Still a Ron Paul Fan?

December 7th, 2009

I wrote briefly about the Congressional amicus curiae brief [pdf] in support of the petitioners in McDonald v. Chicago when it was submitted.  We saw a great deal of support from both sides of the political spectrum, but one signature was notable for its glaring omission: Ron Paul.

I'd been wondering about that, and Howard Nemerov was able to get a statement from Dr. Paul's office:

Congressman Paul’s DC office said he didn’t sign the brief because he believes that it interferes with state’s rights, whose policies shouldn’t be dictated by the federal government.

Let's get a few things straight here, people.  First off, states do not have rights. Like any other government, they have powers that are delegated to them by the people.  Only people have rights.

Second, the 14th Amendment does not conflict with the 10th, and in no way does it interfere with the agendas of individual state governments.

Some background:

The 10th Amendment has undergone a bit of a renaissance over the last year.  The Federal government has long been over-reaching with a rather loose reading of the Interstate Commerce Clause.  Though the Rehnquist Court had long been keeping abuses of the clause in check, a schism took place in the 2005 case Gonzales v. Raich.

In Gonzales, the Court ruled that the cultivation of marijuana for personal, medical use was illegal under Federal law, even if it was legal under California law.  Despite the fact that "commerce" was in no way involved, the Court found that the clause applied because of "the likelihood that the high demand in the interstate market will draw such marijuana into that market."

In his dissent, Justice Thomas lamented,

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce.

The Gonzales decision was closely followed by the Court's disastrous reading of the Takings Clause in Kelo v. City of New LondonReaction to the Kelo verdict was swift, and a movement began to revive the ailing 10th Amendment.

I'm very supportive of the initiatives taken thus far.  Dr. Paul deserves credit for his work in bringing attention to the issue.  I agree with many of his positions.

But I can't understand how a man who calls himself a libertarian and a "Constitutionalist" opposes an originalist reading of the 14th Amendment.

The concern now, as it was in 1868, is that the 14th Amendment somehow violates the principles of federalism and stands in the way of self-determination for states.  This is a stilted reading of the matter.  As the Paragon Foundation brief [pdf] explained:

Federalism is central to this Republic and dearly important to amicus curiae. However, federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights. States cannot sacrifice those rights on the altar of federalism.  p. 9

As Justice Brandeis wrote in his dissent in New State Ice Co. v. Liebmann,

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

The 14th and 10th Amendments can coexist gracefully. States still have power to pursue their own economic and social policies, but by no sane interpretation can they infringe on the basic rights of citizens enumerated in the Bill of Rights.

This idea goes back to the framers. Madison believed that the federal government was ultimately responsible for the protection of our rights, even when the states failed in that regard.  An early draft of the Bill of Rights had the passage, "no state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases."

In Federalist #51, he wrote,

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.

The 13th, 14th and 15th Amendments were drafted to rectify such abuses.  An Amendment guaranteeing liberty to all Americans fits right in with Madison's ideas.

Federalism did change a bit during Reconstruction, and I for one am not the least bit sorry that it did. We needed clearer, more specific protections of civil rights than were given by the Framers.  Akhil Amar has pointed out that the contours of the 2nd Amendment (among other civil rights) changed between 1789 and 1868. It was an organic, logical evolution, to which I doubt any of the Framers would have objected.

Madison's proposal for a Bill of Rights stated,

In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

(…)

It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people's liberty.

The Constitution grants certain powers to the Federal government, which are clearly defined and should be narrow in interpretation.  The remaining powers of government belong to the states, which are entitled to a great degree of sovereignty in their policies.

However, the ultimate sovereign in our system is the individual.  Federalism stops where the Bill of Rights begins.  The 14th Amendment, particularly the Privileges or Immunities clause, is the guarantor of that idea.

Regardless of one's position in the libertarian spectrum, the ultimate idea is the same: when there is a confict between state interest and individual freedoms, the rights of the individual stand paramount.

Could someone please explain this to Ron Paul?  I find it sad that Harry Reid, Arlen Spector and Olympia Snowe have shown more interest in civil rights than he has in this case.

8 Comments
  1. Josh wrote, running Mozilla Firefox 2.0.0.20 on Windows XP

    I think you have a valid argument about individual rights being paramount, but you don't adequately address the problem of positive rights.

    If we could limit the definition of rights to those negative ones addressed in the Bill of Rights, that would be one thing, but there are plenty of statists who claim health care is a right and point to the 9th Amendment as proof.

    Where does it end?

    If states are bound by the 14th Amendment to recognize every whim of the federal government, so long as it is cloaked as a "right," then what is to stop the federal government from continuing on its current path toward absolutism?

    Observe the ways in which the Voting Rights Act (specifically Section 5) has been perverted to thwart the will of voters nationwide in order to achieve racially-biased or party-specific electoral outcomes.

    That is not federalism at all.

    I believe that Ron Paul shares my own fear that when people believe their rights come from the federal government, they are less likely to question that government, for fear of having their rights revoked.

    These days, legitimacy of rights through federal benevolence is a dangerous precedent indeed.

    Comment on December 7, 2009 @ 1:12 pm

  2. Erik wrote, running Mozilla Firefox 3.0.15 on Ubuntu Linux

    If states are bound by the 14th Amendment to recognize every whim of the federal government, so long as it is cloaked as a "right," then what is to stop the federal government from continuing on its current path toward absolutism?

    Bingham was clear that the 14th Amendment applied to the Bill of Rights, ending with the 8th Amendment.

    "Implied rights" are a different matter, and would be addressed under different criteria. That is not the issue here.

    Comment on December 7, 2009 @ 2:10 pm

  3. Josh wrote, running Mozilla Firefox 2.0.0.20 on Windows XP

    Erik,

    I disagree. All of the first ten amendments are considered to be part of the Bill of Rights.

    And as the author stated above:

    "[W]hen there is a conflict between state interest and individual freedoms, the rights of the individual stand paramount."

    If you are like many people who read the Ninth Amendment to say that people have a "right" to free health care, or free housing, or whatever, where exactly does that end?

    When talking about the limits of the federal government's power, "implied rights" or "positive rights" are very much an issue.

    Comment on December 7, 2009 @ 2:48 pm

  4. Erik wrote, running Mozilla Firefox 3.0.15 on Ubuntu Linux

    According to Howard, the 14th Amendment was meant to protect, "the personal rights guaranteed by the first eight amendments of the United States Constitution." If we're to stick with a literal reading of the history and intent, the 9th Amendment would not be an issue.

    While there have been troublesome readings of the 9th Amendment in the Supreme Court (Roe v. Wade springs to mind), it's unlikely that we'll see a verdict confirming some "right" to health care, employment or housing. In any case, it's not part of the matter at hand, and will not flow from an originalist reading of the Privileges or Immunities clause.

    The government's powers should be strictly limited, but one of its responsibilities is to protect the liberties of its citizens. That is the idea and intent of the 14th Amendment.

    Arguing against its protection because of something that might happen is a startling argument.

    Comment on December 7, 2009 @ 4:01 pm

  5. Josh wrote, running Mozilla Firefox 2.0.0.20 on Windows XP

    Not trying to be startling. But when you give the federal government an inch, they always take a mile.

    Comment on December 7, 2009 @ 6:21 pm

  6. Erik wrote, running Mozilla Firefox 3.0.15 on Ubuntu Linux

    Well, after some digging, I got a few answers. Ron Paul doesn't think that the Bill of Rights applies to state governments. According to an article he wrote in 2007:

    The First amendment acts as a simple check on federal power, ensuring that the federal government has no jurisdiction or authority whatsoever over religious issues. The phony "incorporation" doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution, was used once again by a federal court to assume jurisdiction over a case that constitutionally was none of its business.

    He's not alone in ignoring the Reconstruction amendments. Writing in support of the Kelo verdict, to the 10th Amendment Center stated,

    What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government. Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

    Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

    I also received a very odd email stating that Dr. Paul is pushing for an amendment to rescind the 14th Amendment guarantee of birthright citizenship. Why? Because illegal aliens abuse it.

    While that's true, the abuses of some do not justify altering something that was written to ensure that Americans could not be divided into separate classes of landed gentry and serfs. There are other ways to combat the problem of illegal immigration that don't involve such drastic measures.

    The impression I'm getting is that the "tenthers" have their specific agenda, of which Dr. Paul is a figurehead, and anything that might run counter to it must be attacked.

    Have I suddenly become a waffling moderate, or has the whole libertarian movement gone crazy?

    Comment on December 7, 2009 @ 8:06 pm

  7. subzero wrote, running Mozilla Firefox 3.5.8 on Windows XP

    "Have I suddenly become a waffling moderate, or has the whole libertarian movement gone crazy?"

    It's kind of contradictory to say that one should go to the state legislators to protect one's freedom to gamble, and then to Washington to lobby for a first amendment issue, like say, state election campaigns financing.

    It doesn't make sense. The states will not be experiments of democracy under your interpretation. The Federal government should deal with National Defense and the issues enumerated an Article 1, Section 8. Supporting this position is not "crazy".

    Comment on March 5, 2010 @ 12:20 am

  8. Erik wrote, running Mozilla Firefox 3.5.8 on Ubuntu Linux

    The difference is that there is no enumerated right to gamble. I can think of no utterance from any of the Framers that implied anything of the sort.

    There is a spot in Leviticus 16 that discourages games of chance. In Leviticus 19, it states that cattle should not be left to graze with other types of cattle.

    Why do I bring this up? Because Ron Paul's been trying to sneak his heifers into my yard the last couple of nights. I don't know what he's up to, but it's very annoying.

    The thing is, cows are made of beef, and government spending is made of pork. According to Deuteronomy 14, we're not supposed to eat pork. Ladies and gentlemen, it does not make sense!

    It is the job of a just government to protect our natural rights, but those rights are not made of beef. That does not make sense!

    Therefore, you must acquit.

    Comment on March 5, 2010 @ 3:15 am

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