin distribution or whatever level of offense that he had in Indiana was $10,000. So his lawyers said, look, you can't take a $42,000 car for something that has a maximum penalty of 10 grand that's excessively punitive and it violates the Eighth Amendment prohibition against excessive fines. And one of the lower-level courts agreed with that, and then the Indiana Supreme Court said, no, uh-uh, because the Eighth Amendment's never been incorporated against the state, so we can totally take a land rover for this or anything else. And I believe the Solicitor General for Indiana during oral argument was asked by one of the justices, you know, if there's a law against speeding and somebody goes five miles an hour over and you arrest them for it, can you seize the vehicle? And he's like, yes, but we wouldn't. Which is not a good answer at oral argument. That's how you get a nine-to-nothing unanimous decision written by Ruth Bader Ginsburg establishing that there's a fundamental right to be incorporated through the 14th Amendment. Due process clause was her preferred method that even a state government can't violate. And I think, you know, it's... I don't want to say it's that big of a case because it just prevents excessive forfeiture, but it doesn't really upend the structure of legalized highway robbery that is the civil asset forfeiture system, but it's like how do you eat an elephant, right? One bite at a time. And I would agree that, look, take income tax. I don't know about you, but I want zero income tax, but if I can reduce it by 3%, that's a win. It's not a perfect win, but it's a movement in the right direction. And I would agree that this, in slightly limiting the power of state governments, maybe not the federal government, but the state governments, slightly limiting their power to impose outrageous fines of the civil asset forfeiture type for statutory crimes. It's probably a slight win. It's not a big win. It's sort of like the first step back. And as a libertarian, I'm all in favor of taking a slight... First step back to get out. Yeah, I'm all in favor of a slight win. It's just that, number one, as a libertarian and as an anarchist, well, first of all, even as a regular libertarian, we're against drug law in the first place. So possession of heroin shouldn't be a crime in the first place. And so there's no victim. There's no actual damages. So the question of an excessive fine is, to us, it's irrelevant. There should be no fines in the first place. Right. And so, but fine, so that they limited it a little bit. But my big issue, and the one I think we disagreed on, is this issue of libertarian centralism or this idea that you mentioned earlier, selective incorporation. And just for people who are not familiar with this, let me just lay it out. And if you disagree, you can tell me. But basically, the 13 states form the federal government. I assume you agree with that, although some of the Jaffa types, and some of the Tim of the Sanderfer and Cato types don't agree with that. They think the federal government was like the original American government formed by the will of the people, even though it was ratified with only 11 states out of 13. And the final two didn't need to have ratified it. But the whole concept of a national government is irrational, I believe. I guess we have an enumerated powers government, which is unique in the world. It doesn't have general legislative power. It doesn't have the power to violate free speech rights or even to legislate on the issue of drugs. Right, there's no federal police power. At least by the letter of the Constitution, there's no federal police power. But the founders were afraid that they would get out of hand, put these Bill of Rights in as an extra limit on what they could do. So they said, just to be clear, Congress cannot pass a law limiting freedom of speech. Congress cannot regulate the rights of our arms. So these were like extra limitations on what the federal government could do, because the federal government had limited powers. But then after slavery, after the 14th Amendment, that was enacted to basically try to get the southern states in line and to try to remedy the aftermath of slavery and to abolish slavery. The 13th Amendment ended slavery. The 15th Amendment gave black men the right to vote. The 14th Amendment had these three clauses in it, one of which is the due process clause, another is the privileges and immunities clause, and the other is the equal protection clause, which basically said you can't treat people differently based upon their race, right? Right. We all agree with that. Similarly, situated people have to be treated the same. Race, sex, you know, there's applications. You know, I love the 14th Amendment. I just, you know, to kind of put my cards on the table, I think there's an incredible power in the principles of equal protection that were not fleshed out enough in the original draft of the Constitution, if you will. And it settles some debates, well, settles their debates. For example, marriage equality. You know, there are libertarians who would posit that the government shouldn't be involved in people's interpersonal relationships, period. There shouldn't be any government marriage. And so the real, quote, real libertarian position is get government out of marriage, which is technically correct, which if you're a Futurama fan is the best kind of correct, but what it fails to deal with is the reality of the world in which we live, which is as long as government's giving out licenses for people to marry, it should treat people equally before the law. This idea of equal protection is that everybody is treated equally before the law. That's what the rule of law means. And so if you're going to be handing out marriage licenses or you take the transgender ban on people serving in the military, if you're going to let people sign up to go shoot people overseas for our government, you shouldn't restrict that to certain classes of people. Whether or not it's a good idea to go sign up to do that, that's a personal judgment question, but you shouldn't block that way in a discriminatory fashion. So anyway, sorry, got on my 14th amendment book box. Well, no, and that's what we're going to talk about. And I appreciate your motivations, and I actually agree with a lot of what you said. I totally disagree with you on the military issue. On the marriage issue, I actually agree with you, but for maybe a slightly different set of reasons. On the military issue, that's not a civil right. Military people are not doing good by and large. You don't have a right to a job in the military. And the military has special functions and requirements, and the whole thing seems like a mess to import transgender and marriage equality and gay issues into that. I don't see how that has anything to do with liberty. As for the marriage issue though, in a way, this is like the immigration issue. You could say that in a perfect world we can have free immigration, but given that we have welfare and public property and anti-discrimination laws, you just can't have open borders and welfare. You've got to choose one or the other. So some libertarians argue that way. I'm not saying I agree with one or the other. But for marriage equality, what you're saying is the way I would look at it is if the government is going to monopolize the field of contract enforcement, then they have to enforce contracts that people settle on. I would just look at the matrimonial regime as we call it in civil law property and the continental law. The matrimonial regime is a contractual incident of a personal relationship. It's really none of the government's business what people call their relationship. If you call it marriage, a partnership, it's really not up to the government. But they need to recognize the contractual aspects of it. If the government itself says that we will only recognize these legal aspects, if we call it a marriage, well then they have to call it a marriage because they're the ones that are insisted on this. If the government had early on said you can call it a marriage or a domestic partnership and we'll recognize that we don't care what you do privately, then there would have been no, it would have deflated the balloon of the gay rights movement because they would have nothing to complain about as long as their domestic partnerships are being recognized on the same level legally. So I would just favor of the Lawrence Results, by the way. Right, well this is where it gets to, and this is kind of the difference between the theoretical and the real politic or the man in the arena kind of stuff because what you're getting into is kind of game theory and negotiation where you had in this country prior to Obergefell, you had different levels of privileges available to people who were in certain kinds of relationships that were privileged by the state. So if you were in a relationship that is called a marriage between a man and a woman, you get favorable tax treatment, you got to visit your loved one in the hospital without having to go through a bunch of forms, you didn't have to develop other contracts, you were in a legally predictable situation because you had a large body of case law about what was and wasn't allowed in marriage. And what happened was the people who were privileged under that system didn't want to extend those privileges to people of the same sex. And so they started their negotiating position with you can't have this period. Then they sort of, some of them backed off and went to the whole, like you can have a civil union but you can't call it marriage, very similar to race relations in the whole let's do separate but equal for a while. And it wasn't good enough. And then they lost in court. And when they had sort of gone too far and lost, that's when you got a lot of people kind of sour grapes. The government shouldn't be involved in marriage at all and we should just get government out of all marriage relationships in the same way that post Brown v. Board, you had Southern states that were trying to dismantle their entire public education systems rather than integrate. You know, it's like we've lost. So now we're going to take our ball and go home. Correct. And I think that's right. Yeah. And these are good lessons for us to learn from in how we deal with each other, how we negotiate these issues, how we do political compromise that if you try, you know, it's like the whole thing that they say about Wall Street. Bears get fat and bulls get fat, but hogs get slaughtered. Yeah. If you try and take too much, you will lose. Right. And I think I agree with you on everything you said here. And you could argue that the Equal Protection Clause of the 14th Amendment doesn't... I actually have arguments that it doesn't apply to the states for two reasons. Number one, the 14th Amendment was... Well, it's un-libertarian, and it's unjustified, and it was never ratified properly because the final state that ratified it was coerced and they withdrew their ratification consent and the Congress ignored it. So you could argue, technically, legally, the 14th Amendment was never ratified, but you could argue that about a couple of other amendments, too. And at a certain point, laws become defective to the law. So I actually think the 14th Amendment was not constitutionally ratified, so it's actually not the law of the land. Right. And even then, I think it does an outlaw succession, which is the ultimate out. So a state that doesn't agree with the decision of the Supreme Court saying they have to do X, Y, and Z, they can just leave. But everyone says the Supreme Court settled that. But... Well, that's where I like to draw these distinctions because I've had these arguments that if you spend enough time in libertarian circles, you end up talking to some citizen people and tax protectors about how the 16th Amendment doesn't apply. And I try and stay out of those debates by accepting that, hey, maybe you're right on some sort of hyper-technical or historical accuracy point that there's some law in the drafting or Texas really never came back into the union or whatever. But I'm going to live my life based on what does this mean to me? And if I don't pay my federal income tax, they're going to lean on my property and they're going to take it. So the philosophical arguments are interesting but only to a point. And that's kind of, philosophically, I do believe in the right of succession as the very same kind of self-determination that led to the founding of the country in the first place in the Declaration. However, comma, practically speaking, that is settled. We had a war, a lot of people died, and I think the right side won. Other people disagree with me on that. But it is what it is, and we are where we're at. Well, so I would... In a lot of ways, I would agree with that. I think we should have a pragmatic view. We should recognize the law for what it is, not for what we want it to be and distinguish between them. I wouldn't equate the arguments of the sovereign citizen people and the common law court nut types. I wouldn't equate that. And the income tax processors, by the way, they're all basically crazy. I wouldn't equate them to the people that have a sound legal argument for the way the 14th Amendment ought to be interpreted. And I'll tell you why, because, as I said, I would agree that the Equal Protection Clause seems to be a pretty broad application to the states, and you could use that to argue for the marriage, for the gay marriage case. Although, honestly, if you just think back and you say, do you think that the framers and the public at the time of the 14th Amendment, 1867, or whenever it was ratified, would they have agreed that this Equal Protection Language meant that homosexuals could be married in states? I think that that could be... Absolutely they wouldn't. It doesn't fall under original public meaning. No, so it doesn't fall there. That argument, as I say, it's about three-fifths correct. Our little constitutional scholars will catch that reference. So you could argue the Equal Protection Clause did justify the gay marriage case, but the other, the substantive rights, like in the recent Civil Asset Fourth Survey, when you say that the First Amendment, the Second Amendment, the Third Amendment, and the Eighth Amendment apply to the states, what you're saying is that there are substantive rights that are incorporated by the 14th Amendment and applied to the states. And according to the traditional interpretation, what happened was in the late 1800s, the Slaughterhouse cases, a challenge of New Orleans Slaughterhouse Monopoly thing, and the Supreme Court said that's not part of privileges and immunities, and so they struck it down. They refused to strike it down. And later on, of course, the government got more power and the central government got more powerful, and they started using the Due Process Clause of the Fifth and Fourteenth Amendment instead. So what they said was the Due Process Clause, which is presumptively procedural, has substantive rights as well, and they incorporate the Fundamental Rights in the Bill of Rights, something like that. And over time, they selectively incorporated some of them. And today, or this week, they incorporated yet another one. They've done like 90% of the Bill of Rights, and there's a couple little things left, like trial by jury for civil cases, and things like that, which has not yet been incorporated against the state. And finally... Third Amendment. Yeah, so finally, they've done the eighth, the excessive fines part. That's what this recent case was, right? Right, and the thing is, again, this comes back to the kind of real politics of going too far. My poodles are crazy. All right, they're done now. No problem. So it's the whole real politic of going too far. So you had a post-reconstruction Supreme Court in the Slaughterhouse cases that said, yeah, you know, when we passed this Fourteenth Amendment, it was supposed to make it so that the Southern states could not continue to oppress African-Americans in the way that they did prior to losing the Civil War. But it doesn't really mean what it says, and the privileges and immunities don't really mean anything. I mean, if you read Slaughterhouse, they're basically eviscerated that clause. I agree with you. That's what they did. I agree with you. And what happens when you do that is that's how you end up with the due process clause getting elevated, because you're going to pick up another piece of the amendment that was initiated and use it. And it's funny because there are things that are different about the clauses. You know, one of the things that struck me about the Tim's case is you have Gorsuch and I cannot remember the other one. Oh, it was Thomas. Thomas and Gorsuch. Which other justice? Thomas and Gorsuch. Gorsuch and Thomas wanted to use privileges and immunities. Yes. I don't like privileges and immunities because privileges and immunities references citizens. Yes. Whereas due process references persons. And much like the whole immigration debate, I come to my libertarianism from a basic individualist belief in the goodness or the dignity of all human beings regardless of where they are from, where they live, what side of the border they were born on. I believe in individual rights full stop. Yes. So when we use constitutional provisions that elevate citizens of the country over persons who are here in the country? Yes. So you're saying you're not an American, you're a libertarian first. You're basically a libertarian first, not an American. Correct. I believe that fundamentally libertarianism is, if not anti-nationalist, at least or orthogonal to nation state. Yes, it's humanist. Yes, it's universal. I agree. I totally agree. And that's why due process is better than privileges and immunities. I do too, but the process is a process. I mean, the word process means it's a procedure. And what they try to do is they try to incorporate substance into process. And like Thomas and Kathy, he's one of the greatest constitutional scholars that I admire. He argues that actually makes sense, but honestly in the end I think it doesn't. Process means giving someone a process, a fair trial, a public hearing, make sure there's no retroactive laws. Make sure the laws are publicized as they know they're violating. But basically it just means as long as the government does it by the right procedure, they can still kill you. And it conscripts you and take your property and put you in jail. Right. Well, it's like the argument over the death penalty versus life without parole. You know, I'm a death penalty abolitionist. However, I understand that if somebody gets thrown, if somebody gets condemned to execution, there are going to be lots of people who are going to look for potential ways to exonerate and places where the evidence might not have been right because, you know, death, quote, death is different. I believe it comes from the Supreme Court. But life without parole ain't that great. And what you do when you get an LWOP sentence, very few people look into those kind of exonerations because they figure, you know, at least we're not killing this guy. And so you get to these places where, you know, when you eviscerate privileges and immunities, you kind of, if our goal is to protect individual liberty and you've taken away a tool that you think legally makes more sense, you know, privileges and immunities makes more sense as a tool. If you take that tool away, it's like, you take my screwdriver and I have to unscrew something, I'll use a butter knife. It's probably not good for the butter knife. I'll probably slip a couple of times. But it's got to get unscrewed. It's the same thing when the southern states decided that they wanted to, even though they lost, they still wanted to take those rights away. That's where you get the 14th Amendment. That's where you get all those clauses because the state government had subplenary police power. Subject to the restrictions of the 10th, which is not that strong or the 9th, which, again, has not been used to the fullest potential. Well, the 10th of the 9th don't restrict the states. They restrict the federal government, but that's a different issue. Yeah, but when the states go too far a field in their violations of individual liberties, that's where you get the 14th Amendment from. That's where you get incorporation. It's you had a tool, you abused it, you don't get to use the tool anymore. And I'm okay with that. Yeah, I'm okay with it as a libertarian because in the end, I'm results-oriented too. I'm consequentialist in a sense. But you could say this, I mean, if the United States invades Iraq to change or even Iran right now to get rid of their laws against homosexuality, you could say that that's a good thing libertarily, but the means used to do it are completely dangerous to liberty too, right? But there's a big difference between an armed invasion and a constitutional amendment that was passed under the rubric that we have. Regardless of the ratification question. Well, hold on a second, but the 14th Amendment was passed after an armed invasion, so that was also an armed invasion, the Civil War. So you can't just say it's like this. I agree there's some differences. Armed invasion, illegal secession, tomato-tomato, right? Well, I don't think the secession was illegal. All the law caused that. Well, I don't think the southern states were any more libertarian or better than the north. In fact, they were worse in probably most ways. But they did have a right to secede under the Constitution just like they would have under the Articles of Confederation. In other words, there was just simply no there was no power granted to this federal government to stop it, which is why it's implicitly illegal. Well, yeah, and that's probably going to be way more than we're going to be able to resolve today. But the question of whether or not an institution or a government has the right to maintain its existence. Look, I'm just saying, I'm just saying... This is like basic Marbury stuff. Wait, are you saying that the federal government has... Silence. I'm sorry, I think we got... Are you saying the federal government has a right to maintain its existence, or you think that's part of their argument you could use? There's a solid indication to develop the Constitution. You've created a government from whole cloth, right? And so the government, such as it was, that there is an implication that maintain that institution is implied as a power. Yes, and I think that was a... I would call that a danger, right? And that's one reason I am opposed to the Constitution, personally, as a libertarian in the first place, because they didn't have known that was going to happen, right? Well, yeah. I mean, that's a basic human institution. I mean, that's the reason that we still have NATO, even though we don't have a Soviet block, is institutions maintain themselves. We probably still have the World Electrification Administration, or... Well, we just got rid of the Spanish-American war telephone tax, what, like three years ago? Well, and Germany just paid off the World War I debts in 2010. I mean, these... Right. There are inertia is a big thing in government. Which is one reason we should be loathe to create a new government, like the federal government, which the Constitution did. So I think the Constitution is completely unlibertarian. And when libertarians pass out the pocket Constitution, as if it's a libertarian pamphlet, I want to cringe. I want to, like, I want to bite my ankle. Well, and that is... I mean, that's a place where I've gotten into arguments with more of your either constitutional conservatives or some of the paleos, you know, that have real good feelings for this idea of states' rights. And they're like, well, don't you support the Constitution? Don't you support the 10th Amendment? And my answer is yes, when it's beneficial to individual liberty. Yes. And no, when it's not beneficial to individual liberty. Yes. And as a libertarian... The tool that you use is orthogonal to the goal that you have. And as a libertarian, I agree. In fact, I wrote something 20 years ago, and I basically view the Constitution as instrumental. Like, we have to look at it like, if it's favorable towards liberty, okay, if not, not. But I do think there's a role for honesty in sound legal reasoning. So I think that we should not pretend like the due process clause or the privileges and immunities clause was supposed to implement some libertarian revolution. Look, if you as an advocate in court can push this argument for your client, go for it. But let's not pretend among ourselves that it really was meant to be libertarian. So I'm actually kind of intrigued that you... I thought you would be arguing like the Cato, Roger Pallon, Randy Barnett, these guys. I thought you'd be arguing that we should do what Thomas and Gorsuch argued and abandon the due process clause in favor of the P&I clause. No, I'm more persuaded by Sandifer if you come down to it and his arguments that the due process clause really is supposed to do stuff like that. But you do have a point. These constitutional provisions at the time that they're drafted at the time that they're ratified, the intent of the provision was to do the thing that they were trying to do. So you're immediately post civil war. The intent of the provision is to not let the southern states continue to treat African-Americans like slaves in all but name. That's the goal. The goal is like, don't get them lynched. Let them testify. Well, actually, if you read some of those debates, they were like, well, it doesn't even say that you let them vote necessarily. Well, that's why there was a very limited amount. Right. There is a limited amount of what they were intending to do. But the beauty of language is that you can then use that tool to do other things to a point. You stretch it as much as you can in the same way that free speech doesn't just cover a Gutenberg press. It covers the internet now. The freedom of the press covers bloggers, even though they don't work for an official news organization. I think that we should stretch the Constitution to the maximum liberty maximizing point that it will bear. But recognize that the best thing you can say about the Constitution Churchill said about democracy is it's a terrible system except for all the other ones. Our constitutional republic has some very, there are some flaws in the Constitution. There are some flaws in the application and checks and balances don't work as well as we would like them to work. But I would, Constitution, our limitations on governance are much stronger than, say, the Magna Carta limits the government of the United Kingdom. We have teeth in ours. They're sharp and small teeth, and they let a lot of things slip through. I know what you mean. Well, let me ask you this though. Santa First view is the Jaffa view. That's why I mentioned Jaffa earlier. That's the view that the American nation is basically a sovereign. They view the U.S. government as a government of plenary powers, however they have to manipulate it or manage this through the police clause or whatever, and that it was voted for by the mass of people in the U.S., not the states. I think that's totally ahistorical. I agree with Kirkpatrick and with Berger on this. I think that we had 13 states. In fact, we only had 11 states that ratified the original Constitution, right? So there was only 11 states when the Constitution became a force. There weren't 13. Well, the nature of representation in the colonial era was, I mean, the franchise was far less spread. Yes. You still had a lot of good old boy stuff. So the idea that that was a popular consent of the governed, it's a bit of a stretch. I mean, they didn't yell about it. Social contract theory of any stripe, whether it's this or the broader social contract theory, it's always a stretch, right? It's never really a contract. It's a shorthand for us to talk about things. It's the same way, one of my frustrations in Libertarian Land is you talk to anarcho-capitalists and they're convinced that private property is some sort of first principles thing, which is also a historical. It does not recognize that this arbitrary bundle of rights that we call property, whether it's real or chattel, developed over a long history of time, and it is arbitrary. If you just look at European inheritance law and its evolution over time, what you can and can't do with your property, alienability, things like that, these are legal structures that are created to privilege certain kinds of ownership over other kinds of ownership, and there are choices that are made in the system, and all systems are going to benefit some people more than others. And I think acknowledging that makes us better able to deal with suggestions that we move into different property regimes. For example, you know, that the current fat is towards moving towards socialism. It's easier to advocate against socialism if you acknowledge that our current system of private property, disintermediated and liability-controlled corporate structures and things like that, the system picks winners and losers. And if you don't acknowledge that the system picks winners and losers, then you aren't able to make a good defense for why this system is better than the other system. If you're trying to start from, you know, this system is just what springs at an issue from the state of man. Like, making arguments like that makes you look dumb, in my opinion. Well, you're very eloquent. I think we agree on far more than some people would think. Let me give you a quick... I kept you longer than we talked about. Let me give you a quick lightning round of questions, okay? Sure. Okay, number one, should the Supreme Court overturn Roe vs. Wade, yes or no? In your opinion? Probably not. Okay, give me more. You won. Yeah, give me more. Why? It was a poorly written opinion as a lawyer, but there is a significant amount of what would now be detrimental reliance on that structure. Yeah, it's too ingrained. And the other thing is the right of privacy is kind of like the Equal Protection Clause. Like, you can do a lot of good libertarian stuff with that, so it's not a tool I would like to give up. But would you kind of agree as a common sense, decent normal person that aborting a eight-month-old fetus is a little bit morally disturbing? Yes, oh, so we're going to have to do this another time if you want to talk about abortion, because it gets deep. Yeah, it's not something I would do. You know, some of these things are kind of like, it's kind of like the war on drugs, is you can agree that drug abuse is a problem, but the regime that would be necessary to prohibit it is worse than the problem. No, and that's basically my opinion. And that's kind of where I come down on abortion. Yeah, that's my view too, but don't you agree that late-term abortion is a cancer murder in some cases? It can be, it can be. And you know, the question is how much surveillance and how much law enforcement do you want involved between a person and their doctor to catch those rare outlier cases that might cross that line? Well, I'm an anarchist, so my solution is to put the jurisdiction on the family. So it's just the jurisdiction is in the family. I view it as an anarchist. It has its own problems. Yeah, it's a way of punting, but it's my elegant solution. Yeah, you're punting down to a small group. Okay, so what would you think about the Supreme Court striking down drug laws with some cobbles-together argument based upon the 14th Amendment? Privacy rights, privileged immunities, due process, I don't know. What would you think about just saying that all drug laws are unconstitutional? And by the way, I think the best argument would be the 10th Amendment, but that's just my crazy view. But what do you think? Well, the best argument with the historical precedent of prohibition in Article 2, Section 8 is that it's just outside of the police power that was granted under our limited power. That's the best argument. You want to talk about clean legal hit. The problem is you have case law that upheld the original... I can't remember the act, but basically they upheld the drug laws, and so we don't get to go back there. But I'd be happy with striking it down on... I think privacy is actually one of your better avenues under sort of a Lawrence Griswold theory that what you put into your body in your home is really not the state's business period and that the state should not be able to get to the point where they can figure out that you're shooting up heroin. Right. Or you could argue 8th Amendment too, like it's excessive punishments. Like, what damage have they done? 8th is tough because once you allow them to criminalize something, again, it comes back to the weakness of due process. My fourth professor used to say, due process just means that you get whatever process is due, which, if you've ever practiced an admin law, is often very, very, very little. I agree, but we did win on the 8th Amendment this week, so let's not... Yeah? And actually, I think that the 8th Amendment could be used as an argument against copyright law because copyright fines are excessive given the, quote, unquote, damage is done. They're arbitrary. They're crazy. $25,000 per incident. It could be literally $3 billion. No, it's... It's very high. There's just... There's a strong presumption towards the legal fiction that Congress thought long and hard about this stuff in creating those penalties, which... No, I'm just saying that they... Not true. No, it's not true. So my final question was going to be, how do we get intellectual property abolition on the Libertarian Party platform? And I already have Karen Ann Harlow working on putting a version of that in the LP Colorado platform. We're talking today actually about that, so... That's a good start. If you can get it accepted in state party... For example, the Libertarian Party of Texas had a death penalty abolition flank for, I think, nearly a decade prior to the National Party adopting one. So getting it adopted at state party level is a good way to get people familiar with it. It's also... You get to hash out the arguments in lower stakes. To get it in a national platform, you need two-thirds of the delegates at convention from the entire country to agree that it is both important enough to put into the platform and you need agreement on the language that it's going to get broad acceptance. And I think we've talked about this kind of offline. I don't know if a hard abolition of intellectual property is going to get two-thirds. I think curtailing some of the excesses, you know, extensive copyright terms 76 years after the death of the author, I think that's the kind of stuff you can get broad support for. Undermining the entire edifice, I think, you know, it's, again, it's like the civil asset forfeiture thing in Tim's to bring it full circle. You eat the elephant one bite at a time. The problem I have is that patent and copyright are federal laws and so I don't really know if states... I don't even know what a state platform would be because state platforms are about what the state law should be and they don't have IP law. Because it's been pre-empted by federal law, so... But I guess it would be... But they have federal representatives. They have congressmen and senators. We're going to nullify copyright law in our state or I don't know. Well, that's how we built this country was nullifying everyone else's copyright and patent. True, that's true. We didn't adopt the Barron Convention until the 1980s, actually. No, I mean, basically stealing IP from other countries was like how the... These are the sort of historical things I wish more people knew that our country was built on piracy. But again, these are shifting power dynamics. This is stuff like privilege theory and when we're making money off of intellectual property, then all of a sudden we've got making-mouses lobbyists having excessive copyright penalties and excessive copyright terms. When we're the young scrappy upstart, it's like patent? What patent? Not from the United States, sorry. Right now, China is where we were. And India is where we were vis-a-vis drugs and pharmaceutical patents. And so recognizing the dynamism of the intellectual property system, I think is the first step to having good conversations. It's one of the things that I've always appreciated about Larry Lessig is he looks at kind of the overall system. He's wrong a lot, but he looks at the dynamism of how the system works and you get better solutions when you actually understand the overall system, not just the piece you're tinkering with. I hear you. Well, I've kept you way longer than I said I would, so I appreciate your time and I enjoyed it. And did I send a bag of you? If so, I'll delete anything you want. No, not at all. Okay. Not at all, not at all. This was a really good conversation. It was a lot of fun. Hopefully it will go a long way to repairing relationships between the factions such as they are reparable. I think some of them aren't because they're fundamental, but some of them probably are. I'm not a monster. Time heals all wounds. Yeah, and dialogue helps. If you can sit down and talk to somebody, it definitely changes your ability to caricature them because you know that they're real people. I agree, I agree. All right, thanks for your time, Nick. Well, this was great. And good luck with the LLP, and I'm glad to be a member and keep doing what you're doing. Thank you so much. Talk to you later.