The Squalid 14th Amendment

by Gene Healy

SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. – Fourteenth Amendment to the US Constitution

Political decentralization and individual liberty: the two are intertwined, but the former doesn't guarantee the latter. As Americans discover every day, the government that's closest to you is often in the best position to put the screws to you. How should libertarian political theory deal with the problem of oppression by local sovereigns? In the American context, this question translates to: What should libertarians think of the Fourteenth Amendment?

It's a question without an easy answer. Classical liberals of good faith have found themselves on either side of the issue. Thus, Lord Acton, following the Confederacy's defeat, wrote to Robert E. Lee: "I saw in States' Rights the only availing check upon the absolutism of the sovereign will.... Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization." But by the late 20th century, libertarians have come full circle on the question of states' rights and the Fourteenth Amendment. Today, the libertarian orthodoxy holds that the Fourteenth Amendment perfected the Framers' design, fulfilling the promise of the Declaration of Independence. Further, the promoters of the new orthodoxy urge that the amendment be given robust application against the states, in order to secure our natural rights to life, liberty and property.

On this question, no one is more orthodox than Roger Pilon, Director of the Cato Institute's Center for Constitutional Studies. In him, Cato has an able advocate, one who provides a valuable counterweight to a New Right jurisprudence that overvalues majoritarianism and views the judicial branch as the gravest threat to our liberties. Unfortunately, Pilon's case for the Fourteenth Amendment is deeply flawed. His case for the political legitimacy of the amendment requires him to ignore the circumstances of its inception; and his case for the amendment's efficacy as a means of securing individual liberty depends on a Panglossian view of judges and federal supremacy. The defects in Pilon's arguments should prompt libertarians to reexamine the new orthodoxy on the Fourteenth Amendment.

Ratification "at the Point of the Bayonet"

Throughout Roger Pilon's published work, the watchword is "consent." We come out of the state of nature, so the myth runs, the better to secure our natural rights. The government we institute derives its just powers from the consent of the governed. "That, and only that, is the source of their legitimacy," Pilon tells us in Economic Liberties and the Judiciary. Though Pilon concedes that unanimous consent is a fiction, he suggests that the Framers did a tolerably good job in requiring broad consent for the adoption of our Constitution and in the procedures for its amendment. In a recent Cato Institute Policy Analysis paper, "Reviving the Privileges or Immunities Clause," Pilon and coauthor Kimberly C. Shankman write: "the supermajoritarian consent that was required for constitutional ratification and amendment...served, as far as practically possible, to legitimately institute government, authorize its powers, and change those powers."

Quite properly, given his emphasis on consent and legitimacy, Pilon has repeatedly excoriated the political branches for arrogating to themselves powers that the people never delegated through Article V's amendment process. In their Cato paper, Pilon and Shankman apply similar scorn to the judicial branch for ignoring the Fourteenth Amendment. They recount the story of the 1873 Slaughterhouse Cases, which "effectively eviscerated" that amendment's Privileges or Immunities Clause. The authors spare no venom in decrying "judicial resistance to popular will," which thwarted "the course that...the American people had meant the Court to follow."

But somewhere along the way, the true history of the Fourteenth Amendment's adoption has disappeared down a memory hole. When one reviews that history, it becomes clear why Pilon and Shankman prefer to discuss the amendment in the abstract, antiseptic terms of social contract theory. An "immaculate conception" account of ratification suits their argument better: the real story's a little too dirty for the kids.

We return to 1865. As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V's requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article's provision that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate."

Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: "the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet."

President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people." In his veto message, he stated that "such a power ha[d] not been wielded by any Monarch in England for more than five hundred years." Sounding for all the world like Roger Pilon, Johnson asked, "Have we the power to establish and carry into execution a measure like this?" and answered, "Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes."

The rump Republican Congress overrode Johnson's veto and enacted statutes that shrank both the Supreme Court's appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you'll excuse the phrasing-- "passed into law."

The squalid history of the Fourteenth Amendment poses serious problems for Roger Pilon. Pilon's critique of the New Deal has always included withering scorn for FDR's extraconstitutional thuggery, in the form of the infamous Court-packing scheme. As Pilon tells the story, FDR muscled the Court into approving radical constitutional changes that could be enacted only by means of Article V's amendment process. The people never delegated to the federal government the powers it took for itself during the New Deal. But neither did they delegate to the federal goverment the powers it seized in 1868. Any New Deal aficionado who knows his history is entitled to wonder about Pilon's selective indignation: does he invoke the principles of consent and legitimacy only against constitutional changes he dislikes?

The Fourteenth Amendment in Theory and Practice

Ancient history, you say. The Fourteenth Amendment is in everybody's Pocket Constitution, and it's not going anywhere. Fair enough, but the above account shows that the amendment cannot be justified with a bedtime story about Lockean first principles. If libertarians are to embrace the Fourteenth Amendment, they'll have to find pragmatic reasons to do so. The argument must be that the amendment has been, and will continue to be, an effective weapon in the struggle for individual liberty. But even here, the case is not nearly as strong as Roger Pilon believes it to be.

What is strong is Pilon's account of the original understanding of the Fourteenth Amendment, and particularly the amendment's "Privileges or Immunities" clause. As he recounts in the Cato Handbook for the 106th Congress and elsewhere, the Civil Rights Act of 1866, which the amendment was designed to constitutionalize, gives us a good idea of the kind of privileges and immunities the drafters wanted to secure. The rights that act protected from state infringement were "basic common law rights," such as "the right to make and enforce contracts...to purchase, lease, sell, hold, and convey real personal property." As Pilon has it, the clause protects a substantive core of natural rights from state infringement. Thus, Lochner v. New York, the much-maligned 1905 case in which the Supreme Court struck down a New York statute setting maximum hours for bakery workers, was closer to the original understanding of the Fourteenth Amendment than much that has come since. [Though with the Privileges or Immunities Clause 'effectively eviscerated, the Lochner Court was forced to rest its decision on the amendment's Due Process Clause, which, as Pilon notes, provided a weaker foundation.]

Properly understood, then, the amendment doesn't give judges "power"; rather, it enlarges the sphere of the judicial "veto," allowing judges to strike down state and local laws that infringe on natural rights. The Slaughterhouse majority warned that a broad interpretation of the amendment would make the judiciary "a perpetual censor upon all legislation of the States." To which a good libertarian can answer, "So what?" One could riffle through most state and municipal codes, tearing out hundreds of pages at random, and leave the law in better shape than one found it. As Pilon argues in a 1993 Notre Dame Law Review article, it is the Court's job to be a "perpetual censor," to ensure that legislative enactments "both proceed from the authority granted them and are consistent with rights restraining them." The Fourteenth Amendment merely provides "an additional layer of protection" for rights.

Threats from the Least Dangerous Branch

But in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.

This is nowhere clearer than in the line of cases thought to represent the Fourteenth Amendment's finest hour: Brown v. Board of Education and its progeny. Brown has iconic status on the Left and much of the Right, because many commentators see it as ending de jure segregation and furthering the first Justice Harlan's noble ideal of a "color-blind" Constitution.

But this is only part of Brown's story. Equality before the law shifted effortlessly into forced equality of outcome in the space of a few short years. State resistance, massive or otherwise, was useless. In North Carolina Board of Education v. Swann, the Court struck down a state statute providing that no student would be compelled to attend any school for the purpose of improving racial balance in the schools. In Washington v. Seattle School District, the Court did the same with a statewide voter initiative preventing mandatory busing for purposes of integration. In U.S. v. Yonkers, a federal judge held the Yonkers city government in contempt, ordering it to integrate its schools by building scattersite public housing in predominantly white areas. This line of cases reached its coercive nadir in Missouri v. Jenkins, when the Supreme Court held that, to further integration, a federal judge could order a local government to increase property taxes, even though the increase was barred by the state constitution.

"Well, it serves you right for setting up government schools in the first place," say we libertarians. But wait. Faced with a desegregation order in the early '60s, Prince Edward County, Virginia, refused to assess school taxes and instead shut down its public education system. In 1964's Griffin v. County School Board, the Court ordered Prince Edward County to levy the taxes and reopen its schools. In 1996, when the Court ended male-only admissions at the Virginia Military Institute, one of the obstacles to VMI's privatization was a possible Griffin-based challenge from the Justice Department.

Thus, in the wake of Brown, federal courts enforcing the Fourteenth Amendment have seized vast coercive powers, state resistance to taxation and social engineering notwithstanding. To what benefit? None, actually. As the editors of a leading--and, it should go without saying, leftist--constitutional law text admit, there is "no proof . . . that [integration]has aided blacks in any demonstrable fashion." (Stone, Seidman, Sunstein, and Tushnet; Constitutional Law; 2d Ed. Little, Brown, and Co.; 1991 pps 530-31) It's true that in recent years, the federal courts have cooled somewhat to desegregation lawsuits. It's also true that, thanks to Missouri v. Jenkins, we're no longer protected from taxation by unelected, life- tenured federal judges. The precedent remains on the books, waiting for the next egalitarian jihad. In its 1868 Resolution deratifying the Fourteenth Amendment, New Jersey charged that the amendment would work a radical "enlarge[ment] of the judicial power." In fact, New Jersey suspected that the amendment itself was "made vague for the purpose of facilitating encroachment on the lives, liberties, and property of the people." Maybe the Garden State was on to something.

If You Liked the Commerce Power. . .

In addition to the de facto grant of legislative and executive power to judges, the Fourteenth Amendment includes a de jure grant of power to Congress. Section Five of the amendment reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Roger Pilon argues that Congress should routinely invoke Section Five to strike down state violations of individual rights. In the Cato Handbook for the 105th Congress, he declares that Congress has "often failed in its responsibility under the Fourteenth Amendment to police the states. Here is an area where federal regulation has been, if anything, too restrained."

It's unlikely that Pilon fully recognizes the implications of this position. In the passage immediately preceding the above, he rails against burgeoning federalization of crimes, which has taken place because of willful misinterpretation of Congress's authority to regulate interstate commerce. But if Congress can step in under the Fourteenth Amendment to secure basic individual rights when states "fail to secure them against private violations," as Pilon assures us Congress can, then Pilon has opened the door to a vast federal police power. Say goodbye to the tentative restriction of federal authority provided when the Court struck down the Gun Free School Zones Act in U.S. v. Lopez. Does carjacking violate our rights to liberty and property? There's your authority for the Federal Carjacking Statute. Do outlier states provide women with insufficient protection against domestic abuse? Quite possibly, so make way for the Violence against Women Act. If you like the "substantial effects" test for invocation of the Commerce Power, then wait until you see what Congress can do with matters that "substantially affect" liberty. [In fact, the Violence Against Women Act VAWA) is based in part on just such a theory of Congress's power under Section 5. Several district courts have upheld the statute. But on March 5, the Fourth Circuit Court of Appeals emphatically rejected VAWA, and with it the theory that Congress can use the Fourteenth Amendment to federalize crimes when, as Roger Pilon puts it, "State measures prove inadequate." See Brzonkala v. Virginia Polytechnic 1999 WL 111891 pps 40-55.]

In the midst of the recent furor over black church burnings, Congress passed the Church Arson Prevention Act. In his Cato Handbook chapter and a 1996 Washington Post op-ed, Pilon chides Congress for relying on the Commerce Clause in enacting the anti-arson statute. Instead, he tells us, Congress should have invoked its authority under Section Five of the Fourteenth Amendment. "If the facts had warranted it," he writes, Congress would have had "ample authority" under Section Five to pass the Church Arson Prevention Act. Reading between the lines, I surmise that he doubts that the facts warranted it. Indeed, there's every reason to believe that they didn't, as research by Michael Fumento and others later suggested. But we operate with a real-world Congress, susceptible to political pressure, and a real-world judiciary reluctant to make what it sees as political judgments. If the only check against federalization of crime is to be found in the judiciary's willingness to overturn congressional findings of fact, then that's no check at all.

To go before Congress and the readership of the Washington Post and offer up an underused federal power is to stride onto enemy turf and proclaim, "Forget about the pipe you've been beating us with. Try this chain." The logic of public choice applies to Section Five as well as it does to any other enumerated power. The constituency for commonlaw liberties is broad and diffuse; the constitutuencies for federal coercion are discrete and concentrated. They'll win the fight.

They're already winning. Consider what Congress actually does with Section Five of the Fourteenth Amendment. That provision is most often invoked in the service of modern notions of equality, providing private rights of action against discrimination. Among the statutes upheld under Section Five are the speech-restrictive Freedom of Access to (Abortion) Clinic Entrances Act, the Americans with Disabilities Act, the sex discrimination provisions of Title IX of the Civil Rights Act, and the Age Discrimination in Employment Act. With regard to the latter three, Section Five allows Congress to abrogate state governments' Eleventh Amendment immunity from suit in federal courts. Congress and the courts have used Section Five to allow extortionate lawsuits against state governments, agencies, and schools.

It's true that Congress generally does not invoke Section Five when it regulates private individuals. This is the case for two reasons: 1) Congress already has the power to do almost anything it wants under current Commerce Clause jurisprudence; and 2) current Section Five jurisprudence limits Congress to regulating "state action." But this can change. The "state action" doctrine has proved a rather porous barrier to Congress's power to regulate private actors. The first Justice Harlan, whom Pilon and Shankman seem to view as some kind of Lockean fellow traveller, opposed the doctrine as an unreasonable limitation on Congress's power to regulate businesspeople; so too did six members of the Warren Court at one point in the 1960s. Though the state action doctrine has remained nominally intact, the Court has found "state action" in situations such as enforcement of private, racially restrictive covenants; enforcement of racially neutral trespass statutes against lunch counter sit-ins; and racial discrimination by private businessmen leasing property from the state. The doctrine is eminently capable of giving way to a general regulatory power. If the Supreme Court gets serious about restraining congressional abuses of the Commerce Power, look for Congress to use Section Five to reenact and extend modern antidiscrimination laws. And look for the Court to cave.

Pilon recognizes that the Fourteenth Amendment carries with it a potential for abuse; but his solution is profoundly unsatisfying. In recent Congressional testimony, he stated that "the Fourteenth Amendment has itself been misused, both by Congress and by the courts. But that is no reason to ignore it. Rather, it is a reason to correct the misuses." According to Pilon, the answer to bad judging is better judges and better judging. To get where we want to go, we need to appoint judges who understand the Constitution and "the classical theory of rights" that stands behind it. Judges need to get in touch with the "Higher Law background" of American constitutionalism.

Well, I've spent the past three years in law school surrounded by future federal judges. Here a passion for levelling infects the classroom discussion, and the idea of natural rights has the intellectual status of phrenology and creation science. Students see in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines. They do not care what the amendment actually means. In this context, Pilon's solution sounds positively Lennonist: "Imagine all the judges/Applyin' Higher Law..."

Dreams and Nightmares

I may say that Roger Pilon's a dreamer, but I don't have a more practical answer. Nor have I been entirely fair to the Fourteenth Amendment. In the areas of free speech and criminal procedure, for example, the amendment has been the source of some of the Court's proudest moments, some of the greatest vindications of liberty in American constitutional law. Given a regime of federal supremacy, perhaps the Fourteenth Amendment can help us check local tyranny in some areas.

But libertarians, of all people, should recognize that a Congress and a Court that are powerful enough to give us everything we want are powerful enough to take it all away. Individual liberty competes with the mirage of social justice in the hearts and minds of the governing elite. The Fourteenth Amendment can further the forcible enactment of either vision.

Libertarians are reluctant to embrace "states' rights," an admittedly unfortunate term. But the independence of the states once served as a check on coercive social experimentation. From this perspective, Justice Brandeis's rationale for federalism, that individual states can serve as "laboratories of democracy," gets it precisely backwards. The point of decentralization is that the smaller the laboratory, the easier it is for us rats to escape the Skinner Box.

That battle was perhaps lost after Appomatox, in what Roger Pilon grotesquely mischaracterizes as a "war to secure liberty." I don't expect Pilon to consign himself to irrelevancy by advocating the dissolution of the Union. But I would like him to temper his fervor for the Fourteenth Amendment with a recognition of the difficulties posed by federal supremacy. And I'd like libertarian followers of the new orthodoxy to consider whether Pilon's idea, that Congress and the Court can serve as guarantors of our liberty, amounts to the fond hope that the wolf at our door can be housebroken.

Our common goal is the night-watchman state. If ever again we approach that ideal, will it be with the help of a federal government that is the benevolent master of all it surveys? Or will we get there by way of radical decentralization with little or no federal oversight? These may be loaded questions, but they ought at least to be seriously considered. It's my view that if we can ever rid ourselves of federal supremacy--of what Lord Acton called "the absolutism of the sovereign will"--losing the Fourteenth Amendment will be no sacrifice at all.

If the dream of independent states seems absurdly unrealistic, then consider a nightmare. Consider Professor Catharine A. MacKinnon's Fourteenth Amendment. In her book Only Words, MacKinnon tells us that the First and the Fourteenth Amendments conflict. She writes that "the Reconstruction Amendments...move[d] the ground under expressive freedom, setting new limits and mandating new extensions, perhaps even demanding reconstruction of the speech right itself." When this is properly understood, the state will be able to censor the speech of "dominant" classes, and forcibly reconstruct society to ensure "equal access to speech." Indeed, "the state will have as great a role in providing relief from injury to equality through speech and in giving equal access to speech as it now has in disciplining its power to intervene in that speech that manages to get itself expressed." Those who consider MacKinnon's words the irrelevant musings of a tenured law professor are unfamiliar with her successes in the area of sexual harassment law, and unfamiliar with the cachet her ideas have in the legal academy. Given federal supremacy and the vast powers the Fourteenth Amendment confers on Congress and the courts, it matters little whether Roger Pilon is right about the amendment's original meaning. In the fight between Pilon and MacKinnon, on the battleground of American legal culture, I root for Pilon. But as a betting man, I'd place my chips on MacKinnon.

Gene Healy is a recent graduate of the University of Chicago Law School. This article was first published in the August 1999 issue of Liberty Magazine.