In his defense of the constitutionality of Lochner v. New York against the critics in the last issue of Claremont Review of Books, professor Richard Epstein invokes the Privileges and Immunities Clause of the 14th Amendment. He claims that this clause, "properly read,"
places a huge limitation on what the states can do to citizens … the state may retain huge powers to initiate legislation, but all that legislation (and its enforcement) remain subject to a judicial override on constitutional grounds.
It is not immediately clear what professor Epstein means by the "proper reading" of the clause, but that obviously is not the "reading" of the framers of the 14th Amendment, because they thought this clause placed a very slight, and not a "huge," limitation on the state police power. As Raoul Berger has demonstrated, the framers adopted a very narrow, common-law meaning of the Privileges and Immunities Clause, as pertaining to "life, liberty, and property." The meaning of those guaranties was just to prevent the states from arbitrarily denying to the newly freed blacks their elementary rights to jury trial, due process of law, right of settlement, and freedom of movement, as well as the right to acquire property. In other words, to prevent the discrimination against them in elementary civil-rights issues, protected by the Civil Rights Act of 1866. It is very important that all social and political rights, including suffrage, were explicitly excluded from the privileges-and-immunities guaranties (at least by the understanding of the framers of the amendment).
Epstein seems to completely ignore this, attributing to the named clause a very broad — actually a sweeping — meaning, which was given to it not by the framers but by the activist judges many decades after the 14th Amendment was (supposedly) ratified. Professor Epstein goes even so far as to assert that the Supreme Court could strike down any state law it finds unconstitutional, just on the basis of the Privileges and Immunities Clause. Both Epstein and David Bernstein (whose views from the book Rehabilitating Lochner he is defending) seem to accept the so-called doctrine of incorporation, invented in 1897 and later exploited abundantly by progressive lawyers to undermine the strict constitutionalism. According to this doctrine, the 14th Amendment was meant to apply all (or most of) the restrictions from the Bill of Rights to the states. It puts the federal institutions, primarily the Congress and the Supreme Court, in charge of policing and supervising the states in regard to their laws and regulations. This is obviously a very attractive doctrine for anyone who wants to advance centralization of power, because it gives a blank check to the federal government. Astonishingly, libertarians have been marching in lockstep with the progressives in advertising the beauties of this doctrine throughout the 20th century. Another libertarian devotee of the incorporation doctrine, Randy Barnett, even castigated Congress for not using its alleged 14th Amendment powers vigorously enough to reign in the intolerable anarchy created at the state level.
But, this is not the end: it seems that Epstein believes not only that the 14th Amendment "incorporated" the Bill of Rights, but also classical liberalism to boot, by giving to the federal Supreme Court a right, moreover — a solemn duty — to police the states and enforce libertarian "individual rights" against them. For example, he thinks that the 14th Amendment gives to the federal government a right to block any state law that infringes on "free competition"! Where is this "constitutional" protection of free competition coming from? Obviously, not from the 14th Amendment. It can only come from reading a particular and historically unjustified libertarian meaning into the amendment.
How Progressives Rewrote the Constitution
This reading of libertarian ideological idiosyncrasies into the constitutional text is not an exception — it is quite widespread in Epstein's works. In his book How Progressives Rewrote the Constitution he argues, for instance, that the Social Security Act was unconstitutional, not because the federal government was not given by the Constitution the right to do such things, but because the theoretical concept behind the act was inconsistent with Hayek's political philosophy!
However, the 14th Amendment did not "incorporate" the Bill of Rights, let alone classical liberalism; it just constitutionalized the Civil Rights Act of 1866, with its very limited purpose of protecting blacks against discrimination in the matters of the most basic civil rights, as unequivocally and repeatedly stated by the framers. And that's all. Epstein and Bernstein, of course, do not like this limitation and propose instead to accept a peculiar libertarian version of the living-Constitution doctrine by which we could short-circuit the cumbersome rigidity of the text and actually read our own philosophical preferences for "liberty" and "contractual freedom" into it (nowhere to be found in the original context), in order to justify judicial policy making along preferred libertarian lines.
For example, Bernstein defends Lochner by claiming that it cannot be compared with Roe v. Wade, because it allegedly did not invent any new right; it just applied the "liberty of contract" that was, according to him, already contained in the 14th Amendment. However, this "liberty of contract" is again a judicial fabrication, invented in 1897 by the Supreme Court in the case Allgeyer v. Louisiana. The definition of "liberty" that the framers of the 14th Amendment adopted was a very narrow common-law notion of "security of person," or as Blackstone memorably said it "power of locomotion, of changing situation … without imprisonment or restraint of the person." Not a word about "liberty of contract," which is, as a "constitutional" category, no less phony than its famous progressive counterpart, the "right to privacy," used to justify Roe v. Wade (or for that matter, Epstein's "free competition").
However, it gets even more peculiar than this. Namely, Epstein's libertarian zeal appears to abate significantly when it comes to the federal government. For example, he considers the Sherman Act and the entire complex of federal economic regulations known as "antitrust laws" to be perfectly constitutional, although those laws apparently infringe on liberty of contract no less than the famous New York labor law. The antitrust laws ban, among other things, voluntary price discrimination and give the authority to the courts and federal agencies to stop contractually agreed-on mergers and consolidations they consider "anticompetitive." So, when the state of New York legally invalidates the freely agreed-on contracts that allow workers a longer-than-ten-hour workday — that's an awful infringement on individual liberty of contract; however, when the federal government punishes Standard Oil for receiving freely agreed-on price discounts from its large customers, the railroad companies, that's just an innocent (and perfectly constitutional) exercising of authority to regulate commerce.
An especially worrying sign is that both Epstein and Bernstein agree that the proper role of the Supreme Court should be not only to impose classical liberalism from the bench but also to arbitrate in the disputes over whether any particular law was in the "public interest," or instead motivated by selfish rent-seeking. To qualify as "constitutional" before this new libertarian Supreme Court, not only would a law have to be in harmony with "economic liberty" and "freedom of contract"; it could not be a product of rent seeking and lobbying for private benefit. How is this supposed to be decided by the courts? What special knowledge or comparative advantage the nine unelected and politically well-connected lawyers in Washington DC have in deciding ethical and economic issues like this? However, our authors think that the Supreme Court justices do have such an advantage, and they seriously argue that the New York state labor law struck down by the Court in Lochner was unconstitutional because it was a form of labor-union rent seeking!
Moreover, Epstein even asserts that "courts have recourse to a wide variety of techniques to isolate those actions that are intended to advance the interest of Madison's factions from those which seek to generate common improvements shared by all." Thus, the Court is given — apart from the "standard" task of protecting libertarian values, "freedom of contract," "free-market competition," Hayekian insights into the superiority of individual versus government knowledge, and similar philosophical tenets — the right to determine what is and what is not in the "public interest," to boot.
One wonders why we need politicians, elections, and legislatures at all if the judges can replace them so nicely with their "wide variety of techniques" for detecting the "true" public interest. If judges really do have such a comparative advantage over politicians in deciding these matters, why not change the name from "Supreme Court" to "Supreme Ethical Council," as Antonin Scalia once suggested? Or perhaps the "Central Planning Board"?
Both Epstein and Bernstein try to brush aside the critiques of their paradigm as just a matter of their critics' "excessive devotion to democratic institutions" (sic). But this conceals the main problem: their own acceptance of the Leviathan state and growing centralization of power. The "libertarians of the 14th Amendment" accept the most basic premise of the progressive political philosophy — the idea that politics is about who is going to control the central government and impose his own values on the rest. They are prominent expositors of a very curious theoretical synthesis that Gene Healy called "libertarian centralism": the idea of bringing about libertarian revolution by taking over central government from the progressives and using it for "good," instead for "bad" purposes — for example for imposing judicial laissez-faire instead of judicial abortion and gun control.
The main issue, therefore, is not "excessive" versus "proper" democracy, as the authors imply, but "who should govern" — the nine unelected philosopher-kings, who can strike down any state law they don't like (but not the federal laws, which they usually just rubber-stamp) or elected representatives of the people? It's as simple as that. Libertarian centralism, dreaming about the great laissez-faire revolution by the judiciary, is in its philosophical implications just another form of "enlightened" despotism.
And contrary to what Epstein and Bernstein say, the Founding Fathers were not concerned so much about the tyranny of the majority as the tyranny of the minority. After all, their main worry, which eventually prompted them to adopt the Bill of Rights, was how to limit and keep in check the minority in central government and protect the sovereignty of the several states. Most of the Founders were devoted to democracy no less than the people our professors criticize. They went even so far as to assert that state legislatures have a right to nullify unconstitutional federal laws. Jefferson and Madison in their Kentucky and Virginia resolutions of 1798 developed the doctrine of nullification as a "rightful remedy" (Jefferson) for the cases "when even the Supreme Court betrays us" (Madison). They knew that the only way to protect liberty was not to strengthen the central government and convert the rulers into "enlightened despots" who believe in libertarianism but to divide power, to decentralize it as much as possible. As Gene Healy said, "Jefferson understood what the followers of the new libertarian orthodoxy ignore: that who makes the decision is often as important as what is ultimately decided."
Previously published at Mises Daily.