William Peterson, adjunct scholar of the Mises Institute and Heritage Foundation, has a Washington Times book review about Randy Barnett’s latest book, Restoring the Lost Constitution: The Presumption of Liberty.
Some libertarians may have difficulty with Barnett’s views about the 14th Amendment. Peterson sums up, “Also, the 14th Amendment requires that the privileges or immunities of citizens shall not be abridged. So it sets tight textual limits on the exercise of the states’ police power — limits not always observed by a pliable Supreme Court.”
Imagine–a libertarian arguing that the feds have not interfered enough with the states. To the contrary–federal courts keep dreaming up more and more restrictions on states based on non-existent powers granted to the feds in the Bill of Rights/14th amendment. The privileges or immunities clause does not set “tight” limits–much less textual–on the exercise of the states’ police power.Consider: the selective incorporation doctrine says “fundamental” rights in the first 8 amendments of the Bill of Rights, are “incorporated” as against the states, via “substantive due process” (a stupid concept) of the 14th. But if this is true, why would due process be listed separately in the 14th amendment? After all, it’s in the 5th Amendment already, and is certaintly “fundamental,” so it would already be incorporated into the 14th, via the due process clause and selective incorporation, or, as Barnett would have it, via the privileges or immunities clause.
If this clause meant rights in general, why did it not even use the word “rights”? If the text is unclear, and if any “rights” to be found in that text implicitly grant power to the feds (the power to tell the states what not to do), and if the original presumption was against federal power unless clearly granted in the constitution–then surely, any ambiguity in those words should be construed against endowing the feds with more power, which means against the fed courts having the power to strike down “bad” state laws. The P&I clause only prevents the states from doing a narrow range of things; it does not apply all the prohibitions of the Bill of Rights to the states.
Just because libertarians think states “should not” “be allowed” to violate natural rights, simply does not mean that the Bill of Rights, originally meant to add further limits on the power of the feds, instead empowers the feds to have jurisdiction over the states. In fact, this greatly weakens the federalist system which was itself a structural feature designed to protect natural rights from being infringed by a federal government grown tyrannical and limitless. Barnett, author of a book entitled The Structure of Liberty (my review), should know this…
4:38 pm on April 20, 2004
