Libertarian Amendments to the US Constitution

by Anthony Gregory
by Anthony Gregory

Now that the Senate has decided not to amend the Constitution to nationalize marriage, constitutional amendments are fresh on people’s minds.

First off, I think this last episode is a sign of how much the Republicans have degenerated. It seems that many conservatives fell for what amounted to a GOP ploy to distract us from the federal government’s criminal wars and profligate spending, and some conservatives are still deeply troubled the amendment failed. For some reason, many of today’s conservatives believe that if something is very, very important – such as the institution of marriage – the best way to preserve its virtue is to nationalize it.

The same goes for the absurd flag-burning amendment they try to push through every couple years. The federal government has no concern for American liberty, and every day it disgraces the Bill of Rights with its legislation, judicial decisions, and executive orders. Nevertheless, some people think that some misguided fool burning his own flag is the greatest threat to our way of life.

I wonder why Senators would bother amending a document that they already ignore every day of the week. Since when have Senators cared about what the Constitution says? Why bother changing it?

At any rate, it’s a good time for us good libertarians to ponder how the Constitution could be improved. If government officials ever followed the Supreme Law of the Land, such improvements would translate into triumphs for liberty in our time. Here are my suggestions.

Repeal the Sixteenth Amendment (The Income Theft Amendment)

This one, obviously, has to go. A government that can steal whatever fraction of your income that it deems appropriate at any given time is bound to be a threat to liberty. We don’t need to speculate: we’ve seen the wars, socialism, and massive federal bureaucracies that have ailed America since 1913.

Some proponents of the Income Tax in the early 20^th century hoped that it would result in a lower tariff rate. We all hate tariffs, but as Harry Browne has pointed out, tariffs are self-limiting in their revenue collection, because Americans will simply refuse to buy foreign products if they are too expensive. Maybe the Constitution should be amended to limit tariffs and keep them uniform. I’d most prefer the feds, as long as they stick around, to get their revenue from land sales and from the states.

However we decide to deal with its absence, the Income Tax has allowed the federal government to grow astronomically in the last ninety years, and it must come to an end.

While we’re at it, we should get rid of the corrupt Federal Reserve System. Simply observing Article I, Section 8 would gut the Fed, but perhaps we should put its abolition in the Constitution for good measure.

Repeal the Seventeenth Amendment (The "Direct Election" of Senators)

Progressives believed that the direct election of Senators by "the people" would help curtail corruption. Aside from its attack on federalism, the Seventeenth Amendment has hardly achieved its alleged goals. When’s the last time your Senator listened to what you have to say, by virtue of his or her "direct" allegiance to you?

Repeal the Eighteenth Amendment (The Party-Spoiler Amendment)

Oh, wait. We already scrapped that one.

Repeal the Fourteenth Amendment (The Wolf in Sheep’s Clothing Amendment)

A lot of libertarians like the Fourteenth Amendment, because it supposedly allows the federal government to protect our rights against state governments. Hah! I live in California, and I’ve never seen federal agents coming over here to protect my rights against the socialists in Sacramento.

Specifically, some libertarians argue that the sacred Fourteenth has "incorporated" the Bill of Rights, which would henceforth preclude bad state laws. Before the Fourteenth Amendment, when a bad state law came under the Supreme Court’s radar, it was generally upheld as beyond the jurisdiction of the federal government. In 1833, Justice John Marshall decided in Barron v. Baltimore that the Bill of Rights did not bind the states.

But with the Fourteenth, the entire Bill of Rights supposedly became incorporated. Well, maybe not the entire Bill of Rights. There’s a lot of argument about which amendments the states are allowed to disregard.

During ratification of the Fourteenth Amendment, one liberty often discussed was the right to bear arms. Some "Radical Republicans" argued that states should not be allowed to deprive people of arms. Certainly no government has the right to take away anyone’s guns, but so far the Fourteenth Amendment has hardly delivered on that count.

The most success the court has had at protecting individual rights against state laws via the Fourteenth Amendment probably occurred during the so-called Lochner Era.

In 1905, the Supreme Court overturned a New York state law, which a man had broken by allowing his employee to work in his bakery for more than ten hours a day. Justice Rufus Peckham, speaking for the court, said that the law violated the contractual rights of the employer and employee, and therefore violated the Fourteenth Amendment.

For the next 25 years or so, in what became known as the Lochner Era, the Supreme Court struck down numerous state laws that violated the contractual rights of employers and employees. In the 1923 case, Meyer v. Nebraska, Justice James McReynolds overruled a Nebraska statute that forbade teachers from teaching foreign languages to students not yet in the 10^th grade. A teacher had been arrested for teaching German, which was especially taboo given the World War I anti-German propaganda at the time.

The two main conflicting opinions in this decision each had arguments that would appeal to some libertarians. Justice McReynolds, speaking for the court, asserted that the Nebraska law arbitrarily violated the educational and contractual liberty of Americans. Dissenting Justice Oliver Wendell Holmes said the feds shouldn’t overrule the law, even if it might be bad, because the Constitution didn’t allow the federal government to stop "the experiment being tried."

One of the first Bill of Rights liberties to be "incorporated" was freedom of speech. Although the Supreme Court repeatedly upheld federal censorship in the World War I era cases, Schenk v. United States, Frohwerk and Debs v. United States, Abrams v. United States – and although it also upheld a state speech restriction in the 1925 case, Gitlow v. New York – by the time the 1931 case, Near v. Minnesota, came around, the Supremes overturned a Minnesota law that outlawed inflammatory newspapers.

The Supreme Court appeared to become increasingly favorable toward economic and civil liberties, at least in overturning some state laws. The Supreme Court even became bold enough during the New Deal to apply its new sympathy for economic liberty to federal power, overturning the National Recovery Act and the Agricultural Adjustment Act. Franklin Roosevelt threatened to stack the court in his favor and the Supreme Court returned to upholding all kinds of socialism and repression, regardless of what level of government it came from. In 1937, about one month after FDR’s court-stacking proposal, Justice Charles Hughes, speaking for the Court, ruled in West Coast Hotel v. Parrish that the Great Depression made a Washington state minimum wage law constitutional.

The main trouble is that the Fourteenth Amendment, to be upheld consistently, would depend on a radically libertarian federal government willing to toss out nearly every single statute passed by the states. Almost every state law and local ordinance is an attack on liberty, and if either the "due process" or "equal protection" laws applied completely consistently – or the Ninth Amendment, along with the rest of the Bill of Rights, were "incorporated" via the Fourteenth – 99% of all state laws would have to be found unconstitutional.

No one, not even strongly pro- or anti-Fourteenth Amendment libertarians, will ever agree with anyone else on exactly how sweeping the "equal protection," "due process," and "privileges or immunities" clauses of the Fourteenth Amendment should be. Neither did the amendment’s framers. During deliberation over the amendment, at least one proponent of the amendment specifically argued that its vagueness was its charm.

Overall, the Fourteenth Amendment has had the effect of giving the federal government more power, not only over the state governments, but also over the people.

I admit that my reason for preferring a federal, decentralized system of government is that I think that, of all the forms of government, it’s the most pragmatic and realistic way to defend liberty from government. If I didn’t think this, I would not favor federalism. Call me a consequentialist, but it seems to me that utilitarian arguments are the only ones that make sense when considering what form of government you prefer, seeing as how all forms are fundamentally adversarial to liberty.

It’s very telling that so few people ever discuss one of the most creepy provisions in the Fourteenth Amendment, in Section 4:

Shall not be questioned? Shall not be questioned?

Murray Rothbard, G. Edward Griffin and many others have written books questioning the validity of the national debt – I guess they’re all unreconstructed criminals! Indeed, the best solution to the federal debt, as Rothbard unconstitutionally pointed out, would be to cancel it. Such a solution has no hope when the Fourteenth Amendment is law, and America cannot be a free country if the "validity" of the federal government to borrow from bankers and promise to steal from the people to pay back the debts "shall not be questioned."

Refocusing on the more commonly known sections of the Fourteenth Amendment, it is certainly true that when state governments "deprive any person of life, liberty, or property, without due process of law," they commit a terrible crime. Within our states, and as Americans, we should help each other fight off local oppression. People can help each other in other states voluntarily. If a state does something really bad – let’s say it erects death camps – then Americans should, and I think would, ship arms, soldiers, and assistance to those in need. Federal officials can help the privately organized resistance, if they want, but perhaps they’d have to take time off to do so. If they’re not willing to help stop Florida death camps in their free time, perhaps they can’t be trusted to protect us from New Jersey wage controls while they’re on the clock.

Generally speaking, depending on the federal government to stop state oppression is tantamount to hoping the pot will stop the kettle from being black.

New Amendment: Jury Enforcement of the Bill of Rights

The Bill of Rights is no good if it’s not enforced. Without the confusing Fourteenth Amendment, we will need some way to protect Americans from state, as well as federal, tyranny. But trusting the government to protect us from the government is absurd, and has proven a disaster.

Jurors, with their veto power over unjust laws, are the last check on an abusive government, but fully informed juries have long been things of the past. I suggest this amendment:

New Amendment: The Peace Amendment

Many libertarians have suggested peace amendments. I once read about a proposed one from the early 20^th century that I think best gets to the heart of the matter. This is basically it, with some of my own modifications:

Repeal Articles 1-7 (The Constitution)

Our country would do well if it eventually repealed the whole Constitution, at least up until the Bill of Rights. It was a mistake to give Congress the power to coin money, to borrow on our behalf, to establish Post Offices, and to have influence over the militia.

In its place, we should reinstate the Articles of Confederation, at least until we find something even better. Perhaps we can amend the Articles to include the Bill of Rights, which is the best part of the Constitution, anyway, and also to mandate that all national government buildings post the Bill of Rights on their walls.

There will certainly be problems under a revival of the Articles of Confederation, such as there were before 1789. But it’s hard to see how a libertarian wouldn’t gladly settle for the occasional Shays’ Rebellion or interstate trade dispute – or even the occasional state-sanctioned gay marriage – if it meant an end to today’s massive imperial welfare/warfare state terrorizing Americans and foreigners alike.

If the Senate considers any of these amendments I’ve proposed, let me know. Somehow I doubt it.

July 21, 2004

Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He earned his bachelor’s degree in history at UC Berkeley, where he was president of the Cal Libertarians. He is an intern at the Independent Institute and has written for Rational Review, Strike the Root, the Libertarian Enterprise, and Antiwar.com. See his webpage for more articles and personal information.

Copyright © 2004 LewRockwell.com

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