The Squalid 14th Amendment

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SEC.

1. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

SEC.

5. The Congress shall have power to enforce, by appropriate legislation,

the provisions of this article. — Fourteenth Amendment to the

US Constitution

Political

decentralization and individual liberty: the two are intertwined,

but the former doesn’t guarantee the latter. As Americans discover

every day, the government that’s closest to you is often in the

best position to put the screws to you. How should libertarian political

theory deal with the problem of oppression by local sovereigns?

In the American context, this question translates to: What should

libertarians think of the Fourteenth Amendment?

It’s

a question without an easy answer. Classical liberals of good faith

have found themselves on either side of the issue. Thus, Lord Acton,

following the Confederacy’s defeat, wrote to Robert E. Lee: “I

saw in States’ Rights the only availing check upon the absolutism

of the sovereign will…. Therefore I deemed that you were fighting

the battles of our liberty, our progress, and our civilization.”

But by the late 20th century, libertarians have come full circle

on the question of states’ rights and the Fourteenth Amendment.

Today, the libertarian orthodoxy holds that the Fourteenth Amendment

perfected the Framers’ design, fulfilling the promise of the Declaration

of Independence. Further, the promoters of the new orthodoxy urge

that the amendment be given robust application against the states,

in order to secure our natural rights to life, liberty and property.

On

this question, no one is more orthodox than Roger Pilon, Director

of the Cato Institute’s Center for Constitutional Studies. In him,

Cato has an able advocate, one who provides a valuable counterweight

to a New Right jurisprudence that overvalues majoritarianism and

views the judicial branch as the gravest threat to our liberties.

Unfortunately, Pilon’s case for the Fourteenth Amendment is deeply

flawed. His case for the political legitimacy of the amendment requires

him to ignore the circumstances of its inception; and his case for

the amendment’s efficacy as a means of securing individual liberty

depends on a Panglossian view of judges and federal supremacy. The

defects in Pilon’s arguments should prompt libertarians to reexamine

the new orthodoxy on the Fourteenth Amendment.

Ratification

“at the Point of the Bayonet”

Throughout

Roger Pilon’s published work, the watchword is “consent.”

We come out of the state of nature, so the myth runs, the better

to secure our natural rights. The government we institute derives

its just powers from the consent of the governed. “That, and

only that, is the source of their legitimacy,” Pilon tells

us in Economic Liberties and the Judiciary. Though Pilon concedes

that unanimous consent is a fiction, he suggests that the Framers

did a tolerably good job in requiring broad consent for the adoption

of our Constitution and in the procedures for its amendment. In

a recent Cato Institute Policy Analysis paper, “Reviving the

Privileges or Immunities Clause,” Pilon and coauthor Kimberly

C. Shankman write: “the supermajoritarian consent that was

required for constitutional ratification and amendment…served,

as far as practically possible, to legitimately institute government,

authorize its powers, and change those powers.”

Quite

properly, given his emphasis on consent and legitimacy, Pilon has

repeatedly excoriated the political branches for arrogating to themselves

powers that the people never delegated through Article V’s amendment

process. In their Cato paper, Pilon and Shankman apply similar scorn

to the judicial branch for ignoring the Fourteenth Amendment. They

recount the story of the 1873 Slaughterhouse Cases, which “effectively

eviscerated” that amendment’s Privileges or Immunities Clause.

The authors spare no venom in decrying “judicial resistance

to popular will,” which thwarted “the course that…the

American people had meant the Court to follow.”

But

somewhere along the way, the true history of the Fourteenth Amendment’s

adoption has disappeared down a memory hole. When one reviews that

history, it becomes clear why Pilon and Shankman prefer to discuss

the amendment in the abstract, antiseptic terms of social contract

theory. An “immaculate conception” account of ratification

suits their argument better: the real story’s a little too dirty

for the kids.

We

return to 1865. As the legally reconstituted Southern states were

busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated

Congress refused to seat Southern representatives and Senators.

This allowed the remaining, rump Congress to propose the Fourteenth

Amendment, consistent with Article V’s requirement of a 2/3 majority

for sending a proposed amendment to the states. Never mind that

Congress also clearly violated that Article’s provision that “no

State, without its Consent, shall be deprived of its equal suffrage

in the Senate.”

Though

the Northern states ratified the Fourteenth Amendment, it was decisively

rejected by the Southern and border states, failing to secure the

3/4 of the states necessary for ratification under Article V. The

Radical Republicans responded with the Reconstruction Act of 1867,

which virtually expelled the Southern states from the Union and

placed them under martial law. To end military rule, the Southern

states were required to ratify the Fourteenth Amendment. As one

Republican described the situation: “the people of the South

have rejected the constitutional amendment and therefore we will

march upon them and force them to adopt it at the point of the bayonet.”

President

Andrew Johnson saw the Reconstruction Act as “absolute despotism,”

a “bill of attainder against 9,000,000 people.” In his

veto message, he stated that “such a power ha[d] not been wielded

by any Monarch in England for more than five hundred years.”

Sounding for all the world like Roger Pilon, Johnson asked, “Have

we the power to establish and carry into execution a measure like

this?” and answered, “Certainly not, if we derive our

authority from the Constitution and if we are bound by the limitations

which it imposes.”

The

rump Republican Congress overrode Johnson’s veto and enacted statutes

that shrank both the Supreme Court’s appellate jurisdiction and

the Court itself — just in case the judicial branch got any funny

ideas of its own about constitutionalism. Jackboot on its neck,

the South ratified, but not before New Jersey and Ohio, aghast at

Republican tyranny, rescinded their previous ratifications of the

mendment. Even with the fictional consent of the Southern states,

the republicans needed New Jersey and Ohio to put the amendment

over the top. No matter; by joint resolution, Congress declared

the amendment valid. Thus it — you’ll excuse the phrasing– “passed

into law.”

The

squalid history of the Fourteenth Amendment poses serious problems

for Roger Pilon. Pilon’s critique of the New Deal has always included

withering scorn for FDR’s extraconstitutional thuggery, in the form

of the infamous Court-packing scheme. As Pilon tells the story,

FDR muscled the Court into approving radical constitutional changes

that could be enacted only by means of Article V’s amendment process.

The people never delegated to the federal government the powers

it took for itself during the New Deal. But neither did they delegate

to the federal goverment the powers it seized in 1868. Any New Deal

aficionado who knows his history is entitled to wonder about Pilon’s

selective indignation: does he invoke the principles of consent

and legitimacy only against constitutional changes he dislikes?

The

Fourteenth Amendment in Theory and Practice

Ancient

history, you say. The Fourteenth Amendment is in everybody’s Pocket

Constitution, and it’s not going anywhere. Fair enough, but the

above account shows that the amendment cannot be justified with

a bedtime story about Lockean first principles. If libertarians

are to embrace the Fourteenth Amendment, they’ll have to find pragmatic

reasons to do so. The argument must be that the amendment has been,

and will continue to be, an effective weapon in the struggle for

individual liberty. But even here, the case is not nearly as strong

as Roger Pilon believes it to be.

What

is strong is Pilon’s account of the original understanding of the

Fourteenth Amendment, and particularly the amendment’s “Privileges

or Immunities” clause. As he recounts in the Cato Handbook

for the 106th Congress and elsewhere, the Civil Rights Act of 1866,

which the amendment was designed to constitutionalize, gives us

a good idea of the kind of privileges and immunities the drafters

wanted to secure. The rights that act protected from state infringement

were “basic common law rights,” such as “the right

to make and enforce contracts…to purchase, lease, sell, hold,

and convey real personal property.” As Pilon has it, the clause

protects a substantive core of natural rights from state infringement.

Thus, Lochner v. New York, the much-maligned 1905 case in which

the Supreme Court struck down a New York statute setting maximum

hours for bakery workers, was closer to the original understanding

of the Fourteenth Amendment than much that has come since. [Though

with the Privileges or Immunities Clause ‘effectively eviscerated,

the Lochner Court was forced to rest its decision on the amendment’s

Due Process Clause, which, as Pilon notes, provided a weaker foundation.]

Properly

understood, then, the amendment doesn’t give judges “power”;

rather, it enlarges the sphere of the judicial “veto,”

allowing judges to strike down state and local laws that infringe

on natural rights. The Slaughterhouse majority warned that a broad

interpretation of the amendment would make the judiciary “a

perpetual censor upon all legislation of the States.” To which

a good libertarian can answer, “So what?” One could riffle

through most state and municipal codes, tearing out hundreds of

pages at random, and leave the law in better shape than one found

it. As Pilon argues in a 1993 Notre Dame Law Review article, it

is the Court’s job to be a “perpetual censor,” to ensure

that legislative enactments “both proceed from the authority

granted them and are consistent with rights restraining them.”

The Fourteenth Amendment merely provides “an additional layer

of protection” for rights.

Threats

from the Least Dangerous Branch

But

in practice, the Fourteenth Amendment has often operated as a grant

of legislative and executive power to judges. And that power has

been used to violate the very rights it was meant to secure.

This

is nowhere clearer than in the line of cases thought to represent

the Fourteenth Amendment’s finest hour: Brown v. Board of Education

and its progeny. Brown has iconic status on the Left and much of

the Right, because many commentators see it as ending de jure segregation

and furthering the first Justice Harlan’s noble ideal of a “color-blind”

Constitution.

But

this is only part of Brown’s story. Equality before the law shifted

effortlessly into forced equality of outcome in the space of a few

short years. State resistance, massive or otherwise, was useless.

In North Carolina Board of Education v. Swann, the Court struck

down a state statute providing that no student would be compelled

to attend any school for the purpose of improving racial balance

in the schools. In Washington v. Seattle School District, the Court

did the same with a statewide voter initiative preventing mandatory

busing for purposes of integration. In U.S. v. Yonkers, a federal

judge held the Yonkers city government in contempt, ordering it

to integrate its schools by building scattersite public housing

in predominantly white areas. This line of cases reached its coercive

nadir in Missouri v. Jenkins, when the Supreme Court held that,

to further integration, a federal judge could order a local government

to increase property taxes, even though the increase was barred

by the state constitution.

“Well,

it serves you right for setting up government schools in the first

place,” say we libertarians. But wait. Faced with a desegregation

order in the early ’60s, Prince Edward County, Virginia, refused

to assess school taxes and instead shut down its public education

system. In 1964’s Griffin v. County School Board, the Court ordered

Prince Edward County to levy the taxes and reopen its schools. In

1996, when the Court ended male-only admissions at the Virginia

Military Institute, one of the obstacles to VMI’s privatization

was a possible Griffin-based challenge from the Justice Department.

Thus,

in the wake of Brown, federal courts enforcing the Fourteenth Amendment

have seized vast coercive powers, state resistance to taxation and

social engineering notwithstanding. To what benefit? None, actually.

As the editors of a leading–and, it should go without saying, leftist–constitutional

law text admit, there is “no proof . . . that [integration]has

aided blacks in any demonstrable fashion.” (Stone, Seidman,

Sunstein, and Tushnet; Constitutional Law; 2d Ed. Little, Brown,

and Co.; 1991 pps 530-31) It’s true that in recent years, the federal

courts have cooled somewhat to desegregation lawsuits. It’s also

true that, thanks to Missouri v. Jenkins, we’re no longer protected

from taxation by unelected, life- tenured federal judges. The precedent

remains on the books, waiting for the next egalitarian jihad. In

its 1868 Resolution deratifying the Fourteenth Amendment, New Jersey

charged that the amendment would work a radical “enlarge[ment]

of the judicial power.” In fact, New Jersey suspected that

the amendment itself was “made vague for the purpose of facilitating

encroachment on the lives, liberties, and property of the people.”

Maybe the Garden State was on to something.

If

You Liked the Commerce Power. . .

In

addition to the de facto grant of legislative and executive power

to judges, the Fourteenth Amendment includes a de jure grant of

power to Congress. Section Five of the amendment reads: “The

Congress shall have power to enforce, by appropriate legislation,

the provisions of this article.” Roger Pilon argues that Congress

should routinely invoke Section Five to strike down state violations

of individual rights. In the Cato Handbook for the 105th Congress,

he declares that Congress has “often failed in its responsibility

under the Fourteenth Amendment to police the states. Here is an

area where federal regulation has been, if anything, too restrained.”

It’s

unlikely that Pilon fully recognizes the implications of this position.

In the passage immediately preceding the above, he rails against

burgeoning federalization of crimes, which has taken place because

of willful misinterpretation of Congress’s authority to regulate

interstate commerce. But if Congress can step in under the Fourteenth

Amendment to secure basic individual rights when states “fail

to secure them against private violations,” as Pilon assures

us Congress can, then Pilon has opened the door to a vast federal

police power. Say goodbye to the tentative restriction of federal

authority provided when the Court struck down the Gun Free School

Zones Act in U.S. v. Lopez. Does carjacking violate our rights to

liberty and property? There’s your authority for the Federal Carjacking

Statute. Do outlier states provide women with insufficient protection

against domestic abuse? Quite possibly, so make way for the Violence

against Women Act. If you like the “substantial effects”

test for invocation of the Commerce Power, then wait until you see

what Congress can do with matters that “substantially affect”

liberty. [In fact, the Violence Against Women Act VAWA) is based

in part on just such a theory of Congress’s power under Section

5. Several district courts have upheld the statute. But on March

5, the Fourth Circuit Court of Appeals emphatically rejected VAWA,

and with it the theory that Congress can use the Fourteenth Amendment

to federalize crimes when, as Roger Pilon puts it, “State measures

prove inadequate.” See Brzonkala v. Virginia Polytechnic 1999

WL 111891 pps 40-55.]

In

the midst of the recent furor over black church burnings, Congress

passed the Church Arson Prevention Act. In his Cato Handbook chapter

and a 1996 Washington Post op-ed, Pilon chides Congress for relying

on the Commerce Clause in enacting the anti-arson statute. Instead,

he tells us, Congress should have invoked its authority under Section

Five of the Fourteenth Amendment. “If the facts had warranted

it,” he writes, Congress would have had “ample authority”

under Section Five to pass the Church Arson Prevention Act. Reading

between the lines, I surmise that he doubts that the facts warranted

it. Indeed, there’s every reason to believe that they didn’t, as

research by Michael Fumento and others later suggested. But we operate

with a real-world Congress, susceptible to political pressure, and

a real-world judiciary reluctant to make what it sees as political

judgments. If the only check against federalization of crime is

to be found in the judiciary’s willingness to overturn congressional

findings of fact, then that’s no check at all.

To

go before Congress and the readership of the Washington Post and

offer up an underused federal power is to stride onto enemy turf

and proclaim, “Forget about the pipe you’ve been beating us

with. Try this chain.” The logic of public choice applies to

Section Five as well as it does to any other enumerated power. The

constituency for commonlaw liberties is broad and diffuse; the constitutuencies

for federal coercion are discrete and concentrated. They’ll win

the fight.

They’re

already winning. Consider what Congress actually does with Section

Five of the Fourteenth Amendment. That provision is most often invoked

in the service of modern notions of equality, providing private

rights of action against discrimination. Among the statutes upheld

under Section Five are the speech-restrictive Freedom of Access

to (Abortion) Clinic Entrances Act, the Americans with Disabilities

Act, the sex discrimination provisions of Title IX of the Civil

Rights Act, and the Age Discrimination in Employment Act. With regard

to the latter three, Section Five allows Congress to abrogate state

governments’ Eleventh Amendment immunity from suit in federal courts.

Congress and the courts have used Section Five to allow extortionate

lawsuits against state governments, agencies, and schools.

It’s

true that Congress generally does not invoke Section Five when it

regulates private individuals. This is the case for two reasons:

1) Congress already has the power to do almost anything it wants

under current Commerce Clause jurisprudence; and 2) current Section

Five jurisprudence limits Congress to regulating “state action.”

But this can change. The “state action” doctrine has proved

a rather porous barrier to Congress’s power to regulate private

actors. The first Justice Harlan, whom Pilon and Shankman seem to

view as some kind of Lockean fellow traveller, opposed the doctrine

as an unreasonable limitation on Congress’s power to regulate businesspeople;

so too did six members of the Warren Court at one point in the 1960s.

Though the state action doctrine has remained nominally intact,

the Court has found “state action” in situations such

as enforcement of private, racially restrictive covenants; enforcement

of racially neutral trespass statutes against lunch counter sit-ins;

and racial discrimination by private businessmen leasing property

from the state. The doctrine is eminently capable of giving way

to a general regulatory power. If the Supreme Court gets serious

about restraining congressional abuses of the Commerce Power, look

for Congress to use Section Five to reenact and extend modern antidiscrimination

laws. And look for the Court to cave.

Pilon

recognizes that the Fourteenth Amendment carries with it a potential

for abuse; but his solution is profoundly unsatisfying. In recent

Congressional testimony, he stated that “the Fourteenth Amendment

has itself been misused, both by Congress and by the courts. But

that is no reason to ignore it. Rather, it is a reason to correct

the misuses.” According to Pilon, the answer to bad judging

is better judges and better judging. To get where we want to go,

we need to appoint judges who understand the Constitution and “the

classical theory of rights” that stands behind it. Judges need

to get in touch with the “Higher Law background” of American

constitutionalism.

Well,

I’ve spent the past three years in law school surrounded by future

federal judges. Here a passion for levelling infects the classroom

discussion, and the idea of natural rights has the intellectual

status of phrenology and creation science. Students see in the Fourteenth

Amendment an irresistible engine for reshaping society along egalitarian

lines. They do not care what the amendment actually means. In this

context, Pilon’s solution sounds positively Lennonist: “Imagine

all the judges/Applyin’ Higher Law…”

Dreams

and Nightmares

I

may say that Roger Pilon’s a dreamer, but I don’t have a more practical

answer. Nor have I been entirely fair to the Fourteenth Amendment.

In the areas of free speech and criminal procedure, for example,

the amendment has been the source of some of the Court’s proudest

moments, some of the greatest vindications of liberty in American

constitutional law. Given a regime of federal supremacy, perhaps

the Fourteenth Amendment can help us check local tyranny in some

areas.

But

libertarians, of all people, should recognize that a Congress and

a Court that are powerful enough to give us everything we want are

powerful enough to take it all away. Individual liberty competes

with the mirage of social justice in the hearts and minds of the

governing elite. The Fourteenth Amendment can further the forcible

enactment of either vision.

Libertarians

are reluctant to embrace “states’ rights,” an admittedly

unfortunate term. But the independence of the states once served

as a check on coercive social experimentation. From this perspective,

Justice Brandeis’s rationale for federalism, that individual states

can serve as “laboratories of democracy,” gets it precisely

backwards. The point of decentralization is that the smaller the

laboratory, the easier it is for us rats to escape the Skinner Box.

That

battle was perhaps lost after Appomatox, in what Roger Pilon grotesquely

mischaracterizes as a “war to secure liberty.” I don’t

expect Pilon to consign himself to irrelevancy by advocating the

dissolution of the Union. But I would like him to temper his fervor

for the Fourteenth Amendment with a recognition of the difficulties

posed by federal supremacy. And I’d like libertarian followers of

the new orthodoxy to consider whether Pilon’s idea, that Congress

and the Court can serve as guarantors of our liberty, amounts to

the fond hope that the wolf at our door can be housebroken.

Our

common goal is the night-watchman state. If ever again we approach

that ideal, will it be with the help of a federal government that

is the benevolent master of all it surveys? Or will we get there

by way of radical decentralization with little or no federal oversight?

These may be loaded questions, but they ought at least to be seriously

considered. It’s my view that if we can ever rid ourselves of federal

supremacy–of what Lord Acton called “the absolutism of the

sovereign will”–losing the Fourteenth Amendment will be no

sacrifice at all.

If

the dream of independent states seems absurdly unrealistic, then

consider a nightmare. Consider Professor Catharine A. MacKinnon’s

Fourteenth Amendment. In her book Only Words, MacKinnon tells us

that the First and the Fourteenth Amendments conflict. She writes

that “the Reconstruction Amendments…move[d] the ground under

expressive freedom, setting new limits and mandating new extensions,

perhaps even demanding reconstruction of the speech right itself.”

When this is properly understood, the state will be able to censor

the speech of “dominant” classes, and forcibly reconstruct

society to ensure “equal access to speech.” Indeed, “the

state will have as great a role in providing relief from injury

to equality through speech and in giving equal access to speech

as it now has in disciplining its power to intervene in that speech

that manages to get itself expressed.” Those who consider MacKinnon’s

words the irrelevant musings of a tenured law professor are unfamiliar

with her successes in the area of sexual harassment law, and unfamiliar

with the cachet her ideas have in the legal academy. Given federal

supremacy and the vast powers the Fourteenth Amendment confers on

Congress and the courts, it matters little whether Roger Pilon is

right about the amendment’s original meaning. In the fight between

Pilon and MacKinnon, on the battleground of American legal culture,

I root for Pilon. But as a betting man, I’d place my chips on MacKinnon.

Gene

Healy is a recent graduate of the University of Chicago Law School.

This article was first published in the August 1999 issue of Liberty

Magazine.

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