The Case Against Ron Paul

The Case Against Ron Paul: Should a Libertarian Support the Repeal of the 14th Amendment?

Amendment XIV, 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.


1. Introduction
It is not an overstatement to say that the 14th Amendment, ratified in after the Civil War in 1868, marked a fundamental shift in the relationship of the federal government to the governments of the states. This shift has led to decisions in the Supreme Court the framers of the Amendment probably never envisaged, such as Brown v. Board of Education and Roe v. Wade.

The 14th Amendment was intended to restrict the power of the states. Its aim was to stop southern states from using the law to oppress their new black citizens. Each clause in Section 1 – Citizenship, Privileges or Immunities, Due Process, and Equal Protection – directly or indirectly blocks the states from treating those within their borders in certain ways.

Here I’m just going to focus on the Privileges or Immunities clause and the Equal Protection clause. I’m going to argue that libertarians should be staunchly in favor of these two clauses. They should favor the latter clause as the Court has traditionally used it. They should favor an invigorated reinterpretation of the former as an alternative to the states’ rights rhetoric some libertarians currently use. To the extent Ron Paul uses such rhetoric, he should not be considered a friend to libertarians.

2. Equal Protection
The Equal Protection clause requires states to guarantee “equal protection of the laws” to persons within their jurisdictions. Concisely, this means states may not apply one set of laws to some group and another set to a different group. For example, states may not set different penalties for white and black criminals. Without the 14th Amendment, a state like Georgia could establish whites-only schools – it would not even have to provide formally equal schools to its black citizens!

I’m not sure how a libertarian could be against this clause, or something like it. The libertarians I’ve known are not egoists: they genuinely want to increase the freedom of everyone. At a minimum, the Equal Protection clause ensures that if liberty is going to be restricted, it can’t be restricted selectively. The majority in a state cannot limit liberty without limiting its own liberty. This provides an additional check on majority power, and thus enhances personal liberty.

Of course, the 14th Amendment expands personal liberty at the expense of each state’s liberty to determine its own laws. But for a libertarian, this has to be a worthy trade off. Libertarians care about individual liberty, not the liberty of governments. Otherwise, any restriction on individual liberty could be justified as a way of increasing “the liberty of the government” to run people’s lives.

As something of a libertarian myself, I don’t even mind the Supreme Court’s use of the Equal Protection law to strike down separate but equal schooling. This requires accepting that the “equality” of “equal protection” has a substantive and not merely a formal dimension to it. That is, it does not require states to apply one rule to everyone, but to ensure – to some reasonable degree – that the law does not burden some groups much more than it burdens others. The emphasis here is not only on equality, but on the idea of protection. This perception of equality, fundamental to the existence of civil society, is what must be protected.

3. Privileges or Immunities
This clause of the 14th Amendment was quickly emasculated in the infamous Slaughterhouse Cases. It prohibits states from using the law to “abridge the privileges or immunities of citizens of the United States.” Constitutional scholar Randy Barnett has argued that this clause, combined with the 9th and 10th Amendments, adds up to what he calls “a presumption in favor of liberty.”

There’s no need to recount Barnett’s argument here. The idea of the presumption in favor of liberty is that, when liberty is to be restricted, government – any government -- has the burden of proving why such a restriction is reasonable and necessary. Moreover, the principle applies to a restriction of any liberty, including those not enumerated in the Bill of Rights itself.

Rather than empowering states at the expense of the federal government, Barnett’s argument empowers individual citizens. Taken seriously, the presumption in favor of liberty would stop governments from pursuing practically all of the projects libertarians currently object to, such as the so-called “war on drugs.” But it would not allow, say, Arkansas, to conduct its own intra-state war on drugs, either. The citizens of Arkansas would be as free as the citizens of any other state, an outcome one might think libertarians should favor.

The privileges/immunities of U.S. citizens may include only the most important and basic rights, like those contained in what classical liberals often call our “natural liberty.” Thus, it may not be the case that according to this clause each state would have to provide its citizens precisely the same set of liberties as every other state.

At the same time, as Barnett points out, a restored version of this clause might very well achieve the same outcomes for liberty the Court has more recently pursued through other means (like the Due Process clause) in cases like Griswold v. Connecticut and Roe v. Wade. For example, in Griswold, Connecticut’s law prohibiting the sale and use of contraception was overturned. A presumption in favor of liberty could justify overturning such a law, which, as the Court found, could not be justified on any basis Connecticut had offered in its favor. However, without the 14th Amendment, nothing would stand in the way of states taking importance choices away from American citizens.

4. Conclusion
Ron Paul does not like the 14th Amendment. In his response to Lawrence v. Texas, he decries the Court’s reliance on an “imaginary” constitution in its decision to overturn anti-sodomy laws. He claims, “The State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards.” But if Barnett is right, the Constitution does not give Texas this right. The presumption in favor of liberty requires Texas to justify its anti-sodomy laws against the privileges and immunities of its citizens.

I hope most libertarians are against anti-sodomy laws simply on principle. Why some of them support Ron Paul, who favors such laws as long as a militant Christian minority in a state can get enough votes in the legislature, is mysterious to me. Perhaps they think that in their comfortably blue state, the local government would not try to prohibit sodomy, birth control, or abortion. But this is a remarkably self-serving attitude, one that confirms some of the left’s worst prejudices against libertarians.

Rather than supporting oppressive proposals for expanded states’ rights, libertarians ought to support genuine rights for all individuals, regardless of what state they happen to reside in. They should support the 14th Amendment and not Ron Paul.