Barnett and the Fourteenth Amendment

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In a recent article, I criticized the recent Supreme Court case overturning Texas’ law against homosexual sodomy. Randy Barnett, another libertarian lawyer, has written in favor of the ruling.

I plan to post an article before too long on LRC further discussing the Fourteenth Amendment and some of Barnett’s views, but in the meantime, one Larry Ruane called to my attention a couple of articles by Colorado libertarian Ari Armstrong. The first praised Barnett’s article; the second tries to find common ground between Barnett’s views and mine.

For now let me mention a couple things.Armstrong recognizes that I am concerned with limiting federal power. He believes that Barnett has accomplished this with his “presumption of liberty.” Writes Armstrong, “Barnett achieves what Kinsella is looking for — the limitation of the federal government to those few powers specified in Article I, Section 8. […] Whether the Fourteenth Amendment applies the ‘presumption of liberty’ to matters of state governments as reviewed by the U.S. Supreme Court is another matter entirely. Barnett seems to assume the Fourteenth Amendment does strongly protect citizens from state-level tyranny, but the matter is not central to his case. It’s possible to maintain the ‘presumption of liberty’ at the federal level yet argue the Fourteenth Amendment should be weak.” This is similar to my view, although I would prefer a “presumption of unconstitutionality” to a presumption of liberty, but more on this when I have time to get around to it.

Armstrong writes, “I think it’s possible to have the best of both worlds: a federal government with the power to check the tyranny of state governments, but with little power to do anything else.” In other words, Armstrong agrees the federal government is dangerous, and is therefore also leery, as I am, of giving it more power, but he thinks maybe we can limit the grant of power so that the feds have the power to veto bad state laws, but not the power to trample rights or balloon in size.

A couple of responses: first, I am not sure why he thinks this is possible. The Framers thought the written Constitution would limit federal tyranny; clearly it has not. Why Armstrong has such faith in paper documents is not clear. Second, even if it were possible to design a federal government having only the power to veto, I am not sure why Armstrong thinks this is relevant to the debate about the Fourteenth Amendment–our Constitution is not written this way. It empower the feds, via the Fourteenth Amendment, to interfere with states. I think this power is rather restricted; Barnett seems to think it sweeping. However, however broad this power is, it is not limited merely to vetoing bad state laws. It also permits Congress to legislate.

Armstrong is correct that I did not go into much detail, in my previous article, about why the Privileges or Immunities Clause of the Fourteenth Amendment, does not incorporate and apply against the states, the various rights listed in the Bill of Rights. Some libertarians such as Barnett and Roger Pilon, believe it does; I do not. Let me mention here a couple of things. First, the word “rights” does not appear in the murky expression “privileges or immunities”. Much less is the Bill of Rights mentioned. Given this, it is certainly not perfectly clear that the Privileges or Immunities clause meant to incorporate fundamental rights and apply them against the states. It is certainly arguable that much less was intended; the work of Raoul Berger–much derided by incorporationists from Akhil Reed Amar to Michael Kent Curtis to Roger Pilon and Randy Barnett–shows as much. But in a Constitutional system in which the central government was feared and states’ rights were jealously guarded, one would expect any radical change in this system–and the Fourteenth Amendment as interpreted by Barnett, Curtis, et al. surely imposes radical changes on federalism–to be made explicitly, clearly, expressly, in writing.

It seems to be to be almost self-evident that the words “privileges or immunities” do not clearly claim all the rights in the Bill of Rights. To my mind, the most likely meaning of those words–as understood by most of the ratifiers in 1866–was a narrow set of rights having to do with national citizenship only, but not the full panoply of natural rights or those listed in the first eight amendments of the Bill of Rights. In any event, it is clearly arguable that the privilieges or immunities clause had a narrow meaning, just as it is arguable that it had a broader meaning. Given that its meaning is arguable–i.e., not perfectly clear–then why would it serve as an effective and legitimate substantial grant of power to the feds and a fundamental change to the federalist system constitutional protected in 1789? If the Constitution said, “Congress shall have power to stop gnarly actions,” would libertarians argue that this unclear, vague wording justifies a massive legislative power grab by Congress, or would they say that this wording is not sufficient precise to give Congress wide powers?

A final thought for now. If Barnett et al. are right that the Privileges or Immunities clause of the Fourteenth Amendment was originally meant and understood to incorporate rights as expresssed in the Bill of Rights, then they are indeed correct that Lawrence v. Texas was properly decided. However, ask yourself this: if you had asked a typical selection of Congresscritters in 1866, “Does the proposed Fourteenth Amendment give a federal judge the right and power to strike down a state criminal law outlawing sodomy between men?” — what do you think their answer would be? I submit that to ask the question is to answer it. Of course, they would nearly unanimously shout NO! Which of course implies that the original understanding of the Fourteenth Amendment was not to grant such sweeping powers to the feds.

3:30 pm on August 25, 2003