Supreme Confusion,
Or, A Libertarian Defense of Affirmative Action
by
Stephan Kinsella
 Recent
U.S. Supreme Court decisions on gay
rights and affirmative
action have liberals cheering and conservatives stewing. In
Lawrence
v. Texas, the Court overturned a Texas law outlawing same-sex
sexual conduct. In two decisions on affirmative action policies
by state universities, the Court split the baby. Grutter
v. Bollinger upheld the affirmative action policy
of the University of Michigan Law School, while Gratz
v. Bollinger overturned the point-based affirmative action
policy of the University of Michigan’s undergraduate colleges.
Where
should libertarians stand? I suspect most mainstream (read: non-paleo)
libertarians are with the liberals on the gay rights decision and
with the conservatives on the affirmative action decision in Bollinger.
After all, laws banning consensual sex are unlibertarian, and it
is a good thing if they are overturned, or so it is argued. On the
other hand, affirmative action practiced by state universities is
unlibertarian, so the Court in Grutter
v. Bollinger should have banned the affirmative action
policy of the University of Michigan Law School. Case in point,
the Center
for Individual Rights launched the above-noted challenges to
the University of Michigan’s affirmative action policies.
The
Constitutional Scheme
Let’s
assume for the moment that state laws banning gay sex and state
university affirmative action policies are indeed unlibertarian
– that they violate individual rights. Even if this is the
case, the U.S. Supreme Court has no business overturning them. The
federal government simply has no jurisdiction over these laws, any
more than the divorce court in Panama ought to be able to overturn
repugnant laws of, say, Hong Kong, or any more than the United Nations
should be able to order the U.S. to shift to metric.
The
U.S. federal Constitution
was designed to provide various structural limitations on federal
power. These limits include horizontal separation of powers and
checks and balances (dividing federal power between co-equal legislative,
executive, and judicial branches), as well as explicit limits on
federal power listed in the Bill
of Rights. More importantly, the Constitution established a
federal government of limited
and enumerated
powers, and thus sets up vertical separation of powers between
the states and the federal government.
The
limited powers scheme of the Constitution protects individual rights
because the federales are simply not empowered to violate
individual rights. Thus, argued the Federalists, it is not necessary
to list the rights that the federal government may not invade; it
is better to simply rely on the fact that the federal government
has only certain limited things it can do. In fact, when ratified
in 1789, the Constitution did not contain the Bill of Rights –
it was added in 1791. But the Antifederalists demanded
a bill of rights, anyway, just to be sure. In any event, by withholding
the "plenary" type of "police power" that normal
sovereign states are said to have (the power to legislate in general,
for the general protection and benefit of the populace), the Constitution
in effect protected an open-ended set of individual rights.
But
not only was the federal government not authorized to invade individual
rights; it was also not empowered to do many things that state governments
may do, such as outlaw murder. The central government’s inability
to outlaw murder does not mean there is a right to commit murder,
of course. The Constitution leaves to the states the role of protecting
them from such private crimes.
More
importantly for our purposes, the feds were also not granted the
power to protect individuals from unwise or unjust state laws. For
example, the Congress was not granted the power to prevent the sovereign
states from setting up a state religion or censoring certain speech.
This does not mean that states have a "right" to censor
speech, but it does mean that the federal government is powerless
to interfere with state laws just because they are unjust. The Constitution
was designed primarily to establish, and strictly limit the power
of, a central government. The states already existed and had their
own state constitutions, which, along with the political process
within the states, are the primary means of placing limits on state
government power.
The
federal government, as a government of strictly enumerated and limited
powers, is thus different from the states which, from the perspective
of the federal Constitution, are sovereign states with plenary power.
This means that except where the Constitution explicitly limits
state power, the states are free, within the bounds of their own
state constitutions, to legislate what they wish.
Obviously,
if the limits set forth in the Constitution were recognized by federal
officials (though this is of course unlikely),
the federal government’s ability to trample our rights would likewise
be limited. Libertarians, therefore, ought to be in favor of members
of the state having to follow the very rules they claim need to
be followed to give the state legitimacy. (N.b.: Joe
Sobran has written many great essays on federalism and the constitutional
scheme.)
Judicial
Review of Federal Action
In
the original federal scheme, the Supreme Court is free to overturn
unconstitutional federal laws. Here, I agree with Jefferson’s
theory of "concurrent review," whereby each branch (executive,
legislative, judicial) has an equal right to determine the constitutionality
of (federal) government action. Meaning the Supreme Court and the
President can (and should) refuse to endorse or enforce a law it
believes to be unconstitutional; Congressmen should refuse to vote
for laws they believe to be unconstitutional, and so on. This is
in contrast with the now-dominant doctrine of judicial supremacy,
the idea that the Supreme Court is the sole and final arbiter of
the Constitution and constitutionality. (On concurrent review, see
David N. Mayer, The
Constitutional Thought of Thomas Jefferson 131, 259, 263,
269-72 (University Press of Virginia, 1995); William J. Quirk &
R. Randall Bridwell, Judicial
Dictatorship xiv, 10-11, 13 (Transaction Pub., 1995).)
Thus,
for example, if Congress had enacted a law censoring certain speech
or publications, the Supreme Court would have been justified in
overturning it simply on the ground of ultra vires –
that it is an act beyond Congress’ power. Note that the First
Amendment, which was not added until 1791, is irrelevant to
this analysis. With or without the First Amendment, Congress is
not authorized to limit speech or the press. Of course, after the
First Amendment was added in 1791, the Court could have overturned
a federal censorship law as violating this amendment as well. But
this argument would have been redundant and superfluous, since Congress
is nowhere granted the power to censor speech.
Likewise,
a federal statute limiting gun rights would be unconstitutional
since Congress is nowhere empowered to do this. Proponents of gun
rights for this reason should not rely so much on the poorly worded
and much-debated Second
Amendment; even if, as gun opponents charge, the Second Amendment
does not provide an "individual" right to bear arms, still,
Congress is nowhere empowered to regulate or ban the ownership
of weapons. Even if there were no Second Amendment – as there
was not from 1789 to 1791 – federal laws regulating gun ownership
are simply unconstitutional. (Further: even if the Second Amendment
does not protect a right to bear arms, this fact cannot be argued
to show that there is not such a right, since the Ninth
Amendment prohibits such an inference.)
Federal
Judicial Review of State Laws
As
is clear from the preceding discussion, the Constitutional scheme
was not designed to empower the federal government, through
its courts, to strike down repugnant state laws. In fact, this would
require specifically enumerating a power to strike down state laws,
which power is nowhere to be found in the original Constitution.
Nonetheless, modern Constitutional jurisprudence holds that the
federal Supreme Court can strike down state laws that violate most
of the "important" rights specified in the Bill of Rights,
even though the Bill of Rights is really just a listing of limits
on federal powers, which was meant only as an exclamation
point to emphasize that the federal government is one of strictly
limited and enumerated powers. In other words, a constitutional
structure meant to limit federal power and its ability to
interfere with the people and the states, has been used by the federal
government as a warrant to expand its power over the states.
How
did this happen? It is another legacy of Abraham
Lincoln and his illegal War on the South – in particular,
the Fourteenth
Amendment, and the "Incorporation Doctrine," which
holds that the Fourteenth Amendment’s Due Process clause "incorporates"
the "fundamental" rights in the Bill of Rights and "applies"
them to the states. This means that Congress and the federal Courts
are empowered by the Constitution to nullify state laws that violate
these fundamental rights.
Libertarians
should
oppose this view for several reasons. First, the Fourteenth
Amendment was unconstitutionally
ratified. Second, the Due Process clause was never intended
to "incorporate" the rights in the Bill of Rights. It
simply makes no sense that it would have: the Bill of Rights, as
noted above, was simply a safety measure to ensure that the federal
government would not exceed its limited powers. The First Amendment
itself says "Congress shall make no law…". How
could a limitation on Congress’s power be applied to the states?
Moreover, the Courts have had to resort to the ridiculous doctrine
of "substantive due process," as distinct from "procedural
due process." How can due process not be merely procedural?
(Cato Institute legal scholar Roger Pilon agrees
that the Due Process and Equal Protection Clauses of the Fourteenth
Amendment were not intended to provide federal protection for citizens’
fundamental rights; but wrongly, in my view, argues that the Privileges
and Immunities Clause should be used for this purpose instead.)
Third,
the Fourteenth Amendment and the Incorporation Doctrine that it
spawned have eroded the vertical balance of powers between the states
and the central government that was put originally in place so that
the states would serve as checks on central tyranny. With Lincoln’s
War Between the States and the Fourteenth Amendment as construed
by federal judges, that check has been greatly weakened.
In
order for the Court to overturn noxious state laws, it must seize
powers it was not granted. If the federal government is free to
ignore the limiting language of the Constitution and assume powers
not granted to it, our rights are clearly less secure.
Let
us now turn to the recent Supreme Court decisions.
Gay
Sex
If
Congress had enacted a federal law outlawing homosexual sodomy,
the Supreme Court would have been justified in refusing to enforce
the law on the grounds that Congress is simply not empowered to
enact such laws. The right of the Supreme Court to strike down unconstitutional
federal legislation derives from the judicial branch’s co-equal
status under the Constitution and its independent obligation to
abide by the Constitution.
There
is no explicit limitation in the Bill of Rights with regard to laws
concerning sex, but it does not matter, since Congress is not given
the power to outlaw sodomy. To be sure, the Ninth
Amendment does say that the failure to enumerate a right in
the Constitution cannot be construed to mean that the right does
not exist. Certainly, this could be used as a presumption that there
is a right to engage in sodomy that may not be trampled by the federal
government, or to buttress the argument that Congress is not given
the power to regulate sexual interaction. But the essential point
is that no right to sexual conduct needs to be found, since the
Constitution nowhere authorizes such laws in the first place. There
is no need to invent some murky "right of privacy" which
is found in "penumbras"
of "emanations" of the "specific guarantees in
the Bill of Rights," which "emanations" "help
give [the guarantees] life and substance".
However,
as explained above, a state law banning gay sex simply does
not violate the Constitution. The Constitution protects this right
from federal invasion simply by denying to Congress the power to
regulate it. But a state law infringing this right does not contradict
the denial of legislative power to Congress. Accordingly, libertarians
should oppose the decision in Lawrence
v. Texas. While it does overturn a noxious, illegitimate
law, the price is the assumption of unbridled, unconstitutional,
unlimited power by the federal government’s judicial branch.
Moreover,
the decision is completely indefensible, even under existing Constitutional
jurisprudence. Under current Constitutional law, any challenged
state law that restricts liberty is "scrutinized" by the
federal courts, to determine whether the law is consistent with
the rights protected by the Due Process Clause of the Fourteenth
Amendment. As Justice Scalia explains in a brilliant dissent,
laws that limit so-called fundamental rights are given "heightened"
scrutiny. Fundamental rights are those that are "deeply rooted
in this Nation’s history and tradition." However, "All
other liberty interests may be abridged or abrogated pursuant
to a validly enacted state law if that law is rationally related
to a legitimate state interest." In other words, a law
restricting a "fundamental" right will be found unconstitutional
unless "the infringement is narrowly tailored to serve a compelling
state interest." But a law restricting some non-fundamental
right is usually upheld, so long as there is some rational basis
for the law.
The
majority could not with a straight face argue that a right to engage
in homosexual sodomy is one traditionally recognized in this country,
and therefore it does not declare the right in question to be "fundamental."
This means that the law should be subjected only to rational-basis
scrutiny, under which it should no doubt be upheld. Inexplicably,
however, the majority simply engineers the result it wants, without
being able to find a sincere or serious Constitutional basis for
it.
Affirmative
Action
The
gay-sex case rests on the "fundamental rights" analysis
of the Due Process Clause of the Fourteenth Amendment. The affirmative
action cases, by contrast, concern that Amendment’s Equal Protection
Clause (no state may "deny to any person within its jurisdiction
the equal protection of the laws"). The argument is that affirmative
action by state actors such as public universities discriminates
based on race, which violates the equal protection provision.
Now
what is the libertarian take on this? As noted above, the Fourteenth
Amendment was unconstitutionally ratified and is also a bad idea,
since it erodes federalism, a structural limit on federal power.
If the central government is empowered to strike down local laws
that it dislikes, this simply shifts more power to the federal government,
thereby centralizing more and removing structural limits on federal
tyranny.
There
is yet another weakness in the criticism of state affirmative action
policies, one that is usually not recognized by libertarians. In
the Texas sodomy case, at least it is clear that the state law at
issue is unlibertarian. The Texas law clearly violates individual
rights to engage in victimless activities. Of course, this law should
be abolished; the question for the libertarian is whether the federal
government should be, or has been, empowered to do the abolishing.
In
the case of affirmative action practiced by state schools, however,
it is not so clear that anyone’s rights are being violated by the
policy. Now this assertion may seem baffling to many libertarians
who, like conservatives, seem to automatically assume that affirmative
action is abominable. But upon close inspection of the practice
the objections evaporate.
Let
us step back. In the case of criminalizing sodomy, force is used
or threatened against those who have not committed any aggression.
Affirmative action laws that force private businesses to
diversify in their hiring are also clearly unlibertarian. These
laws threaten the property of those who have not committed any aggression.
But
whose rights are violated by affirmative action policies
practiced by public schools? The policy does not threaten the person
or property of anyone. It simply is part of a test that determines
whether or not someone has access to the property. Marginal white
students who do not get admitted because of the policy – are
their rights violated? It would seem that their rights are violated
only if they have a right to attend the university, which is "taken"
as a result of the affirmative action policy. But why do they have
a right to attend a state university? If merely being denied
admission means an applicant’s rights are violated, what about all
the dumb kids who are denied admission? If a 10 year old applies
he will not be admitted. Are his rights violated? If someone from
out of state applies, he has a lower chance of being admitted. So
what? How does this demonstrate any aggression or violation of the
rights of the non-admitted masses?
By
having any admission standards at all, some individuals
or classes of people will be denied the "right" to attend
the university. Clearly it cannot be argued that rights are violated
by virtue of the university having standards for admission.
So what, then, is the argument?
As
best I can tell, libertarians who believe affirmative action policies
are unlibertarian usually base this conclusion on Randian-style
reasoning. Rand believed government was necessary. However, it is
dangerous, because it is the sole, monopolistic wielder of force.
So although individuals have a right to act both "rationally"
and "irrationally," so long as no one’s rights are violated,
government must be held to a stricter standard. In particular, government
may only act "rationally" in wielding force. It does not
have the luxury or discretion to act irrationally. Now all forms
of collectivism, including racism, are irrational. Government, therefore,
may not be racist or collectivist in its policies and decisions.
Accordingly, a government agency such as a state university, may
not use race as one its admission criteria. QED.
But
this argument is unpersuasive. First, the standard for what is "rational"
or "irrational" government policy is nonrigorous. Under
libertarianism, the owner of private property is the one who gets
to decide what to do with it. Ownership is simply the right to control.
Of course, the owner’s own preferences, values, and judgments factor
into his decisions of how he uses the property. But beyond saying
that the owner has the right to control his own property as he sees
fit, how can libertarianism distinguish between "irrational"
and "rational" uses of property? As I have pointed
out elsewhere, the fundamental social and ethical function of
property rights is to prevent interpersonal conflict over scarce
resources. Libertarianism provides no objective way to classify
uses of property as "rational" or "irrational"
(except perhaps with reference to which actions generate profit
and which generate loss, but surely we do not want to say that all
non-profit uses of one’s property is "irrational" or "immoral"
in the Randian sense).
The
problem with public schools is that they are owned by a criminal
agency, and supported by stolen property. Of course they should
be shut down. But given that state universities exist, the question
is simply, How should they be run? Well, if they are going to be
schools, then they must do what private schools do: namely, own
and control facilities, hire teachers, attract students, set admissions
policies, and so forth. I.e., try to run the place, by and large,
as a private owner would.
Would
a private school ever employ affirmative action in its admissions
policies? Apparently so. There seems to be an assumption among hyper-individualist
libertarians that everything should be based on "merit,"
whatever that means. When the liberal points out that rich WASP
"legacy" students get admitted into Ivy League universities
based on their parents’ previous attendance or through political
pull, rather than merit, conservatives and libertarians brush this
off, although it is a perfectly good point. George W. Bush was probably
admitted into Yale not because of merit, but because of his family
connections. And so what? For the libertarian, this poses no problem:
the owner of property can do what he wants with it. A college can
set whatever admissions criteria it wants. It is not surprising
most universities want to use merit as one factor, in order to attract
bright students. It is also not difficult to see why a legacy system
might develop.
As
for affirmative action, it is not necessarily "irrational".
Is it necessarily "irrational" for a university (private
or public) to try to obtain a more racially-diverse student population?
Who knows? What if the trustees of the university believe they can
attract more and/or higher-quality students if they can claim they
are more diverse? What if the trustees simply want to help out historically-disadvantaged
minorities? What is wrong with wanting to give a leg up to minorities?
What is irrational about wanting to work with, employ, or service
one’s own kind? Any of these can be reasons for employing affirmative
action.
Affirmative
action by universities is not irrational. It is simply the exercise
of authority over property rights. The problem with public schools
is that they exist, not that how they decide to control the property
that they have, given that they do exist.
Conclusion
To
sum up, the problem with the gay sex decision is that the Constitution
did not limit the power of states to enact such laws, nor did it
empower the federal government to do anything about it. Further,
the Fourteenth Amendment was illegally ratified, and is a bad idea
to boot. Finally, using the Due Process Clause of the Fourteenth
Amendment in order to strike down a law banning sodomy requires
disingenuous, result-oriented reasoning.
Libertarians
should also disfavor using federal courts to strike down affirmative
action policies of state universities. For one, this would require
the courts to rely on the illegal Fourteenth Amendment and its Equal
Protection Clause. Moreover, unlike a law regulating sexual conduct,
an affirmative action policy of a state university has no victims
(in the libertarian sense). The problem is with the taxation that
funds it, not with the university administrators setting admissions
policies or otherwise using the property as if they own it.
Of
course libertarians should oppose laws criminalizing victimless,
consensual sexual activity. But we should not endorse unconstitutionally
expanding federal power as the means for overturning such laws.
That is like inviting a big mafia into your neighborhood to help
restrain a smaller one.
 As
for affirmative action policies of public universities, the libertarian
should oppose the very existence of such universities, and the taxation
that supports them. However, we should not advocate granting even
more power to an already too-powerful federal government so it can
mandate to the states how to run their own institutions – especially
if the power comes from a wrongheaded and illegally ratified constitutional
amendment.
July
4, 2003
Stephan
Kinsella [send
him mail] is an attorney in Houston. His website is www.StephanKinsella.com.
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