Posted on 12/29/2011 9:55:58 AM PST by mnehring
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 London. Reaction 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 conflict 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.
In McDonald V Chicago, Paul says that the States have the right to limit the 2nd Amendment under the 10th Amendment.
In Kelo, he believes again, the 10th Amendment trumps the 14th Amendment.
This belief that federalism is the end-all of rights is dangerous, especially when one like Paul takes it to the extreme and sides with States limiting fundamental individual rights. This is also reflected in Paul's abortion positions.
Ping of interest
What makes this even more bizarre about the pervert Paul is that there is one issue whereas he takes a counter approach and holds pretend individual rights higher than even so-called State’s rights, or a person’s right to association and that is the issue of homosexuality whereas the pervert Paul thinks that homosexual behavior must be treated as equal to heterosexual behavior and that individuals must be forced to treat it as such.
Of course Paul’s position on homosexuality is not Constitutional at all. It seems to me that he is being exposed as a complete phony when calling himself a Constitutionalist.
Read more about it at this link.
Well when you think about it: the Second Amendment is already a dead letter in places like New York State but at least with federalism you can make sure that the anti-Second Amendment tendencies of the north east are not imposed via Washington onto your states. That is the sort of thing that the Tenth Amendment is supposed to protect.
Except Paul is taking the opposite approach with his opinion of McDonald V Chicago. He is siding with Chicago’s right to ban ownership of guns stating that the 10th Amendment is trumping the 2nd. He is not protecting the 2nd, he is removing it as an individual right.
Kelo is also a major violation of the 4th & 5th Amendments, something the article doesn’t really address. Again, Paul fails the Constitutional test on that as well.
Outstanding.
Thank you very much for making me aware of this important piece!
Correction. It created a citizen small c when prior one was a Citizen Capital C of their various states. There are legitimate concerns with the Fourteenth Amendment but its new class of citizen actually does not trump or negate the original state citizen or sovereign citizen.
Just like the 16th was not.
Good point.
This is a great article.
Thanks!
I have a BIL that is snowed by this guy.
I want to pass this excellent article on to a number of friends around the country. But I don’t see an author to attribute it to.
Ah yes. Amendments are meant to clarify murky issues or adresses issues not mentioned in the constituiton, not to flat-out contradict the Constituiton. The Consitution said Congress may levy no direct tax, but then Congress went off and said in the 16th amendment “Oh yes we can!” Disgusting.
“In Kelo, he believes again, the 10th Amendment trumps the 14th Amendment.”
There can actually be a very reasoned argument, here.
The constitution has as a basic principal the understanding that the written law is invariably undermined as soon as it is written. Thus, the way to prevent this is by there being co-equal bodies of people that try to prevent such undermining.
The one we are most familiar with is the balance between the three branches of the federal government. But just as important, or even more important, is the never resolved federalism and anti-federalism balance between the federal government, the state governments and the people.
And this balance was ruined with the 17th amendment, the direct election of senators, which took away both any ability of the states to balance the federal government, as well as any ability the states had to protect the people from the direct, invasive involvement in their lives by the federal government.
Since then, the federal government has run “hog wild”.
Importantly, the “privileges or immunities” clause in the 14th amendment, resolved the other side of the argument, by allowing the federal government to intervene to protect the people from abuse by their state governments.
Now enters Kelo and McDonald. In McDonald, the SCOTUS for the most part looked at the 2nd amendment argument, to decide if arms are an individual or collective right, under the authority of the states. Yet finding that it was an individual right made it a “federal issue”, instead of a “state issue”. This was reinforced by Justice Thomas who did an extended and brilliant dissertation on “privileges or immunities” clause as well.
The trouble is that by finding for an individual right, the federal government is actually empowered, and power is taken away from the state governments.
The background for this is that, for many years, the gun lobby argued that arms were indeed a collective right, and a state issue, so that the federal government could neither control or limit guns at its level.
Even today, several states are trying to challenge this federal control in the other direction, saying that if guns and ammunition are made and used just within their state, that the federal government cannot limit or control it.
So in *that* case, the 10th amendment *should* trump the 14th amendment.
It’s a paradox. If we win recognition of more rights, we might lose more rights. But if the states are recognized, some states could win, and other states could lose.
How about the 10th trumping the 4th and 5th (which really isn’t addressed here regarding Kelo) or the 10th trumping the 2nd?
The 14th is a contentious issue however, no Conservative in their right mind thinks the 10th can trump the 2nd, 4th, or 5th.
Back to the top.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.