A Note on Libertarianism, Federalism, and the Constitution

This is just to reiterate a message I've kept up constantly in this blog.

The 10th Amendment to the U.S. Constitution reads as follows:

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.

When you read this well known passage, think of the following term in conjunction with it: "police power." According to Wikipedia, police power is the power of the state to regulate power, especially for reasons of morality and public welfare. From a libertarian perspective, the state's police power should be a necessary evil at best.

The 10th Amendment implies, first, that the federal government does not have any kind of general police power. The only powers it has are those specific ones enumerated in the rest of the Constitution.

But notice, the Amendment does not say the states have unlimited police power, either. Certainly, that possibility is compatible with the 10th Amendment, but not as strongly as some seem to think. After all, the Amendment says the powers are reserved to the states or to the people.

So state legislatures have broader powers to regulate life than the federal government, but not unlimited power. Some powers are reserved to the people. "The people" can't reasonably be read as simply a reference to a democratic majority, either. After all, the Amendment already refers to "the majority" in each state. Who else do the powers reserved "to the states" belong to, but to the democratic legislatures in each of those states?

Unless the 10th Amendment is stupidly redundant, states do not have unlimited police power. But where is the line drawn? Just what does the federal Constitution have to say about what states do to their citizens? This question and others like it show how weak and incomplete a strictly originalist interpretation of the Constitution really is.

According to the Supreme Court (in Lawrence v. Texas), Democratic majorities do not have the power to impose a single moral vision on all of the citizens of a given state. Thus, one of the main justifications for the use of a state's police power is removed. The state's dominion to regulate the lives of its citizens is diminished.

State... power... diminished. Power left to... individuals. Sounds pretty good and libertarian, right?

In the end, the question of how much police power should the states have? has an easy answer for libertarians. The right answer always is: as little as possible. Individuals should have power, not the states or the federal government.

I don't mind saying that my interpretation of the Constitution is driven at least in part by the value I place on individual liberty. At the same time, Randy Barnett argues that my interpretation, or something like it, can be well supported by a more originalist reading of the document. And I also agree with Justice Kennedy's eloquent opinion in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Kennedy's opinion echoes Ronald Dworkin's distinction between semantic-originalism and expectation-originalism: the Framers were not always aware of the implications of the principles they placed in the Constitution. They expected them to have certain implications (the death penalty is not cruel or unusual), but we may discover additional or even contrary implications (the death penalty is in fact cruel and unusual.)

The meaning of the word "cruel" need not change from one generation to the next. What may change is the discovery (based, for example, on advancements in psychology and other sciences, as well as advances in moral philosophy) that a practice that was formerly accepted actually fits within the category of the cruel.

How does this fit in with the Constitutional limits of state police power? It means that a justification for a use of police power thought to be sufficient may in fact turn out to be inadequate to justify limiting individual liberty to the extent that use requires. It means that one can be a Constitutionalist while simultaneously holding that the Constitution itself imposes drastic limits on the use of state police power.

It means one can be a libertarian and love the Constitution at the same time.

But this is not the Ron Paul approach to the Constitution. Ron Paul's approach reserves to each state an almost unlimited police power -- power to prohibit gay sex, abortion, and birth control; to bring the Ten Commandments into court rooms; to mandate segregation in buses and schools.

This is not, and never has been, a libertarian agenda. This is tyranny, but on a small scale. On a scale some Ron Paul supporters are comfortable with, living blue state lives, far away from the places in which state legislatures would use their expanded police power most effectively, if and when Ron Paul gave them the green light to do so.

That is why I have never supported Ron Paul, whether he is a racist or not. I have deeper, moral objections to his agenda. If that means his libertarian posse will put me on their hit list along with Tom Palmer and David Boaz, so be it.

I will still be right and they will still be wrong.