United Liberty
Comment Check: Let’s Learn About the Constitution, Guys!
Thu, 08/09/2012 - 2:12pm | posted by Jeremy Kolassa
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.
Always hated the simplistic ‘states-rights’ position as if being protected from federal incursion was the only important aspect, and the states could simply lord over you in anyway they saw fit. It’s that kind of stuff that leads to the oh so painful Rothbardian defense of the Confederacy. In crafting the Bill of Rights Madison advocated for an amendment keeping the individual states from violating rights of conscience, press or trial by jury. The first proposal for the what became the ninth amendment read: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution”. The Ninth, while generally ignored, has always been my starting point - I claim a Ninth Amendment right not to join your happy little collectivist scheme, you justify to me how and why I must surrender some piece of my personal autonomy in your grander scheme of government action. People who advocate the 10th amendment perspective usually ignore the 9th and the part of the 10th establishing that it is the individual that is the important piece of the puzzle. People have rights, never governments, state or federal. How and why the 14th Amendment is not more universally appreciated by libertarians always puzzles me. One of the reasons that libertarians are scoffed at, especially on the left, is due to those (sometimes neo-confederate) advocates that hold open disdain for the 14th and the increased Federal action against the states it brought about. What is so ass-backwards about it though is the reason we do not have the limited federal government we advocate for today is because of the 14th amendment action that was deemed necessary to keep racist troglodytes from denying even basic human dignity to their neighbors because they considered themselves born better. Had there been more concern for freedom and liberty for all, we would probably have more freedom and liberty.
@Jeremy,
Take it from a guy who voted for Ron Paul in ‘88, ‘08, and ‘12: Ron Paul is right on this one.
Prohibiting birth control may be a stupid policy, but it’s up to the states to decide. Or at least it should be.
This IS overreach on the part of the federal government, and that’s why you should be against it, not because of any personal feelings about birth control. When the federal government overreaches, it shouldn’t matter if they’re delivering the policy you want or not. That’s how unprincipled political opportunists think about tough political questions.
This Jim fellow is probably hypocritical on this one, as most conservatives are. He probably has no problem with the federal government involving itself in drug policy when the drug is marijuana, and when the policy is prohibition. But you’re no less hypocritical. All drug laws should be state laws. They get to decide, not Washington. Birth control is a drug. California should be free to legalize pot without the feds getting involved, and Connecticut should be free to prohibit birth control pills.
I am also aware of the Ninth, and while you make a compelling case, it’s also clear that anyone could make up anything they want and declare it a right. Wait ‘til the real leftists get a hold of that one: the right to health care, the right to a job, the right to a living wage. They’ll never stop making up new rights that simply don’t exist in the Constitution and then lump them under the Ninth.
What exactly can the state governments decide on, if everything is a right?
“[I]t’s also clear that anyone could make up anything they want and declare it a right…”
Sure, and Congress could vote tomorrow to declare, as a matter of law, that 2+2=5. Doesn’t make it correct, and doesn’t make it improper for a court to say, “Um, no.”
Meanwhile, it takes a special kind of stupid to imagine that there is a greater threat from “inventing false individual rights” than from “inventing false government powers.”
Prohibiting birth control may be a stupid policy, but it’s up to the states to decide. Or at least it should be.
So then should the states be allowed to ban black and white people from marrying? Or ban people from buying alcohol? Or ban people from buying aspirin? Or hell, even keep people from driving?
Our rights come from before government or any other political institution. If we simply allow state governments to deny rights because “it’s the states,” then what rights do we have? How would we stop an authoritarian state government from arising? Or a socialist one?
No, Ron Paul is wrong on this front. We have different states to try out different things on the local level, to set different economic policy, but there are still broad areas nobody should touch. I can’t see banning the selling of birth control as being one of those areas they can.
Where would you draw the line, Torch? Where would you allow the states to say “We can ban these things” but “we can’t ban these things”? What rights they can and cannot trample? And where would you even say that rights come from, Torch? Our government, or somewhere else? If they do come from the government, then how do we protect our liberty?
This is why I think Ron Paul is more of a constitutionalist conservative, rather than a libertarian. He’s a very good advocate for small government, but he’s not quite a libertarian. He has a different philosophical foundation.
“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.”
Federalism is good for liberty. That’s why Ron Paul is for it. I read the linked Lew Rockwell piece, and I must say that it’s Dr. Paul at his best. He made the case for judicial restraint, federalism, and liberty, as he always does.
This column would not have been the least bit controversial in libertarian circles in the eighties or nineties. It would have been the default position. I don’t understand the new libertarianism I’ve been witnessing lately. It’s not the one I’ve known and loved for so many years. I think we need to think of a new name to call your type of libertarianism. Perhaps neo-libertarianism?
“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.”
Oh my God, you’re really not a libertarian, or a constitutionalist for that matter. Whoa. I thought this was a website for libertarians, by libertarians.
Sorry, if you want to deny people the basic right to buy medicine from themselves by having a government—any level of government—ban it, then you’re not really a libertarian.
Because, you know, libertarianism is about maximizing individual liberty, not about a particular theory of the Constitution.
I think maybe you should go back and learn a bit about what liberty really means.
“Oh my God, you’re really not a libertarian, or a constitutionalist for that matter. Whoa. I thought this was a website for libertarians, by libertarians.”
So…wanting people to have the freedom to decide for themselves versus a government making the decision for them isn’t libertarian??
Sorry, when I said “this column” I meant the Ron Paul column on Lew Rockwell’s site. Not Jeremy’s column.
It’s funny how the libertarians have surmised the ENTIRE argument to State’s rights vs. Federal rights. I hope they understand that both the State and the Fed are governments. The entire concept of giving State’s the rights is to close the degrees of separation between the people and government so that the people have (theoretically) a greater voice impacting their lives.
Having said that, the State is not some “favorite child” nor should it be viewed as such. It’s just as likely to take our rights away as the Federal government. The point is, not everything should be a State’s right.
It seems to me that the libertarian view that Torch subscribes to isn’t actually what the Constitution stands for. I hate to take it to this level but, perhaps its time to search for a different country than trying to redefine this one? Maybe go back and start a nation built on the Articles of Confederation.
Who keeps the State’s in check if you afford them full reign on whatever it is that you want them to do? Are we even really a nation at that point or more like the European Union? Just some random afterthoughts…
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