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."
Link: Link: http://www.lewrockwell.com/orig/healy1.html