Over the last couple of days I’ve been more actively engaged in Facebook conversations than I usually am. The story of Kim Davis, the Rowan County, Kentucky, clerk I wrote about earlier this week, has elicited reactions on a couple of levels that I find interesting and worthy of discussing. Specifically I think the constitutional angle is important.
But what has also been interesting is the lengths to which liberals have gone to attack Davis in particular and, more generally, anyone who disagrees with the principle that one group’s policy preferences should be forced upon the whole society by the federal government.
So, in order to buttress the point that I raised earlier and show that the case I made is actually consistent with the Constitution, I’d like to address a few objections that I have seen.
Yes, the Constitution Places Limits on the Federal Government
One of the main points of my article was that, agree with Davis or not, she is clearly acting within the original understanding of the Constitution by prioritizing her state’s definition of marriage over the Supreme Court’s.
(As an aside, yes I understand that she has stopped handing out all marriage licenses, but she’s doing so because of the Obergefell decision, not due to a radical libertarian perspective on the role of the state in marriage. If only.)
But back to the constitutional issue, as I pointed out, the federal government has no delegated authority over the definition of marriage. And since the Tenth Amendment makes clear that any power not delegated to the federal government remains with the states, any honest reading of the Constitution clearly indicates there’s no power for the federal government – any branch of it – to tell the states what their policies on marriage should be.
Furthermore, the Bill of Rights was intended to limit only the federal government. Hence the language that “Congress shall make no law” and not that “any government shall make no law.” In fact, when the Bill of Rights was being drafted, James Madison sought to include an amendment that would have applied parts of it to the states. Madison’s proposal was so unpopular that it wasn’t even brought up for a vote.
So, whether modern-day liberals (or conservatives for that matter) like it or not, the Constitution does limit the federal government.
The Fourteenth Amendment Has a Meaning
But, wait. What’s that in the distance? Why, it’s the Fourteenth Amendment riding in to save the day. Right? Well, no.
The Fourteenth Amendment, like the rest of the Constitution, has a distinct meaning, tied to the circumstances of its ratification. Understood in its proper context, the Fourteenth Amendment was intended to supply the slaves freed after the Civil War with the political equality that everyone else had at that time. In fact, the proponents of the Fourteenth Amendment said that its only effect was to constitutionalize the Civil Rights Act of 1866.
That act was passed to grant the newly-freed slaves the same basic civil rights that whites then enjoyed. As the law laid them out, these included the right to make contracts, to have equal access to the courts, to have their lives and property protected by due process and to not be subjected to harsher taxes, criminal penalties and government restrictions than whites were.
It’s important to note that these ideas have distinct legal meanings that aren’t, or at least weren’t, open to broad judicial interpretation. Constitutional scholar William J. Watkins has observed that, “Due process has always been thought of in terms of what…procedures the government had to take before it could deprive an individual of life, liberty or property.”
The Fourteenth Amendment’s Privileges and Immunities (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) and Equal Protection (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws”) clauses were said by the amendment’s proponents to relate directly back to this language in the Civil Rights Act. In this way, the Act clarifies the amendment that followed it.
Of course, it is these two clauses that liberals always cite when they want the Supreme Court to discover new rights that correspond with their preferred social outcomes. But it is obvious that the original intent of the Fourteenth Amendment, even as it expanded federal power, was much more limited in scope.
Privileges and Immunities
If the Fourteenth Amendment had intended to give broad discretionary powers to the federal government, the Supreme Court had the opportunity to clarify that soon after the amendment was ratified. In the 1873 Slaughterhouse Cases, historian Kevin Gutzman has observed, “The issue before the Court was the extent to which the (amendment) had remade American federalism; it’s decision was ‘not much.'”
Gutzman goes on, “The Court faced a stark choice: bring virtually ever area of state lawmaking under the supervision of federal courts, or not. The justices decided not to.”
The Court explained,
“Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”
Now, one would think that if the Fourteenth Amendment were intended to have the meaning that liberals say it does, that the concurrent Supreme Court would have found it. That they didn’t is instructive. In fact, in relation to the Privileges and Immunities Clause, the Court recognized that the amendment allowed for a distinction between state and federal citizenship and that the states retained jurisdiction in many area of lawmaking that were outside the federal government’s purview.
According to Gutzman, the rights that the Court found relevant to the Fourteenth Amendment included,
“The right to travel to the federal capital, the right to seek federal government protection, the right to work for the federal government, the right to use American ports, the right to federal protection when traveling on the high seas, and other rights of a similar nature as rights of federal citizenship.”
In fact, the Court explicitly stated that they did not understand the amendment to give the federal government the duty of protecting “all of the civil rights” because that “would constitute this court a perpetual censor upon all legislation of the States.”
That the Court in 1873 denied it had this right is broadly ignored by most modern Americans, particularly when they want the federal government to do something for them.
Due Process and Equal Protection
The broad reading of the Fourteenth Amendment is further undermined by the part of the Slaughterhouse decision that clearly suggests that the Bill of Rights’ applicability to the states – or lack thereof – was unchanged even after the amendment. This understanding was reinforced in 1922 when the Court declared that even the vaunted First Amendment didn’t apply to the states, saying
“…neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”
Historian Dave Benner has observed that, three decades later, Justice Felix Frankfurter came to the same conclusion, declaring,
“…that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.”
If the Fourteenth Amendment did not apply the Bill of Rights’ restrictions on the federal government to the states, much less could it be said to have discovered a whole host of new rights that the states would be required to acknowledge.
The Fifteenth Amendment, ratified in 1870, further undermines the broad reading of the Fourteenth Amendment. That amendment extended to blacks the same right to vote that whites had, just as the Nineteenth Amendment would do for women in 1920. What is interesting is that the right to vote should have been covered if the modern, expansive reading of the Fourteenth Amendment were correct. The fact that these later amendments were thought necessary clearly indicates the limited scope of the Fourteenth
In this understanding, the Due Process and Equal Protection clauses of the Fourteenth Amendment are clearly in reference to the basic civil rights mentioned above and don’t include the expansive “rights” that many people claim today. In fact, it is only by considering the historical definition of civil rights that the Fourteenth Amendment can be accurately understood. That modern Americans don’t know what basic civil rights are is more of an indictment on the American educational system than it is a strict constructionalist reading of the Constitution.
With this in mind it becomes clear that the amendment had no bearing on marriage. Benner has said that, “no one that ever proposed or explained the Fourteenth Amendment ever said it impacted marriage, in fact some even said it would have no affect on northern states.”
But even if we assume that it did, it’s not clear that it would lead the Supreme Court to decide that a state cannot define marriage on its own. The Fourteenth Amendment did not dictate the laws that people would be equal under, so there is still latitude for the states to decide for itself what constitutes marriage. In this way, everyone is technically free to get married. That a couple (or, say, a polygamous family) doesn’t agree with the state’s definition of marriage doesn’t mean that they’re prohibited from participating in it. It just means that they don’t want to define marriage in the same way their state does.
It is certainly true that not all Supreme Courts have come to these conclusions about the meaning of the Fourteenth Amendment. This has particularly been the case since the mid-twentieth century, when the Court began to significantly ramp up the expansive reading of the amendment. These decisions, so the theory goes, overturned both the decisions of past courts and the original meaning of the Constitution and its amendments.
Because of this, the people who advance my understanding of the Constitution are said to have no understanding of the concept of judicial review. My counter to this argument is that I understand judicial review and “constitutional law” just fine. I just don’t buy that these concepts, as they are currently employed, are consistent with the Constitution itself.
Yes, the Supreme Court has the authority to review federal laws and determine their constitutionality. This, although mildly controversial in the constitutional debates, was a commonly understood feature of the federal courts when the Constitution was ratified.
What was not commonly understood was that, first, the federal government would have state laws under its purview and that, second, federal courts alone would have the power of determining constitutionality. Thomas Jefferson opposed the latter idea when he wrote in 1798 that the states were “not united on the principle of unlimited submission to their General Government.” He wrote further that,
“the (federal) government was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Essentially, Jefferson’s point was that while the Supreme Court had the authority to judge the constitutionality of laws, it did not have sole authority to do so because the states also held that power. Alexander Hamilton wrote in Federalist 33 that any unconstitutional laws would “be merely acts of usurpation, and will deserve to be treated as such.” Jefferson and Hamilton were joined in these opinions by a wide range of Americans from the Founding down through the mid-nineteenth century, when northerners adjudged the Fugitive Slave Act of 1850 and the Supreme Court’s Dred Scott decision to be unconstitutional .
Also debated in the constitutional and ratification conventions was the idea that federal courts could strike down state laws. South Carolinian Charles Pinckney was a particularly devoted advocate of giving this power to the federal government during the Philadelphia Convention, but his proposal was so unpopular that it didn’t even make it to committee.
Historian Brion McClanahan writes that during the Virginia Ratification Convention,
“George Mason proposed an amendment that would have replaced the arguably vague grant of judicial powers found (in the Constitution) with a far more specific and limited list in order to guard the states’ independence from the federal judiciary. The amendment was voted down as unnecessary.”
So the constitutional perspective on the Supreme Court is that it does indeed have the authority to determine the constitutionality of federal laws (and, now, as a result of later amendments some state laws), but it was never set up to be the only body that could do so. Why people think that the founding generation would have spent so much time debating the limits on the federal government only to turn the power of interpreting those limits over to the federal government is beyond me.
Since there has been no constitutional amendment that deprives the right of the states to determine what is and isn’t constitutional, when liberals say that the Constitution validates the wide range of judicial action they support and that these Court decisions are supreme and final, they are either ignorant of the truth or are willfully rejecting it.
But, what about discrimination?
The standard response to this entire line of argument is, “But, that would mean that the states could discriminate against other people!” And that’s true. Allowing the states to be largely independent in the development of their own laws does theoretically allow for all kinds of oppressive legislation to be passed.
But two points are missed in this argument. First, the states themselves have their own bills of rights which outline the rights of their citizens, rights that cannot be infringed by the state governments. If a law violates those rights, it is the duty of the state supreme courts to overturn them, and it is the duty of the people to oppose them.
But even more importantly, vesting all political power in the federal government doesn’t remove the possibility of laws that are unfriendly to freedom, as the federal government itself has been responsible for some of the most illiberal laws in American history. It ruled in the Dred Scott decision that black Americans could never be American citizens. It imprisoned, without due process, hundreds of thousands of Japanese-Americans during World War II. Today it claims the right to snoop on literally every thing you do, and to imprison you indefinitely at the president’s whim.
That empowering smaller units of government stands in the way of centralized oppression is a similarly lost point. That it was individual states that ended slavery while the federal government was still passing fugitive slave laws is not discussed. That at least two northern states invalidated the Dred Scott decision within their borders means nothing. Only the cartoon version of history is allowed, where recalcitrant state governments are forced to come under the umbrella of enlightened freedom by a beneficent federal government.
Are the state governments capable of doing evil, or restricting freedom? Yes. But so too is the federal government. The idea that centralizing political power to rule what is approaching half a billion people will result in widespread personal freedom is a leftist fantasy. And looking back over the path of destruction wrought by the centralized, totalitarian governments of the twentieth century, they should know better.
That it might be inadvisable to grant the federal government a blank check on its own powers also doesn’t seem to dawn on liberals. Nope, as long as the magic genie is handing out wishes, nobody needs to worry about unintended consequences. They can just keep feeding the beast in the supreme confidence that it will never break the progressively weakened chain that restrains it.
All Constitutionalists are Bigots! Right?
What’s hilarious to me is that the left’s reaction to the ideas that I hold, that Kentucky’s state laws regarding marriage hold constitutional precedence over the federal government’s edicts, has been so vitriolic. “It’s poorly thought out” they say, as if allowing the federal government to ignore its own laws is a stroke of genius. It never occurs to the left that the constitutionalist argument would have defended state laws that legalized gay marriage between the time the Defense of Marriage Act was passed and when it was ruled unconstitutional.
And, if you’re asking, yes my opinion of the DOMA is that it was unconstitutional and that Massachusetts, for instance, had every constitutional right to define marriage on its own terms. This is the consistency of the constitutionalist position. In recognizing the limits on the federal government it also recognizes the great variety of legislation that can be constitutionally passed in the states.
The claim, as I have seen this week, that the constitutionalist defense of Kim Davis is reflective of someone falling under the sway of the anti-gay movement is flat wrong. Recognizing the correct balance between the state and federal governments gives no insight into someone’s personal views on a wide range of laws. Charges of bigotry and comparisons to the segregationists of decades past fall as wide of the mark as the belief in the benign utility of centralized power.
To be fair, I don’t think it’s accurate to say that nobody could ever look back through history and come to a different conclusion than mine regarding the relationship of the state and federal governments. But I do think that the position I – and many scholars of significantly higher prominence – hold is the one that is most in line with the original understanding of the Constitution.
I don’t believe that the meaning of the Constitution can be changed by mere judicial fiat. Judges can’t magically find new meanings in amendments 100 years after they’re passed. If judges are interpreting the Constitution differently, it’s because they want it to say something that it doesn’t. This mad-libbing of the Constitution is then defended by liberals as the only rational way the document could be interpreted.
Even more interesting than the left’s reaction to the ideas of federalism, which on this case were quite predictable, is that the idea that there should be no government prohibitions on or endorsements of marriage has been decried as illogical nonsense. Because, good golly, how could we ever enjoy our personal relationships without the approval of government? That my libertarian perspective on the role of the state, in all matters including marriage, would have long ago allowed gay couples to marry is apparently of no value.
This kind of reaction truly makes me wonder if liberals are as concerned with freedom of choice as they are about forcing their opinions and values upon the rest of society. It seems that, for liberals, it’s not enough for people to be free. No, more than that, the balance of society must be legally required to approve of and support their preferences.
In this view the baker, the pizzeria owner, the pastor and the county clerk must all be forced into compliance with the liberals’ definition of marriage. Nobody can be allowed to disagree, and anyone that does must immediately be shut (or locked) up.
On the subject of marriage, Ron Paul has written,
“Why not tolerate everybody’s definition as long as neither side uses force to impose its views on the other? It doesn’t happen because of the lack of tolerance on both sides. One side wants a narrow definition for all, and the other side wants a broad definition that demands full acceptance…
“With a bit more tolerance and a lot less government involvement in our lives, this needless problem and emotionally charged debate could be easily avoided.”
Like Paul, I don’t agree with anyone using the power of government to enforce one definition of marriage, be it the narrow or the broad one, on everyone else. I disagree, as a matter of political principle, with Kentucky’s statute that enforces a singular definition of marriage, just as I disagree with Massachusetts’ broader definition of that institution.
I see no reason why people can’t disagree on this matter without involving government, unless their primary desire is to make sure that nobody can disagree with them. The libertarian position recognizes, as neither the liberal nor conservative ones do, that appealing to political power in this matter (and pretty much all others) needlessly divides people even as it seeks to force homogeneity upon them. Furthermore, it grows government power, power that will invariably be turned against everyone as time goes by.
I have repeatedly expressed my frustrations with conservatives for not understanding this point and with their complete lack of interest in following the Constitution. This week has finally brought me the opportunity to direct those frustrations at liberals.