Tuesday, July 12, 2005

Reply -- hnn: Palmer on federalism

reply to Palmer here reprinted, in case hnn deletes it:


Do the "rules" of this board prevent disingenuous replies or outright libel? I guess not.

P-dog says:
What I find remarkable is the eagerness to resist restrictions on state power emanating from the federal courts when they are (or could be but didn't, as in the Kelo case) issuing opinions that are well grounded in the text of the constitution.
But they are not well-grounded in the "text" of the Constitution. This is mere question-begging. Palmer here snidely implies that hmm, there must be some sneaky reason we are "eager" to "resist restrictions" on state power. P-boy here snidely implies that those who are in favor of federalism--you know, like all educated libertarians until the modern "improved" generation--are "eager" to want states to be able to hurt people. This vile slander is inappropriate in this forum.

If one thinks the "text" that reads "privileges or immunities of citizens" automatically and obviously means citizens' rights, as implicit in the.... Bill of Rights, despite the history of the 14th amendment, then he must have a crystal ball. I mean, they left the word "rights" out because ... ahhh ... .well, who knows, but they MUST have meant rights, anyway. And, umm, just because this language tracks language in a previous bill that clearly referred to a narrow set of rights, not a broad set, well, let's just ignore that. And look, just because they listed due process in the 14th amendment, even though they didn't need to if the privileges/immunities clause incorporated the one from the 5th amendment--let's just ignore that too.
Rejecting the 14th Amendment on the grounds that it isn't part of the Constitution is absurd; we currently do have a federal Constitution.
P-dog may be right; but none of us are basing our argument on this claim. Now the brilliant Gene Healy does make this quite respectable argument:
Given that the Fourteenth Amendment was never legitimately ratified,we’re freer to adopt a narrow construction of the amendment than we would otherwise be. By giving a narrow reading to the Fourteenth Amendment (which was not a product of constitutional consent), courts keep faith with the Tenth (which was). From this perspective, the post-Civil-War Court’s crabbed construction of the Privileges or Immunities Clause in Slaughterhouse might well be justified as a blow for originalism.
That is, we can't ignore the 14th, but recognizing its problematic origin, perhaps when the federalism principle of the 10th butts up against the alleged erosion thereof in the 14th, we give the nod to the 10th. Just a thought.

But our arguments don't rest on this. We assume the 14th is part of the Constitution. So why does Palmer use this straw man?
We should appeal to it when the appeal is well grounded in the text and likely to advance liberty.
Well now, finally an unambiguous normative assertion about what "we" "should" do. I welcome a rigorous defense of this, coupled with some explanation why it is obvious why anyone who disagrees with it is an apologist for slavery, bigot, racist, anti-semite--am I leaving any out?--the kind of outrageous, disgusting smears that Palmer regularly trots out on his smearblog as the kneejerk response to anyone who does not toe the Cato line. But eve if this mere assertion were true, it again rests on the notion of appeals "well grounded in the text." Of course, this is what is in question, so it is question begging, as well as disingenuous.

What exactly is P-dog saying? Is he saying everyone (or just libertarians?) should (?) "adopt" a given argument for construction of the Constitution, as long as someone can plausibly say "it is well grounded in the text", so long as in one concrete case it increases liberty? What exaclty is he saying? That it does not matter what the Constitution really means? That the original limits on the feds are elastic? Subject to their discretion? Or only ... if they are libertarian judges? What?
Similarly, the guarantees to citizens of the several states in Article IV of "all Privileges and Immunities of Citizens in the several States" is in the federal (and unamendd) Constitution, as is the guarantee of a "Republican Form of Government."
HO HO! So here we come to the fall-back. Notice Palmer first tries to imply that the 14th amendment's "privileges or immunities" clause somehow includes some broad set of rights, supposedly largely coextensive with those express or implied in the Bill of Rights (well, only, er, some of htem--not those in the 10th, or the 27th amendment, or the unratified 1st article of the 12 articles submitted... or not in the 3rd, or 2d, amendment, and not parts of the 5th, and, er, um, also not the due process clause of the 5th, because, you see, that's already in the 14th).

Then his fall-back: why, we never had federalism at all! You see, FROM THE BEGINNING, the feds had the power to review state laws for all the rights in the Bill of Rights, because of the original privileges or immunities clause (even though this is not in the power-graning section of the constitution) or the Republican form of government clause--but let's ignore the fact that, say, the original privileges or immunities clause was adopted in 1789, when there WAS NO BILL OF RIGHTS (that came in 1791), so how in the world could the earlier P-I clause include those rights, as is argued that the later one does... or does the earlier P-I clause incorporate, oh, I don't know, some other unspecified set of rights? So that the feds have strictly enumerated powers... except here--they had the power to enforce whatever rights they wanted to against the states, no definition or limits at all. Even though the States would never have consented to a federal Constitution that granted such power.

Nice. Convenient. Let's chuck all we know about history and context, and just read the bare words on paper, in the most favorable way as possible for (centralized) libertarianism... then just "assume" we can somehow, someday, find enough libertarian judges to interpret it the same way...

Oh, it's so beautiful, I want to cry.
The 13th, 14th, and 15th amendments are in the federal Constitution.
Interesting, that--curious, if the 14th Amendment's due process and/or privileges or immunities clause are so fricking broad, then presumably so is its equal protection clause. You know, that one that prevents states from treating classes of citizens differently, from discriminating? So just curious, mind you, but if that one is so broad--wouldn't you THINK it would have prevented States from discriminating against BLACKS and WOMEN in the FUNDAMNETAL FRICKING RIGHT TO VOTE? Well, I would. But lo and behold, we needed the 15th, and 19th, amendments, to give blacks and women the right to vote. Hmmm, interesting. I guess the "equal protection" clause of the 14th ain't as broad as it seems to a college libertarian on first reading, is it? Maybe, just maybe, the same is true of the privileges or immunities clause? Nahhh--can't be. Anyone who thinks so is a Christian or an anti-semite (or is there a difference?).
If a state were to deny a person the legal right to vote on the grounds of race, would Mr. Anthony favor the intervention of the federal courts or of the federal Congress?
You see, there is actually constitutional grounding for such an intervention. There happens to be a constitutional amendment to this effect--the 15th. We don't deny this. Strangely, as I noted above, the equal protection clause of the apparently very broadly construed 14th does not cover the right to vote; but no matter. Just b/c the 15th does grant a right to vote to blacks, does not mean that the privileges or immunities clause of the 14th includes the rights implied in the bill of rights. These are separate matters. Palmer need not caricature our view; we are actually very clear and upfront about it. We admit some constitutional limits on states, and deny others. For some reason, for those libertarian centralists who are apparently not bothered by the idea of a non-limited federla government, anyone who thinks federal supervisory power over states is limited must be a fascist secretly yearning for states to permit mobs to lynch blacks once more.

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