Comment Check: Let’s Learn About the Constitution, Guys!
I think we need to have a big sit-down as libertarians and go back to one of the great libertarian texts, the big one that is cited by many fans of liberty today. Yes, I’m talking about the United States Constitution, and I think this is important because there seems to be a great number of libertarians who don’t understand it, and they have no idea what they’re talking about.
Earlier this week, I wrote about a ThinkProgress piece that was incredibly idiotic and misleading about a Rand Paul quote they just could not comprehend. Amazingly, a user by the username of “Jim” commented that I was a “leftist” for somehow wanting the federal government to mandate a right to birth control pills, i.e., have them paid for by the taxpayers and given to people.
I actually wrote something similar to what I will write here last year, where I identified my own personal split with Ron Paul. I think that same problem, though, has cropped up not only with “Jim” but with a great many libertarians. Strangely (or not so strangely), a lot of them are the Ron Paul type of libertarians, which disturbs me.
The essential argument that Jim makes is that in Griswold v. Connecticut, the case at the center of my last post and what Senator Rand Paul was speaking about, was a terrible overreach by the federal government imposing itself on the states. The Supreme Court case, in 1965, established a Constitutional “right to privacy” and struck down a state law prohibiting contraception. It wasn’t a law prohibiting the government to supply contraception, mind you, just a law saying that women could not go out and buy contraception with their own money.
Most libertarians would agree that a woman should be allowed to buy contraception without interference. Jim disagrees:
First of all, the free market we live in isn’t all that free. But you do not have the right to buy and sell anything you want. That’s another right that you just invented. You cannot buy and sell cocaine, bomb parts, or produce from certain countries. You cannot buy and sell ivory, botulism toxin, or bald eagle feathers. Your asserting it doesn’t make it true.
He goes on to add:
You know what your problem is? You believe in a certain philosophy. Let’s call it modern libertarianism, because a libertarian from even a decade ago would hardly recognize what you’re saying as libertarianism. Your philosophy is fine. I probably agree with most of it. But here’s the key point: Your philosophy is not the law, much less the highest law in the land, the Constitution. The Constitution is a specific document. Nowhere in it does it say, for example, “People can buy and sell whatever they want.”
Except, Jim, it actually does.
The problem that Jim makes is that, while he cites the Tenth Amendment rather prodigiously throughout his diatribe, he conveniently seems to forget that other amendment, the one right before it: the Ninth. And the Ninth Amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
What this means is that, while some rights are, in fact, enumerated in the Constitution, they are not the only rights that citizens have. Indeed, most rights are unenumerated; they are not listed by the Constitution, but people certainly have them. This is obvious, because if we were to list every right out there—the right to drink Miller Lite, the right to break up with your girlfriend/boyfriend, the right to think that Justin Bieber is the hottest singer ever—the Constitution would soon look more like the European Constitution, and nobody wants that.
In fact, the Constitution was explicitly designed as a constitution of unenumerated, but essentially unlimited rights, and enumerated, and very limited, government powers. The Ninth Amendment was explicitly put into the Constitution because of a worry that, with the Bill of Rights as it were, it would open up doors for government tyranny. As Alexander Hamilton wrote in The Federalist No. 48:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
So, Jim, our rights are not those that are explicitly mentioned in the Constitution, but all of those we have from nature, and that situation is recognized by the Ninth Amendment. So when Jim says:
It’s not enumerated because it’s not there. It’s not there because it’s imagined. Where the Constitution is silent, the states get to decide. Connecticut decided in a way that Douglas didn’t like, so he struck it down. That’s tyranny.
The US Constitution says quite emphatically that he is wrong. And not just with the Ninth, but also with the Tenth. It is not just “the states get to decide,” as the states can’t also violate people’s rights. Let’s see what the Tenth says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So the powers are reserved to the people, more or less. It is people that our country is based upon. If they’re not prohibited to the states, nor delegated to the feds via the Constitution, then the states may act—but there’s another thing Jim forgets. It’s called Section 1 of the Fourteenth Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
This means that the states are not allowed to violate your rights, even if such a power is not granted to the feds—perhaps even especially if such a power is not granted to the feds. But moreover, it also empowers the courts to strike down laws that get in the way of our unenumerated rights, since the courts are the final arbiters of whether or not rights are infringed, as usual. And since the 10th Amendment clears the federal government—since courts are provided for in the Constitution—there is no conflict with federal courts striking down state laws that deny us our unenumerated rights.
This may be a shock to those “states rights” people, but it’s how the Constitution works. That’s one reason why I’m not 100% with Ron Paul, though, as I wrote before, since he discounts the Civil Rights Act—which is permitted by the 14th Amendment. Somehow, he forgot that was an amendment, and the implications of such.
And so did “Jim,” when he asserted that the Constitution prohibits the Supreme Court from striking down state laws that violate our rights. We need to understand this, because this flaw weakens all of our Constitution based arguments and makes us look like fools. And that doesn’t help us at all.
It’s also a very good thing for liberty, because it means we have yet another route to ensuring that individual liberty is protected, while oppression and tyranny is eliminated.