• The Squalid 14th Amendment

    Email Print
    Share

    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.

    Email Print
    Share