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.
