By Allen Mendenhall
A point of contention among libertarians is the Fourteenth Amendment, in particular its first and fifth sections. Section One includes the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause; Section Five grants the U.S. Congress the power to enforce the amendment by legislation.
It would require volumes to describe these clauses and the jurisprudence emanating from them. Suffice it to say as a result of the Civil War (and at the height of Reconstruction) these clauses were meant to empower the increasingly centralized national government to regulate state laws.
Supreme Court decisions since the amendment’s ratification have expanded federal power over the states, as well as over local businesses and communities, and have vested that power in the federal judiciary, which is peopled by unelected judges with lifetime appointments.
The question for libertarians is whether the expanded scope of federal power as a result of the Fourteenth Amendment is justified if it reduces discriminatory practices and policies in the states. I submit no. The federal government is neither the only nor the best means for countermanding discrimination.
Libertarian criticisms of the Fourteenth Amendment should not be mistaken as endorsing the discriminatory ideologies the amendment has targeted. Nor should such criticisms be interpreted as excusing the unequal treatment of minorities by states. They should, instead, be a reminder that libertarians favor nongovernmental and decentralized approaches to neutralizing discriminatory institutions and practices.
As a threshold matter, the question must be raised whether the Fourteenth Amendment was legitimately enacted.
Its ratification was made a condition for former Confederate states to reenter the Union and secure congressional representation. Any originalist interpretation of the amendment must account for the fact that the amendment’s adoption—and hence its validity—has been called into question. On this issue, I recommend Raoul Berger’s Government by Judiciary. I also believe, contrary to current fashion, that the Slaughterhouse Cases (1873) correctly refused to expand the Privileges or Immunities Clause to a context having nothing to do with the liberties of former slaves. The Privileges or Immunities Clause having become, in effect, dead-letter, the Supreme Court improperly began to use the Due Process Clause to incorporate the Bill of Rights to apply against the states—again for purposes unrelated to the rights of former slaves. A sustained study of the Civil Rights Act of 1866, the Black Codes, the Thirteenth Amendment, and the 39th Congress reveals that the purpose of the Fourteenth Amendment was to guarantee that freed slaves possessed citizenship and substantive rights as well as procedural due process and access to courts. To treat the Fourteenth Amendment as anything more is to cheapen its meaning.
The Supreme Court and inferior federal courts have used the Equal Protection Clause and the Due Process Clause to regulate activities at the local level that otherwise would have fallen outside the jurisdiction of the federal judiciary. Although these clauses are aimed at state action, they have been used to interfere with the activities of private citizens and businesses and, ironically, to validate inherently discriminatory affirmative action programs.
Due process has been used to nationalize allegedly fundamental rights, yet what constitutes a “right,” let alone a fundamental one, is a philosophical question best left to philosophers, not judges. Because “right” is a slippery signifier susceptible to appropriation, scholars on the left (Erwin Chemerinsky, Charles Black, Peter Edelman, Frank Michelman) have argued for a more robust application of the Due Process Clause and a more expansive denotation of “rights” to include “rights to subsistence,” i.e., rights to government-supplied food, healthcare, and a minimum wage. If these scholars had their way, state governments failing to provide these goods and services would violate the Fourteenth Amendment. The federal government would thus require states to use taxpayer money to support government welfare programs to protect these allegedly fundamental rights. The potential for disaster here is obvious not just in economic terms, but in philosophical terms: Is a “right” merely whatever a government declares to be a right, or do rights, by their nature, precede government promulgation?
Placing faith in federal judges to secure more liberty for citizens by way of the Fourteenth Amendment presupposes that such judges are inclined toward liberty. If the federal judiciary were peopled with capitalists versed in the tradition of classical liberalism and free market economics, the Fourteenth Amendment might advance liberty. But the federal judiciary is peopled by former lawyers, who, for the most part, are not trained in economics or philosophy and are not sympathetic to capitalism. If that comment seems hyperbolic, consider the fact that the federal judiciary consists of individuals whose salaries come from taxpayers and who were nominated by the President and confirmed by professional politicians (i.e., senators), who also live off the American taxpayer. We do not need the federal judiciary to secure rights because Section Five grants Congress that authority. Congress can pass amendments to the U.S. Constitution (the Fourteenth Amendment was itself enacted to strengthen the Civil Rights Act of 1866) or pass laws remedying denials of fundamental rights in the states. Because members of Congress can be voted out of office, whereas federal judges and Supreme Court justices enjoy life tenure, Congress is the appropriate vehicle for such action.
If libertarians were to defend federal intrusion into state affairs on consequentialist grounds—i.e., on grounds that the results of intervention were good—such a defense could be extended to justify the intervention of powerful governments into the business of less powerful states and communities. Is not the celebration of federal intervention into local affairs on consequentialist grounds a close step toward asserting that libertarianism is fundamentally wrong because a centralized, paternalistic power is better at advancing liberty than decentralized government?
Opposition to broad interpretations of the Fourteenth Amendment, including its vigorous application against the states, is not necessarily about “states’ rights” or “state sovereignty.” It is about limited government and decentralization of power. Expansive, creative interpretations of the Fourteenth Amendment have conferred federal jurisdiction over local matters that ought to be outside the province of central planners. Since 1950, the number of federal appeals judges alone has more than doubled. Yet nothing in the Constitution specifically authorizes federal judicial review of legislative acts. The only federal court required by the Constitution is the Supreme Court; Congress may create other federal courts pursuant to Articles I and III of the Constitution, but it is unlikely that the framers of these articles had in mind the massive federal judiciary that exists today. This federal judiciary—the “least dangerous branch”—has grown to overwhelming proportions. It has become a Leviathan unto itself, and the Fourteenth Amendment is part of the problem.
Allen Mendenhall is a writer, managing editor of Southern Literary Review, staff attorney to Chief Justice Roy S. Moore of the Supreme Court of Alabama, adjunct professor at Faulkner University Thomas Goode Jones School of Law, and a doctoral candidate in English at Auburn University. His forthcoming book is Literature and Liberty: Essays in Libertarian Literary Criticism (Roman and Littlefield/Lexington Books).