The Libertarian Case Against the Fourteenth Amendment

Update: For related posts:

• Libertarian Centralists
• The Libertarian Case Against the Fourteenth Amendment
• Healy on States’ Rights and Libertarian Centralists; Healy versus Bolick and the Institute for Justice
• Judicial Activism and the Presumption of Unconstitutionality (draft, 2005)
• Doherty on Slaughterhouse, Libertarian Centralism, and the Fourteenth Amendment
• The Heroic Gene Healy on the 14th Amendment: “If this be heresy—then make the most of it!”
• Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”

Someone asked me thoughts to online writings that make the best libertarian case against the 14th amendment. Here is my reply:

The “libertarian” case against it … well that’s a different issue than the legal case. The best legal case is in my view in Raoul Berger’s works, and in the Slaughterhouse decision itself [for Berger, see his work scanned in here; see also here]. My view on the legalities is that if nothing else, the 14th amendment is not clear about what privileges or immunities means. And, given that the broader you construe P-I the more power you grant to the central state, basically eating away at the core federalist structure of the Constitution itself [a great writer on this is law prof Tom McAffee; some of his stuff is here; see also my post The Unique American Federal Government], eroding the “vertical separation of power” and the “limited and enumerated scheme” of powers delegated to the feds, then you have to give the P-I clause a narrow reading and you have to construe any ambiguity against a grant of power to the feds. This is because if you find a right in there, that is a grant of power to the federal government to have jurisdiction over the states on this matter.

But I am not sure there is a “libertarian” case against it. Suppose America invades China to end the forced abortion policy. Is this libertarian? I guess most of us would say no, on balance–but if we succeeded, the liberated women might feel differently. So the state action would have some pro and some con consequences for rights.

If the central state is given power to strike down a certain class of laws at the state level, is this libertarian or not? Well, suppose the feds use it to strike down state law outlawing sodomy, as in Lawrence. (Which I wrote about in Supreme Confusion, Or, A Libertarian Defense of Affirmative Action.) Well, the nullification of an unlibertarian state law is, considered alone, a good thing. Sure. Of course, as a practical matter, almost all the bad laws you think of are at the federal level–drug prohibition, taxation, war, etc. So what we have instead, by virtue of the feds seizing more authority over the states than was vested in them originally, is the feds overturning states’ attempts to legalize marijuana. Etc.

This is why, in my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights, I argue that the Constitution has only instrumental value for the libertarian (see the Introduction).

Given our Constitution, our history, our current contest–is the 14th amendment itself “unlibertarian”? Let me try to sketch out my approach, and point you to some more sources along these lines-though I’m not aware of a single, fleshed out, solidly libertarian account along the lines of what I’m saying here in this email–it could be knitted together from these sources and from a sound libertarian approach.

First, I think we have to recognize that any state is dangerous; and larger, more centralized states are more dangerous; and that as a matter of face, the US state is the most dangerous right now. Far more dangerous than the states, for example, for obvious reasons.

Now, I think paper constitutions are not very effective, since you have the state itself (through its courts) determining its own limits and construing its own document. But our system was set up at least ostensibly as one where the central state was supposed to be limited by the powers delegated, and other limits, in the Constitution; including the federalist limits implied by this scheme: that is, the states are there to temper the feds’ power. So I would say that ceteris paribus, if the central state arrogates to itself power that it was not granted, this is a bad thing from a libertarian point of view. It means the state is not actually as limited as it is supposed to be. So, first: if the 14th amendment was not properly ratified, and the government assumes powers granted to it by that amendment anyway, this is bad. And it seems fairly clear it was not legally ratified. For some good stuff on this see Gene Healy’s pieces: Healy on States’ Rights and Libertarian Centralists; see also The Myth of the Rule of Law

But forget this, since it’s de facto part of the Constitution. Is it a good idea — from the perspective of libertarianism– to enact a 14th amendment? Well, I think libertarians should recgonize the central state as the greatest danger to liberty. The problem I have, as a libertarian, with giving the central state additional power and jurisdiction over “protecting” individual rights from violation by the states are many: it will not protect rights, and more often than not will prevent states from protecting rights (as in marijuana legislation); even if it does protect some rights, it comes at the expense of others violated, and also erodes the federalist limits on central state power. Since the central state is the greatest violator of liberty, I think it’s more important to limit its power, than to give it additional power and weaken the federlist limits on it, just in the vain hope that it will stop the states from violating rights. The thing is the libertarian centralists really do not get that we have a unique central state of limited power–it does not even have the power to outlaw murder. It does not have plenary legislative power. I see no libertarian reason to favor giving it more power. The libertarian centralists do not see that the federal government is a unique creation by compact or treaty of 13 sovereign states (originally), and that it makes no more sense to give that federal state the power to police state laws, than it does for Canada to police the laws of Costa Rica. In fact this is the inexorable logic of the centralists–they have no reason to oppose one-world government (as indeed some of them reluctantly admit — see Objectivism, Bidinotto, and Anarchy and Rand, Objectivism, and One-World Government).

For more skepticism of centralizing state power in the vain hope of protecting individual rights, see Barnett and the Fourteenth Amendment; Randy Barnett’s Proposed “Federalism Amendment”; The Unique American Federal Government; Libertarian Centralists; To Hell with Heller; also More on Kelo and Federalism, and Doherty on Kelo. See also this interchange between attorney J.H. Huebert and Randy Barnett: Book Review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett; Libertarianism and Legitimacy: A Reply to Huebert; No Duty to Obey the State: Reply to Barnett.

Anyway… I fear I have not answered your request directly. Sorry–this is what I got!

Update: see also Roderick Long, Federalism and the Bill of Rights: The Pros and Cons of Kelo:

I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights. As Isabel Paterson notes in God of the Machine: “The proper use of a necessary power and the proper agency for its use are entirely different questions.”

Now I would not oppose giving either the U.S. or the U.N. the power to impose libertarian standards on its members if this power could be guaranteed to be exercised in a reliably libertarian manner in actual practice; but what guarantees this? The power to impose libertarian standards is also the power to impose non-libertarian standards; as Barry Goldwater (or perhaps Karl Hess) famously remarked, “A government that is big enough to give you everything you want is big enough to take it all away.”

Ron Paul, Lessons From the Kelo Decision:

If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases – not only when it serves our interests. The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law. Congress can and should act to prevent the federal government from seizing private property, but the fight against local eminent domain actions must take place at the local level. The people of New London, Connecticut could start by removing from office the local officials who created the problem in the first place.