Roger Pilon and the 14th Amendment

by Gene Healy

I thank Roger Pilon for his cordial and measured response to my tirade in last August’s Liberty. To a considerable extent, we agree on matters of principle. Alas, in the application of principle to reality, a vast gulf separates us.

Let’s begin where we agree. Ideally, political obligation is founded on consent. Government everywhere lacks this foundation. Lysander Spooner was right in this much, at least: that the kind of "consent" that undergirds our Constitution differs markedly from the kind that binds us in normal contractual relations.

Real consent—unanimous and formally expressed as Spooner would have required—would make government as we know it impossible. However appealing that may sound, as Pilon notes, we’re not likely to see this state of affairs in any of our lifetimes. And so we search for second-best solutions.

Constitutional "consent," expressed via Article V’s amendment process, is one such solution, albeit quite distant from Spoonerian consent. It requires some people (those in state legislatures or ratifying conventions) to consent for others, including those without the vote, those who oppose the amendment, those not yet living who will be governed by it. Where the legislators or conventioneers got the right to consent for the rest of us remains to be convincingly explained.

But still, constitutional consent has a great deal to be said for it. In the political theory that informs the Constitution, power rests with the people, until that power is ceded by certain of their number through the amendment process. Getting two-thirds of Congress and three-fourths of the States to agree to an amendment is by no means easily accomplished. Thus, if we take Article V seriously, it requires a substantial degree of social accord to delegate any new powers to the federal government. This puts the presumption where it ought to be: against centralized power.

In a Cato Policy Report essay entitled "On the First Principles of Federalism," Pilon cogently describes that presumption, and the philosophy undergirding our Constitutional order: "Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally—through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim. What the Tenth Amendment says, in a nutshell, is this: if a power has not been delegated to the federal government, that government simply does not have it.

"Well said. Thus far, Pilon and I agree: contractual consent where possible. Where such consent is not possible, then constitutional consent via the Article V amendment process, as a second line of defense. The Article V process may not always produce just results, or good amendments, but to the extent that federal powers can be legitimate, they must arise through that process.

I’d stop here, but in his response to my Liberty article, Pilon goes further. Contradicting the fine sentiments quoted above, he holds that, on occasion, when extraordinary historical circumstances present themselves and the federal government acts in the name of our natural rights, it can acquire powers never delegated to it constitutionally. Despite his protestations to the contrary, Pilon thus embraces a modified version of what is known in legal academia as "the Ackerman thesis."

Consent and Ackermania

Pilon chides Yale’s Bruce Ackerman for his thesis that the Constitution can be amended by extraconstitutional means. Professor Ackerman argues that, in unique historical circumstances, there arise "constitutional moment[s]" whereby popular support for new federal powers obviates the need to amend the Constitution via the Article V procedure. Ackerman gives two main examples of where this process occurred: one is the New Deal. The other, of course, is the Fourteenth Amendment.

Roger Pilon reviles the first, embraces the second, and denies the charge of "elective indignation" about abuse of constitutional process. He gives two reasons. First, Pilon argues that with the Fourteenth Amendment’s ratification, though there were procedural flaws,"under extraordinary circumstances, the Reconstruction Congress took significant steps to approximate a normal ratification process." By contrast,"FDR never even tried to amend the Constitution. He merely intimidated the Court, which then capitulated to his will, without even a pretense at amendment."

I suppose there is a difference there, but it seems to me largely an aesthetic one. It’s the sort of sensibility that might lead one to prefer a Soviet show trial to a summary execution, as the former at least pays homage to the idea of the rule of law. For my part, I’d prefer force to present itself as force, rather than cloaking itself in the trappings of legal process.

Besides, insofar as the touchstone of the amendment procedure is "the consent it is designed to demonstrate," as Pilon suggests, then the Fourteenth Amendment never "came close." To the extent the Article V process occurred, the amendment was twice rejected: once when the Southern states voted it down, and again when New Jersey and Ohio rescinded their ratifications. It’s true that FDR didn¹¹t play by the book either, but let’s put things in perspective. FDR’s abuse consisted of proposing legislation that violated the spirit of the Constitution’s independent judiciary. The Radical Republicans’ abuse consisted of securing "assent" to a constitutional amendment by means of a military dictatorship. At least a New Dealer can argue that, given the popularity of New Deal programs, had FDR taken his chances with Article V, he might well have gotten an amendment. We know to a moral certainty that the Radical Republicans wouldn’t have: they tried and failed.

From a Moral "Ought," to a Constitutional "Is"

But what I find most intriguing is Pilon’s second reason for distinguishing Radical Republican thuggery from the Rooseveltian variety. That reason, he says, goes to "the merits of the matter": "Quite simply, the Reconstruction Congress got it right, substantively, whereas FDR got it very wrong." Which raises a host of questions: when, exactly, does "getting it right" trump constitutional processes? How far will "the merits of the matter"take us? Can we go further than "ram[ming] through" amendments that are "right," as with the Fourteenth? Can we later take those amendments a little (or a lot) farther than text and history alone would justify, bending the law for the higher good of individual liberty? Can we even ignore amendments legitimately ratified, if those amendments "get it wrong"? Early on in his response, Pilon writes that "we are likely to lose the Fourteenth Amendment in its fullest sense only by [a] subsequent amendment" that repeals it. Let’s say we did. In Pilon’s worldview, why should Congress and the Court obey the repealing amendment?

Interesting questions all. The answers to some of them can be gleaned from Pilon’s response in this issue of Liberty. In his "Defense of the Fourteenth Amendment," Pilon makes it plain that he approves of the Reconstruction Act of 1867, which made the amendment possible. That act, which was passed during peacetime, two years after Lee’s surrender at Appomatox Courthouse, carved the South into five military districts under martial law. It did so without reference to an enumerated power that could plausibly support it, and in direct violation of the Constitution’s guarantees of trial by jury and habeas corpus. How does Pilon square his support for the Reconstruction Act of 1867 with the stated goal of Cato’s Center for Constitutional Studies: "to revive the idea that the Constitution authorizes a government of delegated, enumerated, and thuslimited powers, the exercise of which must be further restrained by our rights, both enumerated and unenumerated"? The "merits of the matter" must take us quite far indeed.

The point here is not to "re-fight the Civil War," to engage in Southern revanchism, nor in any way to minimize the abomination of human slavery or the repugnance of the postwar Black Codes. The point is that violations of rights, however egregious, do not give rise to federal powers absent a constitutional delegation of authority. To hold otherwise is to repudiate constitutionalism. Say it ain’t so, Roger.

Judges and Justice

Roger Pilon’s treatment of the Reconstruction Act of 1867 and the Fourteenth Amendment suggest, I think, that he’s willing to let moral theory trump constitutionalism. But whether I’m right or wrong about that, the larger issue raised by our debate is whether the Fourteenth Amendment gives the federal courts "vast power" to enact their own moral theories.

Pilon is somewhat underwhelmed by my parade of horrible Fourteenth Amendment decisions. He notes that "almost every example on it involves the hopelessly confused area of discrimination—and racial discrimination at that." But in our race and gender-obsessed country, that should be little comfort. One might just as well downplay post-WWII British socialism by pointing out that it involved issues intertwined with class.

I think it’s significant that the centerpiece of Fourteenth Amendment jurisprudence—the first line of cases one reads when studying the amendment in law school Brown v. Board of Education’s coercive, centralizing progeny, federal judges have taken to running school districts like conquered provinces, ordering new construction, tax increases, and shoveling students around like human concrete. Pilon says, in this regard, that "courts are leading us out of the mess that earlier courts led us into." They’re sure taking their time about it. November 8th’s Washington Post reports that, although 40-odd school districts have been released from court supervision since Brown v. Board, some 500 more districts in 210 lawsuits remain under federal court orders.

But Pilon is right that things could have gone much worse. As George Mason University law professor David Bernstein—himself a supporter of a "strong" Fourteenth Amendment—noted in a Cato Policy Analysis published by Pilon’s own department: "During the Warren Court era, liberal legal scholars hoped that the Supreme Court would even find a right to a minimum income in the Fourteenth Amendment. Had it not been for the Nixon administration’s appointment of several new, more conservative justices, the Supreme Court might very well have entrenched the American welfare state in the morass of modern constitutional law.

"Having narrowly avoided catastrophe, it seems to me we ought to do more than exclaim,"Whew! That was a close one!" We ought to pause for reflection before charging again to the edge of the cliff. But for Pilon, it’s full speed ahead. The Privileges or Immunities Clause is, he thinks, the sword in the stone that, once freed, can be used to strike down meddlesome state and local laws that inhibit economic and personal freedom. But surely the Left will be eager to wield that sword, using it as a weapon for social engineering and redistribution. Indeed, when the Court dusted off the clause last term in Saenz v. Roe, it was not to vindicate economic liberty, but rather to frustrate welfare reform in California. As Justice Thomas noted in his dissent, the majority’s decision in Saenz raises "the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the predilections of those who happen at the time to be Members of this Court."

Congress and Crime

Judicial abuses of Fourteenth Amendment authority are only half of the story. In my August article, I suggested that congressional abuses of the Fourteenth Amendment—actual and potential—are equally disturbing.

In his response, when Pilon turns to congressional enforcement of the Fourteenth Amendment, he suggests that I’ve overstated certain of his views. Specifically, he denies arguing that Congress should routinely invoke Section Five of the Fourteenth Amendment to strike down state violations of individual rights. It is possible that I’ve mischaracterized Pilon’s position here. I based my assertion in part on congressional testimony Pilon gave on July 20, 1995, in which heargued that Congress has the power "to negate state actions that deny citizens the privileges and immunities of citizens of the United States." Since Pilon views our privileges and immunities as coextensive with our natural rights, and since states violate our natural rights routinely, I thought he was arguing for a good deal of congressional involvement in regulating state-level regulators. I think this is a monumentally bad idea (who regulates the regulators that regulate the regulators?).¹ If Pilon opposes using Section Five in this way, I’m glad to hear it, and I apologize for attributing to him views he doesn’t hold.

But, on the issue of federalization of crime, I confess I don’t understand Pilon’s position. If, as Pilon writes in his response,"federalization of crime is never authorized under Section Five," then why did he write, in Cato’s Handbook for the 105th Congress, that "if the facts had warranted it, the Church Arson Prevention Act of 1996 might have been authorized not on commerce clause grounds, but on Fourteenth Amendment grounds"? The Act in question federalized the crime of church-burning. As Rep. Henry Hyde explained upon introducing the measure: "this legislation will give Federal authorities the tools necessary to prosecute and bring to justice people who burn, desecrate, or otherwise damage religious property." If Section Five does not authorize the creation of federal crimes, then it could in no wise authorize the passage of the Church Arson Prevention Act.

State Action and Inaction

Pilon’s discussion of the Church Arson Prevention Act highlights some of the problems posed by the state action doctrine: that imperfectly honored tenet of Fourteenth Amendment jurisprudence which holds that the amendment only allows regulation of state actors. What freedom we’ve enjoyed from unbridled judicial and congressional regulation under the Fourteenth is due to the state action doctrine. But Pilon wants to repeal the doctrine. In his "Defense of the FourteenthAmendment," Pilon writes: "it is important to notice that the amendment protects not against private but against state action or omission." (Emphasis added).

Of course, protecting against state "omission" is equivalent to protecting against private action. When the Fourth Circuit Court of Appeals held that Congress lacked the authority under the Fourteenth Amendment to enact the Violence Against Women Act, it based its opinion largely on the state action doctrine.

If, when the Supreme Court hears the case this term, it adopts Roger Pilon’s theory that Congress has the authority to "protect [citizens] against state. . . omission[s]," then the floodgates are open for a deluge of federal hate crimes laws. Worse still, if it is legitimate for Congress to legislate directly against private violence—like a church burning—in the absence of affirmative state action, then why isn’t it legimate to legislate against private racial discrimination? If the state action requirement is gone, then the public-private distinction is gone, and discriminatory hiring at Denny’s is as open to regulation as discriminatory hiring of cops.

Pilon would doubtless answer that we have a right to be protected from violence, but not from other people’s refusal to associate with us. I couldn’t agree more. But the Supreme Court has not often understood these subtleties of classical liberal rights theory. Consider, for example, Reitman v. Mulkey, in which the Court struck down California’s Proposition 14. That pro-freedom initiative, enacted by California¹¹s voters, forbade the state from denying "the right of any person [to] decline to sell, lease or rent [property] to such person or persons as he, in his absolute discretion, chooses." But according to the Court, a state constitutional provision that guarantees property rights would have "involve[d] the state in private discriminations to an unconstitutional degree." Combine a weakened state action requirement (which Pilon supports) with the modern passion against private discrimination, and you get cases like Reitman."Intellectual fashions may come and go," as Pilon notes, but the rage against private prejudice is deeply rooted, and backed by federal power. We have not seen the last of it.

What Is To Be Done?

Pilon complains that I haven’t provided a practical answer to the problems posed by the Fourteenth Amendment. It’'s a fair point; let me try to remedy that defect.

For the short term, my answer is for libertarians to make common cause with decentralist conservatives. We should join them in promoting a narrow view of Congress’s enumerated powers under Article I, section 8—and in promoting a narrow view of federal powers under the Fourteenth Amendment. The ³"Leave Us Alone Coalition"—that loose conglomeration of pro-freedom interest groups which Michael Greve has identified as the strongest political force behind a return to real federalism—wants to be left alone by the Court as well. And among conservatives on the federal bench, there’s far more enthusiasm for reinvigorating enumerated powers constraints than there is for reviving the Lochner Court and feeding it steroids.

We should promote a narrow view of Congress’s enumerated powers because, as Roger Pilon has argued so often and so well, that is the extent of the powers authorized by our Constitution. We should promote a narrow view of the Fourteenth Amendment, because that’s the smart thing to do, and because the original meaning of that amendment doesn’t matter much. Is this the sort of results-oriented constitutionalism for which I’ve criticized Roger Pilon? Hardly. Given that the Fourteenth Amendment was never legitimately ratified,we’re freer to adopt a narrow construction of the amendment than we would otherwise be. By giving a narrow reading to the Fourteenth Amendment (which was not a product of constitutional consent), courts keep faith with the Tenth (which was). From this perspective, the post-Civil-War Court’s crabbed construction of the Privileges or Immunities Clause in Slaughterhouse might well be justified as a blow for originalism.

The strategy outlined above is, it seems to me, more prudent and more practical than Pilon’s plan to first push for a broader interpretation of the Fourteenth Amendment and then hope that broad interpretation isn’t hijacked by the Left. As for a longer-term strategy—one aimed at restoring the kind of decentralist constitutional order I’d ultimately like to see—I can give but little guidance. For one thing, we ought to work toward restoring the good name of secession and states’ rights. (How come every time someone speaks favorably about states’ rights, we have to hear about Orval Faubus, but when new federal programs are proposed, nobody brings up the Fugitive Slave Laws or Indian "relocation"?).

And toward that end, as libertarians, we ought to dethrone Thaddeus Stevens from atop our pantheon of heroes, and restore Jefferson to his rightful place. Jefferson considered the states "the true barriers of liberty in our country." And rather than viewing federal judges as the surest guarantors of our freedom, he saw them as a "subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric." Doubtless he’d consider us fools for embracing a system in which so much of our liberty depends on what side of the bed Justice O’Connor got out of any given morning.

Can we ever restore a Jeffersonian constitutional order? I don’t know. I know it’s worth trying. And I fear we’ll never get there if the very people who should be leading the fight have decided instead to join the forces of centralization.

Reference

1. If Congress has the power to "enforce" our natural rights at all levels of government, then woe betide the Republic when it elects a Congress with a different view of natural rights than Roger Pilon. (Most Congresses throughout the 20th Century fit this description.) Luckily, the Court’s 1997 decision in City of Boerne v. Flores, which restricted Congress’s authority under Section Five, makes this particular nightmare scenario far less likely in the short term.

Gene Healy is an attorney practicing in Northern Virginia. This essay is reprinted with permission from Liberty Magazine.