Pilon and the 14th Amendment
thank Roger Pilon for his cordial and measured response to my tirade
in last August’s Liberty. To a considerable extent, we agree
on matters of principle. Alas, in the application of principle to
reality, a vast gulf separates us.
begin where we agree. Ideally, political obligation is founded on
consent. Government everywhere lacks this foundation. Lysander Spooner
was right in this much, at least: that the kind of "consent"
that undergirds our Constitution differs markedly from the kind
that binds us in normal contractual relations.
consent—unanimous and formally expressed as Spooner would have required—would
make government as we know it impossible. However appealing that
may sound, as Pilon notes, we’re not likely to see this state of
affairs in any of our lifetimes. And so we search for second-best
"consent," expressed via Article V’s amendment process,
is one such solution, albeit quite distant from Spoonerian consent.
It requires some people (those in state legislatures or ratifying
conventions) to consent for others, including those without the
vote, those who oppose the amendment, those not yet living who will
be governed by it. Where the legislators or conventioneers got the
right to consent for the rest of us remains to be convincingly explained.
still, constitutional consent has a great deal to be said for it.
In the political theory that informs the Constitution, power rests
with the people, until that power is ceded by certain of their number
through the amendment process. Getting two-thirds of Congress and
three-fourths of the States to agree to an amendment is by no means
easily accomplished. Thus, if we take Article V seriously, it requires
a substantial degree of social accord to delegate any new powers
to the federal government. This puts the presumption where it ought
to be: against centralized power.
In a Cato Policy Report essay entitled "On the First Principles
of Federalism," Pilon cogently describes that presumption,
and the philosophy undergirding our Constitutional order: "Plainly,
power resides in the first instance in the people, who then grant
or delegate their power, reserve it, or prohibit its exercise, not
immediately through periodic elections but rather institutionally—through
the Constitution. The importance of that starting point cannot be
overstated, for it is the foundation of whatever legitimacy our
system of government can claim. What the Tenth Amendment says, in
a nutshell, is this: if a power has not been delegated to the federal
government, that government simply does not have it.
said. Thus far, Pilon and I agree: contractual consent where possible.
Where such consent is not possible, then constitutional consent
via the Article V amendment process, as a second line of defense.
The Article V process may not always produce just results, or good
amendments, but to the extent that federal powers can be legitimate,
they must arise through that process.
stop here, but in his response to my Liberty article, Pilon
goes further. Contradicting the fine sentiments quoted above, he
holds that, on occasion, when extraordinary historical circumstances
present themselves and the federal government acts in the name of
our natural rights, it can acquire powers never delegated to it
constitutionally. Despite his protestations to the contrary, Pilon
thus embraces a modified version of what is known in legal academia
as "the Ackerman thesis."
Consent and Ackermania
chides Yale’s Bruce Ackerman for his thesis that the Constitution
can be amended by extraconstitutional means. Professor Ackerman
argues that, in unique historical circumstances, there arise "constitutional
moment[s]" whereby popular support for new federal powers obviates
the need to amend the Constitution via the Article V procedure.
Ackerman gives two main examples of where this process occurred:
one is the New Deal. The other, of course, is the Fourteenth
Pilon reviles the first, embraces the second, and denies the charge
of "elective indignation" about abuse of constitutional
process. He gives two reasons. First, Pilon argues that with the
Fourteenth Amendment’s ratification, though there were procedural
flaws,"under extraordinary circumstances, the Reconstruction
Congress took significant steps to approximate a normal ratification
process." By contrast,"FDR never even tried to amend the
Constitution. He merely intimidated the Court, which then capitulated
to his will, without even a pretense at amendment."
suppose there is a difference there, but it seems to me largely
an aesthetic one. It’s the sort of sensibility that might lead one
to prefer a Soviet show trial to a summary execution, as the former
at least pays homage to the idea of the rule of law. For my part,
I’d prefer force to present itself as force, rather than cloaking
itself in the trappings of legal process.
insofar as the touchstone of the amendment procedure is "the
consent it is designed to demonstrate," as Pilon suggests,
then the Fourteenth Amendment never "came close." To the
extent the Article V process occurred, the amendment was twice rejected:
once when the Southern states voted it down, and again when New
Jersey and Ohio rescinded their ratifications. It’s true that FDR
didn¹¹t play by the book either, but let’s put things in perspective.
FDR’s abuse consisted of proposing legislation that violated the
spirit of the Constitution’s independent judiciary. The Radical
Republicans’ abuse consisted of securing "assent" to a
constitutional amendment by means of a military dictatorship. At
least a New Dealer can argue that, given the popularity of New Deal
programs, had FDR taken his chances with Article V, he might well
have gotten an amendment. We know to a moral certainty that the
Radical Republicans wouldn’t have: they tried and failed.
From a Moral "Ought," to a Constitutional "Is"
what I find most intriguing is Pilon’s second reason for distinguishing
Radical Republican thuggery from the Rooseveltian variety. That
reason, he says, goes to "the merits of the matter": "Quite
simply, the Reconstruction Congress got it right, substantively,
whereas FDR got it very wrong." Which raises a host of questions:
when, exactly, does "getting it right" trump constitutional
processes? How far will "the merits of the matter"take
us? Can we go further than "ram[ming] through" amendments
that are "right," as with the Fourteenth? Can we later
take those amendments a little (or a lot) farther than text and
history alone would justify, bending the law for the higher good
of individual liberty? Can we even ignore amendments legitimately
ratified, if those amendments "get it wrong"? Early on
in his response, Pilon writes that "we are likely to lose the
Fourteenth Amendment in its fullest sense only by [a] subsequent
amendment" that repeals it. Let’s say we did. In Pilon’s worldview,
why should Congress and the Court obey the repealing amendment?
questions all. The answers to some of them can be gleaned from Pilon’s
response in this issue of Liberty. In his "Defense of
the Fourteenth Amendment," Pilon makes it plain that he approves
of the Reconstruction Act of 1867, which made the amendment possible.
That act, which was passed during peacetime, two years after Lee’s
surrender at Appomatox Courthouse, carved the South into five military
districts under martial law. It did so without reference to an enumerated
power that could plausibly support it, and in direct violation of
the Constitution’s guarantees of trial by jury and habeas corpus.
How does Pilon square his support for the Reconstruction Act of
1867 with the stated goal of Cato’s Center for Constitutional Studies:
"to revive the idea that the Constitution authorizes a government
of delegated, enumerated, and thuslimited powers, the exercise of
which must be further restrained by our rights, both enumerated
and unenumerated"? The "merits of the matter" must
take us quite far indeed.
point here is not to "re-fight the Civil War," to engage
in Southern revanchism, nor in any way to minimize the abomination
of human slavery or the repugnance of the postwar Black Codes. The
point is that violations of rights, however egregious, do not give
rise to federal powers absent a constitutional delegation of authority.
To hold otherwise is to repudiate constitutionalism. Say it ain’t
Judges and Justice
Pilon’s treatment of the Reconstruction Act of 1867 and the Fourteenth
Amendment suggest, I think, that he’s willing to let moral theory
trump constitutionalism. But whether I’m right or wrong about that,
the larger issue raised by our debate is whether the Fourteenth
Amendment gives the federal courts "vast power" to enact
their own moral theories.
Pilon is somewhat underwhelmed by my parade of horrible Fourteenth
Amendment decisions. He notes that "almost every example on
it involves the hopelessly confused area of discrimination—and racial
discrimination at that." But in our race and gender-obsessed
country, that should be little comfort. One might just as well downplay
post-WWII British socialism by pointing out that it involved issues
intertwined with class.
think it’s significant that the centerpiece of Fourteenth Amendment
jurisprudence—the first line of cases one reads when studying the
amendment in law school Brown v. Board of Education’s coercive,
centralizing progeny, federal judges have taken to running school
districts like conquered provinces, ordering new construction, tax
increases, and shoveling students around like human concrete. Pilon
says, in this regard, that "courts are leading us out of the
mess that earlier courts led us into." They’re sure taking
their time about it. November 8th’s Washington Post reports that,
although 40-odd school districts have been released from court supervision
since Brown v. Board, some 500 more districts in 210 lawsuits remain
under federal court orders.
Pilon is right that things could have gone much worse. As George
Mason University law professor David Bernstein—himself a supporter
of a "strong" Fourteenth Amendment—noted in a Cato Policy
Analysis published by Pilon’s own department: "During the Warren
Court era, liberal legal scholars hoped that the Supreme Court would
even find a right to a minimum income in the Fourteenth Amendment.
Had it not been for the Nixon administration’s appointment of several
new, more conservative justices, the Supreme Court might very well
have entrenched the American welfare state in the morass of modern
narrowly avoided catastrophe, it seems to me we ought to do more
than exclaim,"Whew! That was a close one!" We ought to
pause for reflection before charging again to the edge of the cliff.
But for Pilon, it’s full speed ahead. The Privileges or Immunities
Clause is, he thinks, the sword in the stone that, once freed, can
be used to strike down meddlesome state and local laws that inhibit
economic and personal freedom. But surely the Left will be eager
to wield that sword, using it as a weapon for social engineering
and redistribution. Indeed, when the Court dusted off the clause
last term in Saenz v. Roe, it was not to vindicate economic liberty,
but rather to frustrate welfare reform in California. As Justice
Thomas noted in his dissent, the majority’s decision in Saenz raises
"the specter that the Privileges or Immunities Clause will
become yet another convenient tool for inventing new rights, limited
solely by the predilections of those who happen at the time to be
Members of this Court."
abuses of Fourteenth Amendment authority are only half of the story.
In my August article, I suggested that congressional abuses of the
Fourteenth Amendment—actual and potential—are equally disturbing.
In his response, when Pilon turns to congressional enforcement of
the Fourteenth Amendment, he suggests that I’ve overstated certain
of his views. Specifically, he denies arguing that Congress should
routinely invoke Section Five of the Fourteenth Amendment to strike
down state violations of individual rights. It is possible that
I’ve mischaracterized Pilon’s position here. I based my assertion
in part on congressional testimony Pilon gave on July 20, 1995,
in which heargued that Congress has the power "to negate state
actions that deny citizens the privileges and immunities of citizens
of the United States." Since Pilon views our privileges and
immunities as coextensive with our natural rights, and since states
violate our natural rights routinely, I thought he was arguing for
a good deal of congressional involvement in regulating state-level
regulators. I think this is a monumentally bad idea (who regulates
the regulators that regulate the regulators?).1
Pilon opposes using Section Five in this way, I’m glad to hear it,
and I apologize for attributing to him views he doesn’t hold.
on the issue of federalization of crime, I confess I don’t understand
Pilon’s position. If, as Pilon writes in his response,"federalization
of crime is never authorized under Section Five," then why
did he write, in Cato’s Handbook for the 105th Congress, that "if
the facts had warranted it, the Church Arson Prevention Act of 1996
might have been authorized not on commerce clause grounds, but on
Fourteenth Amendment grounds"? The Act in question federalized
the crime of church-burning. As Rep. Henry Hyde explained upon introducing
the measure: "this legislation will give Federal authorities
the tools necessary to prosecute and bring to justice people who
burn, desecrate, or otherwise damage religious property." If
Section Five does not authorize the creation of federal crimes,
then it could in no wise authorize the passage of the Church Arson
State Action and Inaction
discussion of the Church Arson Prevention Act highlights some of
the problems posed by the state action doctrine: that imperfectly
honored tenet of Fourteenth Amendment jurisprudence which holds
that the amendment only allows regulation of state actors. What
freedom we’ve enjoyed from unbridled judicial and congressional
regulation under the Fourteenth is due to the state action doctrine.
But Pilon wants to repeal the doctrine. In his "Defense of
the FourteenthAmendment," Pilon writes: "it is important
to notice that the amendment protects not against private but against
state action or omission." (Emphasis added).
Of course, protecting against state "omission" is equivalent
to protecting against private action. When the Fourth Circuit Court
of Appeals held that Congress lacked the authority under the Fourteenth
Amendment to enact the Violence Against Women Act, it based its
opinion largely on the state action doctrine.
when the Supreme Court hears the case this term, it adopts Roger
Pilon’s theory that Congress has the authority to "protect
[citizens] against state. . . omission[s]," then the floodgates
are open for a deluge of federal hate crimes laws. Worse still,
if it is legitimate for Congress to legislate directly against private
violence—like a church burning—in the absence of affirmative state
action, then why isn’t it legimate to legislate against private
racial discrimination? If the state action requirement is gone,
then the public-private distinction is gone, and discriminatory
hiring at Denny’s is as open to regulation as discriminatory hiring
would doubtless answer that we have a right to be protected from
violence, but not from other people’s refusal to associate with
us. I couldn’t agree more. But the Supreme Court has not often understood
these subtleties of classical liberal rights theory. Consider, for
example, Reitman v. Mulkey, in which the Court struck down California’s
Proposition 14. That pro-freedom initiative, enacted by California¹¹s
voters, forbade the state from denying "the right of any person
[to] decline to sell, lease or rent [property] to such person or
persons as he, in his absolute discretion, chooses." But according
to the Court, a state constitutional provision that guarantees property
rights would have "involve[d] the state in private discriminations
to an unconstitutional degree." Combine a weakened state action
requirement (which Pilon supports) with the modern passion against
private discrimination, and you get cases like Reitman."Intellectual
fashions may come and go," as Pilon notes, but the rage against
private prejudice is deeply rooted, and backed by federal power.
We have not seen the last of it.
What Is To Be Done?
complains that I haven’t provided a practical answer to the problems
posed by the Fourteenth Amendment. It’'s a fair point; let me try
to remedy that defect.
the short term, my answer is for libertarians to make common cause
with decentralist conservatives. We should join them in promoting
a narrow view of Congress’s enumerated powers under Article I, section
8—and in promoting a narrow view of federal powers under the Fourteenth
Amendment. The ³"Leave Us Alone Coalition"—that loose
conglomeration of pro-freedom interest groups which Michael Greve
has identified as the strongest political force behind a return
to real federalism—wants to be left alone by the Court as well.
And among conservatives on the federal bench, there’s far more enthusiasm
for reinvigorating enumerated powers constraints than there is for
reviving the Lochner Court and feeding it steroids.
should promote a narrow view of Congress’s enumerated powers because,
as Roger Pilon has argued so often and so well, that is the extent
of the powers authorized by our Constitution. We should promote
a narrow view of the Fourteenth Amendment, because that’s the smart
thing to do, and because the original meaning of that amendment
doesn’t matter much. Is this the sort of results-oriented constitutionalism
for which I’ve criticized Roger Pilon? Hardly. Given that the Fourteenth
Amendment was never legitimately ratified,we’re freer to adopt a
narrow construction of the amendment than we would otherwise be.
By giving a narrow reading to the Fourteenth Amendment (which was
not a product of constitutional consent), courts keep faith with
the Tenth (which was). From this perspective, the post-Civil-War
Court’s crabbed construction of the Privileges or Immunities Clause
in Slaughterhouse might well be justified as a blow for originalism.
strategy outlined above is, it seems to me, more prudent and more
practical than Pilon’s plan to first push for a broader interpretation
of the Fourteenth Amendment and then hope that broad interpretation
isn’t hijacked by the Left. As for a longer-term strategy—one aimed
at restoring the kind of decentralist constitutional order I’d ultimately
like to see—I can give but little guidance. For one thing, we ought
to work toward restoring the good name of secession and states’
rights. (How come every time someone speaks favorably about states’
rights, we have to hear about Orval Faubus, but when new federal
programs are proposed, nobody brings up the Fugitive Slave Laws
or Indian "relocation"?).
toward that end, as libertarians, we ought to dethrone Thaddeus
Stevens from atop our pantheon of heroes, and restore Jefferson
to his rightful place. Jefferson considered the states "the
true barriers of liberty in our country." And rather than viewing
federal judges as the surest guarantors of our freedom, he saw them
as a "subtle corps of sappers and miners constantly working
underground to undermine the foundations of our confederated fabric."
Doubtless he’d consider us fools for embracing a system in which
so much of our liberty depends on what side of the bed Justice O’Connor
got out of any given morning.
we ever restore a Jeffersonian constitutional order? I don’t know.
I know it’s worth trying. And I fear we’ll never get there if the
very people who should be leading the fight have decided instead
to join the forces of centralization.
If Congress has the power to "enforce" our natural rights
at all levels of government, then woe betide the Republic when
it elects a Congress with a different view of natural rights than
Roger Pilon. (Most Congresses throughout the 20th Century fit
this description.) Luckily, the Court’s 1997 decision in City
of Boerne v. Flores, which restricted Congress’s
authority under Section Five, makes this particular nightmare
scenario far less likely in the short term.
Healy is an attorney practicing in Northern Virginia. This essay
is reprinted with permission from Liberty