Libertarian Naivete on the Fourteenth Amendment

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Over at Reason, Jacob Sullum says that the Fourteenth Amendment’s Privileges or Immunities Clause “holds great promise as a bulwark against arbitrary interference with economic freedom.”

“Great promise”? This thing has been around for almost 150 years, and it has never been used to protect economic liberty — the Supreme Court made sure of that with the Slaughter-House Cases in 1873. Yet the libertarian legal activists continue to hold out hope that they, at last, will make judges see the light.

How long can something be “promising,” anyway? It would have made some sense for someone to say (naively) that George W. Bush had “promise” to be a relatively good president when he was elected; it would have made no sense to say this in 2006.

Of course, even if the libertarian legal activists did succeed in reviving the Privileges or Immunities Clause, they would have a new problem: convincing federal judges not to abuse their newfound powers over the states by forcing states to protect positive “privileges” such as a right to welfare, a right to expenditure of tax dollars, and who knows what else.

I know centralist libertarians mean well, but I respectfully submit that any strategy that relies on enlightened federal officials declining to abuse their power never held much promise at all.

2:51 pm on October 7, 2009