Lawrence Auster has been having a discussion of gay marriage and “civil unions” here. Some earlier comments from me are posted there, but the latest was too long, so now it is here:

Re Laura W.

Does he propose to abolish the court system as well? How about prisons? And police?

The court system seems too intertwined with our society to dramatically change it in one fell swoop. Bruce Benson describes the traditional Anglo-Saxon justice system (which strikes me as preferable to the modern one) and how it was stolen and perverted by Kings and their successors in “The Enterprise of Law”, which I am currently in the process of reading and highly recommend. I would like to see a shift from paramilitarized police towards posses through which the community enforces laws. The inhabitants of England were quite wary of professional police (having seen how they behaved in France at the time) and had to be slowly dragged into a new policing system kicking and screaming. I don’t think deterrence has a major impact, while incapacitation does, so until the death penalty (or perhaps cutting off hands or exiling) is greatly expanded, I see a prison system as quite necessary. However, our current prison system is quite dysfunctional and when low on room or funds discharges violent criminals to take in a vast influx of people who committed “crimes” that were not recognized as such until relatively recently and pose no threat to others. The prison system would be much improved if laws criminalizing such activities were abolished so the justice system could focus on criminals who are actually dangerous.

Can you imagine people working out custody disputes on their own?

There is a book about just that sort of thing which I have not read titled “Order Without Law” by Robert C. Ellickson. So I can imagine it but do not think it is sufficient to go without any legal system.

Re Lawrence Auster

First, my position is that the laws governing marriage are set by the state, that marriage is recognized and validated by the state, and that this has always been the case in America.

If you read the Coontz op-ed linked to in a previous response you would know that until the late 19th century state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. Furthermore, the question here is whether each state may determine what kind of marriage is acceptable or the federal government. The reason this is a major political issue at all is because the State uses marital status to determine what special benefits people may receive. In a traditional society the State would not be in the business of handing out these benefits, nor would it be any of its business whether people qualified as “married”.

I imagine that in medieval England, it was the Church that performed this function.

Again quoting from Coontz “For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married. In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce. Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.”

But the Church then exercised state-like powers, forming much of the public basis of society. We don’t have a Church like that in the United States.

It is true that the Church exercised more state-like powers, but as just pointed out above, for most of history it took a very laid-back attitude toward marriage and did not use its powers much in that area. Churches today are fully capable of recognizing marriage and if the State got out of the business of requiring that private organizations grant benefits we would be free to refuse to recognize marriages we viewed as invalid. I would also note that the Amish have done quite a good job of preserving their traditions while having virtually no involvement with the State, and their society is so healthy there has only been one recorded murder in the history of the Amish in America. There is a working example for traditionalists to imitate, though I doubt most would be willing to forsake technology and the State may only permit them to exist because it does not view them as significant or (given their non-violence) a threat.

the federal government was understood as the creature of the states and the people, deriving its powers from the consent of the people and the states

I would quibble with you there. It was the creation of the states. There was no more a decision made by “the people” of the thirteen colonies than there was one by “the people” of North America. It was entirely done through the states and was an agreement between them, just as the United Nations is an organization of nations rather than deriving from “the people”.

Otherwise it becomes an ineffectual pathetic entity such as the United States was under the Articles of Confederation.

The central government’s ineffectiveness in raising taxes was a feature, not a bug. The state governments were fully capable of performing the necessary duties of governance. Europe does not need the EU, nor (I would argue) did Germany or Italy need unification. Empowering our national government was simply a mistake. The predictions of the anti-federalists have been proven right while the “federalists” (really nationalists) were wrong.

The several states of the United States are also … the state. So, underneath your radical libertarian, anti-state rhetoric, which would delegitimize and strip all functions from the state, your argument in reality is not against the state as such, it is against the federal government acting without restriction. But your radical anti-state rhetoric says otherwise. You act as though the state, as such, is the problem. Which logically would lead to the elimination of the state. Which would reduce man to the state of nature.

I am not an anarchist. I agree with Randall Holcombe that government is inevitable.
I am not sure how I stand on Anthony de Jasay’s claim that limited government is impossible. The national government is simply the most powerful entity that represents the biggest threat at the moment. Thankfully, international bodies are not that powerful but if they came to be I would come to view them as a bigger threat and urge that our national government be supported as a bulwark against them. Currently state governments are considerably weaker than the national government, and so I urge that they be strengthened against it. If there were no national government (my desired outcome, as I do not think it necessary) I would come to view the state governments as the biggest threat and urge that counties be strengthened against them. As far as I know, city-states are the smallest viable units and possessed the most liberty in their time, so that is what I would ultimately aim for. All the while I would also support non-state entities against states, which does not entail supporting federal Supreme Court decisions invalidating state laws restricting such entities (which I would view as empowering the central government over the states). As long as state governments are restricted from doing certain necessary things (conducting their own foreign policy, restricting immigration) I support the national government carrying out those duties. Ultimately I want those duties to be transferred back to the states though. Making marriage determined by the national government is a step in the wrong direction and will ultimately result in traditional marriage having no safe refuge in the country. A better federal amendment would be explicitly denying the national government’s role in the matter and ensuring that each state could determine the issue as it sees fit.

If you’re against illegitimate encroachments by the federal government, then you are not against the federal government, you are against its illegitimate encroachments.

The federal government will always attempt “illegitimate encroachments” as long as it exists and has the power. I do not see this additional layer of government as necessary and so I am in fact against the existence of that government and wish to see independence returned to the states.

I do not bother with the concept of “legitimacy” at all. Governments do not derive their existence from some agreement like a social contract but out of force and conquest. The question is what possible situations I prefer, not what is legitimate.

you call for marriage to be made into a private institution, thus destroying the central institution of human society, which is marriage.

Marriage used to be private, and was not destroyed. It is the State’s intrusion on marriage that is currently destroying it.

What the libertarians ought to do is drop their libertarianism and become Constitutionalists.

For most of my time as a libertarian, I was a Constitutionalist. Ron Paul is a libertarian and perhaps the most devoted defender of the Constitution. The Constitution is just a piece of paper and cannot enforce itself, and so the powerful government it created has proceeded to ignore it and commit numerous violations. There is no reason to expect a government to restrain itself, and I must ultimately regard the Constitution as having failed and the framers as having been well-intentioned but mistaken in creating it. The anti-federalists were right, the federalists wrong, and the Articles of Confederation a better system than the Constitution in practice.

UPDATE: I figured I should link to here, where I go over why I am not a “libertarian centralist” that wants central governments to prevent local governments from violating the rights of their citizens. I also remembered some old chains at Volokh that might be of interest: Gay marriage & federalism and Maggie Gallagher vs Dale Carpenter. Also, Sandefur has a post with the same title as this, only with the ampersand spelled out. He also has a post on his shaken faith in originalism. I agree with him that the Founders were not positivists, but I agree with Bork that positivism is the only way to attempt to heed the laws they created rather than replacing them with whatever we feel like without bothering to pass legislation. For an anarcho-libertarian argument that law inherently has no true meaning we can strive to follow as originalists attempt, see John Hasnas’ The Myth of the Rule of Law. Like I said here, it’s technically correct but we can do “good enough” and it is desirable to act as if there is a real meaning in order to establish the norms of a nation of laws rather than men.

UPDATE 2: Relatively anti-market left-communitarian Harvard economist explains here how the modern nation-state has undermined community since the French Revolution in a diavlog with Will Wilkinson (who I think ran circles around him) on his book The Dismal Science. The message of the book seems to be “We’ve got enough stuff, let’s be more like the Amish”.