Supreme Confusion, Or, A Libertarian Defense of Affirmative Action

Recent U.S. Supreme Court decisions on gay rights and affirmative action have liberals cheering and conservatives stewing. In Lawrence v. Texas, the Court overturned a Texas law outlawing same-sex sexual conduct. In two decisions on affirmative action policies by state universities, the Court split the baby. Grutter v. Bollinger upheld the affirmative action policy of the University of Michigan Law School, while Gratz v. Bollinger overturned the point-based affirmative action policy of the University of Michigan’s undergraduate colleges.

Where should libertarians stand? I suspect most mainstream (read: non-paleo) libertarians are with the liberals on the gay rights decision and with the conservatives on the affirmative action decision in Bollinger. After all, laws banning consensual sex are unlibertarian, and it is a good thing if they are overturned, or so it is argued. On the other hand, affirmative action practiced by state universities is unlibertarian, so the Court in Grutter v. Bollinger should have banned the affirmative action policy of the University of Michigan Law School. Case in point, the Center for Individual Rights launched the above-noted challenges to the University of Michigan’s affirmative action policies.

The Constitutional Scheme

Let’s assume for the moment that state laws banning gay sex and state university affirmative action policies are indeed unlibertarian — that they violate individual rights. Even if this is the case, the U.S. Supreme Court has no business overturning them. The federal government simply has no jurisdiction over these laws, any more than the divorce court in Panama ought to be able to overturn repugnant laws of, say, Hong Kong, or any more than the United Nations should be able to order the U.S. to shift to metric.

The U.S. federal Constitution was designed to provide various structural limitations on federal power. These limits include horizontal separation of powers and checks and balances (dividing federal power between co-equal legislative, executive, and judicial branches), as well as explicit limits on federal power listed in the Bill of Rights. More importantly, the Constitution established a federal government of limited and enumerated powers, and thus sets up vertical separation of powers between the states and the federal government.

The limited powers scheme of the Constitution protects individual rights because the federales are simply not empowered to violate individual rights. Thus, argued the Federalists, it is not necessary to list the rights that the federal government may not invade; it is better to simply rely on the fact that the federal government has only certain limited things it can do. In fact, when ratified in 1789, the Constitution did not contain the Bill of Rights — it was added in 1791. But the Antifederalists demanded a bill of rights, anyway, just to be sure. In any event, by withholding the "plenary" type of "police power" that normal sovereign states are said to have (the power to legislate in general, for the general protection and benefit of the populace), the Constitution in effect protected an open-ended set of individual rights.

But not only was the federal government not authorized to invade individual rights; it was also not empowered to do many things that state governments may do, such as outlaw murder. The central government’s inability to outlaw murder does not mean there is a right to commit murder, of course. The Constitution leaves to the states the role of protecting them from such private crimes.

More importantly for our purposes, the feds were also not granted the power to protect individuals from unwise or unjust state laws. For example, the Congress was not granted the power to prevent the sovereign states from setting up a state religion or censoring certain speech. This does not mean that states have a "right" to censor speech, but it does mean that the federal government is powerless to interfere with state laws just because they are unjust. The Constitution was designed primarily to establish, and strictly limit the power of, a central government. The states already existed and had their own state constitutions, which, along with the political process within the states, are the primary means of placing limits on state government power.

The federal government, as a government of strictly enumerated and limited powers, is thus different from the states which, from the perspective of the federal Constitution, are sovereign states with plenary power. This means that except where the Constitution explicitly limits state power, the states are free, within the bounds of their own state constitutions, to legislate what they wish.

Obviously, if the limits set forth in the Constitution were recognized by federal officials (though this is of course unlikely), the federal government’s ability to trample our rights would likewise be limited. Libertarians, therefore, ought to be in favor of members of the state having to follow the very rules they claim need to be followed to give the state legitimacy. (N.b.: Joe Sobran has written many great essays on federalism and the constitutional scheme.)

Judicial Review of Federal Action

In the original federal scheme, the Supreme Court is free to overturn unconstitutional federal laws. Here, I agree with Jefferson’s theory of "concurrent review," whereby each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of (federal) government action. Meaning the Supreme Court and the President can (and should) refuse to endorse or enforce a law it believes to be unconstitutional; Congressmen should refuse to vote for laws they believe to be unconstitutional, and so on. This is in contrast with the now-dominant doctrine of judicial supremacy, the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. (On concurrent review, see David N. Mayer, The Constitutional Thought of Thomas Jefferson 131, 259, 263, 269-72 (University Press of Virginia, 1995); William J. Quirk & R. Randall Bridwell, Judicial Dictatorship xiv, 10-11, 13 (Transaction Pub., 1995).)

Thus, for example, if Congress had enacted a law censoring certain speech or publications, the Supreme Court would have been justified in overturning it simply on the ground of ultra vires — that it is an act beyond Congress’ power. Note that the First Amendment, which was not added until 1791, is irrelevant to this analysis. With or without the First Amendment, Congress is not authorized to limit speech or the press. Of course, after the First Amendment was added in 1791, the Court could have overturned a federal censorship law as violating this amendment as well. But this argument would have been redundant and superfluous, since Congress is nowhere granted the power to censor speech.

Likewise, a federal statute limiting gun rights would be unconstitutional since Congress is nowhere empowered to do this. Proponents of gun rights for this reason should not rely so much on the poorly worded and much-debated Second Amendment; even if, as gun opponents charge, the Second Amendment does not provide an "individual" right to bear arms, still, Congress is nowhere empowered to regulate or ban the ownership of weapons. Even if there were no Second Amendment — as there was not from 1789 to 1791 — federal laws regulating gun ownership are simply unconstitutional. (Further: even if the Second Amendment does not protect a right to bear arms, this fact cannot be argued to show that there is not such a right, since the Ninth Amendment prohibits such an inference.)

Federal Judicial Review of State Laws

As is clear from the preceding discussion, the Constitutional scheme was not designed to empower the federal government, through its courts, to strike down repugnant state laws. In fact, this would require specifically enumerating a power to strike down state laws, which power is nowhere to be found in the original Constitution. Nonetheless, modern Constitutional jurisprudence holds that the federal Supreme Court can strike down state laws that violate most of the "important" rights specified in the Bill of Rights, even though the Bill of Rights is really just a listing of limits on federal powers, which was meant only as an exclamation point to emphasize that the federal government is one of strictly limited and enumerated powers. In other words, a constitutional structure meant to limit federal power and its ability to interfere with the people and the states, has been used by the federal government as a warrant to expand its power over the states.

How did this happen? It is another legacy of Abraham Lincoln and his illegal War on the South — in particular, the Fourteenth Amendment, and the "Incorporation Doctrine," which holds that the Fourteenth Amendment’s Due Process clause "incorporates" the "fundamental" rights in the Bill of Rights and "applies" them to the states. This means that Congress and the federal Courts are empowered by the Constitution to nullify state laws that violate these fundamental rights.

Libertarians should oppose this view for several reasons. First, the Fourteenth Amendment was unconstitutionally ratified. Second, the Due Process clause was never intended to "incorporate" the rights in the Bill of Rights. It simply makes no sense that it would have: the Bill of Rights, as noted above, was simply a safety measure to ensure that the federal government would not exceed its limited powers. The First Amendment itself says "Congress shall make no law…". How could a limitation on Congress’s power be applied to the states? Moreover, the Courts have had to resort to the ridiculous doctrine of "substantive due process," as distinct from "procedural due process." How can due process not be merely procedural? (Cato Institute legal scholar Roger Pilon agrees that the Due Process and Equal Protection Clauses of the Fourteenth Amendment were not intended to provide federal protection for citizens’ fundamental rights; but wrongly, in my view, argues that the Privileges and Immunities Clause should be used for this purpose instead.)

Third, the Fourteenth Amendment and the Incorporation Doctrine that it spawned have eroded the vertical balance of powers between the states and the central government that was put originally in place so that the states would serve as checks on central tyranny. With Lincoln’s War Between the States and the Fourteenth Amendment as construed by federal judges, that check has been greatly weakened.

In order for the Court to overturn noxious state laws, it must seize powers it was not granted. If the federal government is free to ignore the limiting language of the Constitution and assume powers not granted to it, our rights are clearly less secure.

Let us now turn to the recent Supreme Court decisions.

Gay Sex

If Congress had enacted a federal law outlawing homosexual sodomy, the Supreme Court would have been justified in refusing to enforce the law on the grounds that Congress is simply not empowered to enact such laws. The right of the Supreme Court to strike down unconstitutional federal legislation derives from the judicial branch’s co-equal status under the Constitution and its independent obligation to abide by the Constitution.

There is no explicit limitation in the Bill of Rights with regard to laws concerning sex, but it does not matter, since Congress is not given the power to outlaw sodomy. To be sure, the Ninth Amendment does say that the failure to enumerate a right in the Constitution cannot be construed to mean that the right does not exist. Certainly, this could be used as a presumption that there is a right to engage in sodomy that may not be trampled by the federal government, or to buttress the argument that Congress is not given the power to regulate sexual interaction. But the essential point is that no right to sexual conduct needs to be found, since the Constitution nowhere authorizes such laws in the first place. There is no need to invent some murky "right of privacy" which is found in "penumbras" of "emanations" of the "specific guarantees in the Bill of Rights," which "emanations" "help give [the guarantees] life and substance".

However, as explained above, a state law banning gay sex simply does not violate the Constitution. The Constitution protects this right from federal invasion simply by denying to Congress the power to regulate it. But a state law infringing this right does not contradict the denial of legislative power to Congress. Accordingly, libertarians should oppose the decision in Lawrence v. Texas. While it does overturn a noxious, illegitimate law, the price is the assumption of unbridled, unconstitutional, unlimited power by the federal government’s judicial branch.

Moreover, the decision is completely indefensible, even under existing Constitutional jurisprudence. Under current Constitutional law, any challenged state law that restricts liberty is "scrutinized" by the federal courts, to determine whether the law is consistent with the rights protected by the Due Process Clause of the Fourteenth Amendment. As Justice Scalia explains in a brilliant dissent, laws that limit so-called fundamental rights are given "heightened" scrutiny. Fundamental rights are those that are "deeply rooted in this Nation’s history and tradition." However, "All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest." In other words, a law restricting a "fundamental" right will be found unconstitutional unless "the infringement is narrowly tailored to serve a compelling state interest." But a law restricting some non-fundamental right is usually upheld, so long as there is some rational basis for the law.

The majority could not with a straight face argue that a right to engage in homosexual sodomy is one traditionally recognized in this country, and therefore it does not declare the right in question to be "fundamental." This means that the law should be subjected only to rational-basis scrutiny, under which it should no doubt be upheld. Inexplicably, however, the majority simply engineers the result it wants, without being able to find a sincere or serious Constitutional basis for it.

Affirmative Action

The gay-sex case rests on the "fundamental rights" analysis of the Due Process Clause of the Fourteenth Amendment. The affirmative action cases, by contrast, concern that Amendment’s Equal Protection Clause (no state may "deny to any person within its jurisdiction the equal protection of the laws"). The argument is that affirmative action by state actors such as public universities discriminates based on race, which violates the equal protection provision.

Now what is the libertarian take on this? As noted above, the Fourteenth Amendment was unconstitutionally ratified and is also a bad idea, since it erodes federalism, a structural limit on federal power. If the central government is empowered to strike down local laws that it dislikes, this simply shifts more power to the federal government, thereby centralizing more and removing structural limits on federal tyranny.

There is yet another weakness in the criticism of state affirmative action policies, one that is usually not recognized by libertarians. In the Texas sodomy case, at least it is clear that the state law at issue is unlibertarian. The Texas law clearly violates individual rights to engage in victimless activities. Of course, this law should be abolished; the question for the libertarian is whether the federal government should be, or has been, empowered to do the abolishing.

In the case of affirmative action practiced by state schools, however, it is not so clear that anyone’s rights are being violated by the policy. Now this assertion may seem baffling to many libertarians who, like conservatives, seem to automatically assume that affirmative action is abominable. But upon close inspection of the practice the objections evaporate.

Let us step back. In the case of criminalizing sodomy, force is used or threatened against those who have not committed any aggression. Affirmative action laws that force private businesses to diversify in their hiring are also clearly unlibertarian. These laws threaten the property of those who have not committed any aggression.

But whose rights are violated by affirmative action policies practiced by public schools? The policy does not threaten the person or property of anyone. It simply is part of a test that determines whether or not someone has access to the property. Marginal white students who do not get admitted because of the policy — are their rights violated? It would seem that their rights are violated only if they have a right to attend the university, which is "taken" as a result of the affirmative action policy. But why do they have a right to attend a state university? If merely being denied admission means an applicant’s rights are violated, what about all the dumb kids who are denied admission? If a 10 year old applies he will not be admitted. Are his rights violated? If someone from out of state applies, he has a lower chance of being admitted. So what? How does this demonstrate any aggression or violation of the rights of the non-admitted masses?

By having any admission standards at all, some individuals or classes of people will be denied the "right" to attend the university. Clearly it cannot be argued that rights are violated by virtue of the university having standards for admission. So what, then, is the argument?

As best I can tell, libertarians who believe affirmative action policies are unlibertarian usually base this conclusion on Randian-style reasoning. Rand believed government was necessary. However, it is dangerous, because it is the sole, monopolistic wielder of force. So although individuals have a right to act both "rationally" and "irrationally," so long as no one’s rights are violated, government must be held to a stricter standard. In particular, government may only act "rationally" in wielding force. It does not have the luxury or discretion to act irrationally. Now all forms of collectivism, including racism, are irrational. Government, therefore, may not be racist or collectivist in its policies and decisions. Accordingly, a government agency such as a state university, may not use race as one its admission criteria. QED.

But this argument is unpersuasive. First, the standard for what is "rational" or "irrational" government policy is nonrigorous. Under libertarianism, the owner of private property is the one who gets to decide what to do with it. Ownership is simply the right to control. Of course, the owner’s own preferences, values, and judgments factor into his decisions of how he uses the property. But beyond saying that the owner has the right to control his own property as he sees fit, how can libertarianism distinguish between "irrational" and "rational" uses of property? As I have pointed out elsewhere, the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources. Libertarianism provides no objective way to classify uses of property as "rational" or "irrational" (except perhaps with reference to which actions generate profit and which generate loss, but surely we do not want to say that all non-profit uses of one’s property is "irrational" or "immoral" in the Randian sense).

The problem with public schools is that they are owned by a criminal agency, and supported by stolen property. Of course they should be shut down. But given that state universities exist, the question is simply, How should they be run? Well, if they are going to be schools, then they must do what private schools do: namely, own and control facilities, hire teachers, attract students, set admissions policies, and so forth. I.e., try to run the place, by and large, as a private owner would.

Would a private school ever employ affirmative action in its admissions policies? Apparently so. There seems to be an assumption among hyper-individualist libertarians that everything should be based on "merit," whatever that means. When the liberal points out that rich WASP "legacy" students get admitted into Ivy League universities based on their parents’ previous attendance or through political pull, rather than merit, conservatives and libertarians brush this off, although it is a perfectly good point. George W. Bush was probably admitted into Yale not because of merit, but because of his family connections. And so what? For the libertarian, this poses no problem: the owner of property can do what he wants with it. A college can set whatever admissions criteria it wants. It is not surprising most universities want to use merit as one factor, in order to attract bright students. It is also not difficult to see why a legacy system might develop.

As for affirmative action, it is not necessarily "irrational". Is it necessarily "irrational" for a university (private or public) to try to obtain a more racially-diverse student population? Who knows? What if the trustees of the university believe they can attract more and/or higher-quality students if they can claim they are more diverse? What if the trustees simply want to help out historically-disadvantaged minorities? What is wrong with wanting to give a leg up to minorities? What is irrational about wanting to work with, employ, or service one’s own kind? Any of these can be reasons for employing affirmative action.

Affirmative action by universities is not irrational. It is simply the exercise of authority over property rights. The problem with public schools is that they exist, not that how they decide to control the property that they have, given that they do exist.


To sum up, the problem with the gay sex decision is that the Constitution did not limit the power of states to enact such laws, nor did it empower the federal government to do anything about it. Further, the Fourteenth Amendment was illegally ratified, and is a bad idea to boot. Finally, using the Due Process Clause of the Fourteenth Amendment in order to strike down a law banning sodomy requires disingenuous, result-oriented reasoning.

Libertarians should also disfavor using federal courts to strike down affirmative action policies of state universities. For one, this would require the courts to rely on the illegal Fourteenth Amendment and its Equal Protection Clause. Moreover, unlike a law regulating sexual conduct, an affirmative action policy of a state university has no victims (in the libertarian sense). The problem is with the taxation that funds it, not with the university administrators setting admissions policies or otherwise using the property as if they own it.

Of course libertarians should oppose laws criminalizing victimless, consensual sexual activity. But we should not endorse unconstitutionally expanding federal power as the means for overturning such laws. That is like inviting a big mafia into your neighborhood to help restrain a smaller one.

As for affirmative action policies of public universities, the libertarian should oppose the very existence of such universities, and the taxation that supports them. However, we should not advocate granting even more power to an already too-powerful federal government so it can mandate to the states how to run their own institutions — especially if the power comes from a wrongheaded and illegally ratified constitutional amendment.