Why is the Incorporation so controversial?

Economics Political Theory
1

Many historians point out that incorportation of the Bill of Rights through the 14th Amendment was a very substantial change in the nature of the relationship between the Federal Gov’t and the States. But why is that the case? Didn’t the Constitution limit States’ rights already? For instance, Article I, Section 10.

So, why is the incorporation such a radical change?

Also, it seems to me that the fact that the States are virtually not limited in any way as to their powers regarding the individuals should bother libertarians. It is true that we worry about the Fed. Gov’t obtaining too much power, and the States are a very efficient way of controlling that (plus, Federalism makes pragmatic sense), but what about the worry to limit the States’ power?

2

First of all, even though you capitalize “State”, I have to assume you talking about the actual individual states that make up the “United States”.

Second of all, the focus of Austro-libertarians tends to be the State (period)…which includes a skepticism of and an ultimate rejection of the government of states too.

3

The Bill of Rights only applied to the Federal Government until 14 was passed.

The State were free to infringe any of the bill of rights beforehand.

A1. Sec. 10 more gives powers that the Federal government has that the state will not retain (make war, treaties, etc.)

4

I understand that this was a change, as in the case of any Amendment, but why was this a radical change, a change in the principle of the relationship between the states and the Fed. Gov’t?

Tenth Amendment says that the states retain all the rights except those forbidden by the Constitution. Which includes whatever the Constitution said at the time, but can also include whatever the Constitution forbids to the states in the future amendments.

5

Third, there’s a few things you (and Aristophanes, evidently) would be interested to learn about the 14th Amendment.

6

You’re such a pretentious douche JJ. I hope you choke.

7

You stay classy, phany!

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  1. I think the individual States should be capitalized.

  2. All the more surpsing that Austro-libertarians are not concerned about the States’ abuse of individual rights.

  3. Where in the video does he address my specific question? I’ve heard and read about the Amendment not being ratified before,

9

I agree, as they’re proper nouns. But what does that have to do with the word “states”?

They aren’t?

He doesn’t address your specific question, it’s a lecture about the 14th Amendment specifically. I just thought you’d be interested to know the reality of it before you get engaged in discussions and start assessing things based on what we’re all taught in government sponsored history class, that’s all.

10

  1. When we are talking about the specific states, it makes sense to me to capitalize them, just like when we are talking about a specific president, we should write “the President”, not “the president”. But, since I am an ESL person, I may be wrong.

  2. In my experience, people in the Mises community who are minirchists devote much more time to discussing the dangers and oppression of the Federal Government than of the State governments. In my everyday experience, however, I have experienced more violation of my rights from the state I live in.

  3. Thanks for the video. I knew, however, about the problems with ratification, etc. So, let me explain my question:

I have heard that the major problem with the incorporation in the 14th Amendemnt is that it reverses the polarity of the relationship between the States and the Fed. Gov’t. The way the relationship was conceived, the States were the sovereigns who created the Fed. Gov’t for the purpose of creating a union, but the Government was always subordinate and secondary in power to the States. That is why it does not make sense to say that the Government should have a power to interfere in the States’ affairs that have nothing to do with the Union — for instance, whether or not a specific state enforces a particular religion, violating the individuals’ natural freedom of religion.

Now, my question is: what about the clause that says that the States are not allowed to coin money or make separate treaties with foreign governments? Isn’t that a case of the Federal Government telling the States what they may or may not do, individually? Especially with money coinage. It makes sense from the point of view that we want to create a union and the union should have the same common currency (a fallacious argument, possibly, from the economic point of view, but that’s a separate issue; I am saying that the rationale makes sense, even if the logic and economic argument are flawed). But then the sovereignty of the States flies out of the window already in the First Article.

As an aside, isn’t this also a problem with delegation of power? I have heard the argument that the government may have only those rights that the citizens have delegated (which is why the government cannot have a right to re-distribute resources), and the Federal Gov’t specifically has only those rights that the States have delegated. But then how can it have a right to prevent an individual state from coining money? No states had that right to begin with, so they could not delegate it to the government.

Also, the fact that the States delegate the right to coinage to the Fed. Gov’t does not automatically mean they lose those rights. If I hire a guard and delegate to him my personal right to defend myself, I still retain the right to defend myself when the guard goes to the bathroom.

So, one could say that the States contract out those rights. They alienate them, for the purpose of entering the Union, since they cannot retain those rights (as the argument goes) and be the members of the Union at the same time. But then, the same argument could be made about the 14th Amendment: the States who have ratified the Amendment alienate their rights to enforce religion for the purpose of remaining in the Union.

Is there a logical step missing here? Is there a reason why a right must be delegatable in order for it to be alienable? (I.e., one could say that the States have a right to coin money, which allows them to delegate it and alienate it. But the States cannot delegate a right to enforce religion, since the Fed. Gov’t is forbidden that right by the Constitution, which also means they cannot alienate that right. But why is that the case?)

In fact, the same can be said about the 13th Amendment. The Fed. Gov’t should have no control over whether a state has slavery in it or not. And yet, the States alienated their rights to make this decision. So, what’s the difference with the incorporation and the 14th Amendment?

Now, I may agree with Tom Woods that this is unwise to allow the Fed. Gov’t control over the States’ decision to enforce religion because of the slippery slope (even though I don’t like the idea of the States enforcing a particular religion locally or otherwise having a freedom to violate individual rights), but that’s no different from saying that it is unwise to make the Fed. Gov’t the sole entity having power to coin money. I.e., it’s not really a legal argument.

11

Here is an interesting article on the topic, with Clarence Thomas rulling on the 14th Amendment:

The general background is here: http://blogs.wsj.com/law/2010/06/28/is-his-gun-control-concurrence-justice-thomass-finest-hour/

The specific analysis is here: http://www.wnd.com/2010/07/176409/

The way I understand it, basically, in his dissenting opinion, Thomas argues that the 14th Amendment is necessary for the preservation of the Union and the Constitution, since it protects the legitimacy of the individual States’ government, whose source is the legitimacy of the Federal Government and the Constitution. Since the States derive their moral power to government from the purpose of protecting people’s rights (“…and to protect these rights the governments are formed”), when the States fail to do so, they lose their legitimacy. Therefore, it is a responsibility of the Federal Government and the Constitution, as the preservers of the Union, to make sure that the States protect individual rights.

So, Thomas’s argument answers to some degree the problem of the 14th Amendment making the Federal Gov’t a sovereign. The Federal Gov’t is still not a sovereign; its act to enforce the Bill of Rights in the individual States is an act of Union preservation, just like its power to regulate interstate commerce through forbidding the States to impose tariffs on each other.

It’s definitely a very interesting argument that may be appealing (in principle) to a libertarian, because in it, Thomas says that the governments’ (State and Federal) and the Constitution’s legitimacy is not to be taken for granted.

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Right, as I said, I agreed with that. When you are talking about a proper noun, English convention says it should be capitalized. This is why you always see “Alaska” and North Dakota" capitalized. But when you are just talking about “the states” as in the collection of named territories, that is just a common noun. It’s like saying “the presidents”. You wouldn’t capitalize that.

Like I said, if you’re talking about the specific entity “the State”, it would seem to make sense to capitalize that. But you kept talking about “Alaska” and North Dakota" and all the other states and calling them “the States”. That doesn’t make sense.

And your last sentence before my last post was incredibly confusing, as you were making a statement that “the individual states should be capitalized”…which has literally nothing to do with the word “state”, so it has no relevance to the topic of capitalizing the word “state”, yet that is what we were talking about. (And you capitalized the word “states” in that declarative statement.) In other words, we were talking about the notion of capitalizing the word “states”, and your response was “I think the individual States should be capitalized”…something which wasn’t even mentioned, and which doesn’t explain why you would capitalized the word “states”.

a) Who are these minarchists in the Mises community?

b) I woudn’t be so sure about which tier of government has violated more of your rights. Sure, the more local the government the more visible the violation is (especially because they’re the ones who do the initial enforcing.) But I’m not so sure you could really calculate an accurate comparison. Either way though, I’m not sure what difference it makes. Oppression is oppression, and government is government. If it wasn’t a “state government” or “local government”, it would still be an arm of some other government. It’s highly unlikely that there would be a federal government and then nothing else.

The “problems with ratification” as you call them weren’t my main point. I think of greater relevance is the understanding that the 14th Amendment was not necessarily intended to “apply the Bill of Rights to the states”.

Bingo. And that is something Tom spends a decent amount of time on in the lecture. That was largely my point. Did you even watch the video?

Again, did you watch it? Look into any of the sources he mentioned?

That’s an interesting angle. Haven’t really thought about that.

That’s not a congruent analogy for serveral reasons, but I’ll just focus on the Constitution.

Article 1, section 8:

“The Congress shall have Power […] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;”

Article 1, section 10:

“No State shall […] coin Money;”

These are the kinds of questions which lead one to the understanding that Lysander Spooner arrived at almost 150 years ago. Keep along these lines and you’ll begin to see why no constitution is valid, no matter how you write it.

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That’s interesting…considering the states existed before the Federal government and the Constitution, and allegedly provide the legitimacy for those concepts.

Where does it say it is within the power (let alone “the responsibility”) to “preserve the Union”?

You mean a minarchist or a constitutionalist…as that is the type of person who would need to find some way to reconcile all these inconsistencies. (If they were being intellectually honest, of course.)

14

Sorry, I made a mistake. I meant to write the opposite: that the States are the source of the Federal Government’s and the Constitution’s legitimacy. (I’ll answer the rest later.)

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Re:States: I think the specific 50 States should be capitalized. Just like, when we are talking about Obama and Medvedev, we should write “Presidents”, as in “the current Presidents of the US and Russia are jerks”. The same way it makes sense to capitalize the Colonies when referring to the specific 13 Colonies.

Re: minarchists: E.g., people like Tom Woods or Don Livingston. They talk about nullification, etc., but I am yet to hear of some mechanism to limit a state’s power. But I agree, this biase is somewhat irrelevant; plus, it’s probably a product of what lectures I happened to have listened to.

Speaking of Tom Woods, yes, I listened to his lecture (to some parts twice), and, unless I missed something, he did not really address my question. In fact, he said that if angels were residing in the Supreme Court, he would have no problem with the 14th Amendment. I.e., he thinks it is simply unwise to allow the Federal Gov’t such a level of control, not that there is a legal problem. I may agree with him on the wisdom argument, but I am still interested resolving whether there is a philosophical legal problem.

I agree that there is significant doubt over what the intent was. (Incidentally, Thomas addresses that question in his opinion as well; of course, his argument is neither exhaustive nor definitive.) There are three rational possibilies (i.e., I am ignoring the possibility that the Congress intended that the 14th Amendment guarantees a “right” to a minimum wage or health care or education):

  1. The Amendment intended that the States must respect those rights that the US citizens obtain vis-a-vis the Federal Government. I.e., their constitutional rights. That would include a very narrow set of rights, such as a right to travel between the state lines or access to Federal land or Federal ports.

  2. The Amendment intended that the States must respect specifically the rights from the Bill of Rights.

  3. The Amendment intended that the States must respect fundamental human rights (i.e., natural rights).

Tom Woods seems to be saying something like 3, but that actually seems to be the most inclusive category. The category 2 does not make any sense, since it seems very arbitrary. (Plus, 9th Amendment recognizes that natural rights.) Category 1 is a very interesting choice and one that would seemingly not present a problem in terms of the polarity of sovereignty. The problem is: I don’t think it’s true. The historical context of the 14th Amendment was Black Codes whose attempt (as it was argued) was to reverse the abolition. The argument was that despite being granted the full citizenship by the 13th Amendment, the freemen still had their fundamental rights violated by the States. Whether or not we agree with what was actually happening, that seems to be the rationale for the 14th Amendment.

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I don’t mean by “preserving the Union” something like “keeping a state from seceding”. I mean something like guarding the Union (through national defense) and preserving the existing union’s cohesiveness (hence the Commerce Clause and hence the alienation of the States’ rights to coin money, make independent treaties with foreign nations, or create titles of nobility). I agree that guarding the Union’s moral and legal legitimacy is a novel logical step. I need to think about it. (And maybe read Federalist Papers.)

Yes, of course only a minarchist would worry about all of the above. But even for an anarchist the question of recognizing that the government’s legitimacy is not a priori is a good development. Of course, a minarchist might argue that the legitimacy of the government lies in its protection of the citizens’ rights, while the anarchist would (correctly, in my opinion) argue that the legitimacy comes from consent, which you never have with any government (hence,the moral need for anarchy).

17

Tom Woods is a minarchist?

Can’t say I’ve heard of Don Livingston, which would lead me to believe he’s not a member of the Mises community.

18

One of the arguments of the south leading up to the Civil War was state sovereignty. The south argued the federal political subdivision had no authority or legitimacy to march an army on state soil. The north responded arguing states could not lawfully secede. Once the Civil War was over the south said, okay you won we shall come back to work taking up our seats in Congress, etc. The great irony of the Civil War was the north said.. whoa… you folks did in fact secede and can’t come back. The south may have lost the war but they won the argument.

In your example of Article 1, Section 10 what would be a lawful remedy by the federal political subdivision for a state coining money before incorporation? Economic sanctions, coercion via invasion, expuslsion from the union, or other? After?

19

Well, in that case, the assertions that the Civil War destroyed the States’ sovereignty are unfounded, no?

The thing I don’t understand about the incorporation is: what difference does it make whether the 14th Amendment incorporated the Bill of Rights specifically?

In other words, first of all, it did incorporate something. It does forbid the States to oppress some kind of individual rights. I don’t know whether that extends to a right of jury or a right to abortion or a right to bear arms. But individual states cannot commit genocide, for example. So, that already is enough to ask the question about the reversal of sovereignty.

(You are right, it’s not clear from the Constitution what the consequences of the idea that the States may not coin money are. It could be that the States merely willingly gave up that right. If a state exercised its right to coin money, other states could have excluded it from the Union, cut down its participation in the Congress, or whatever. Also, if you read the argumentation of the defenders of the Southern States’ right to secede right around the Civil War, they use words like: “The States willingly gave up some of their rights. Now they are taking them back.” So, at least in these people’s minds, this “giving up of rights” was not the same as the 14th Amendment. But then, the same is the case with the 13th Amendment.)

Also, I don’t really understand the outrage of some anti-incorporationists about the 14th Amendment. For example, in this paper, Laurence Vance agrees that

if the Fourteenth Amendment incorporates anything it incorporates the Civil Rights Act of 1866, which was passed over the veto of President Johnson. This was the view of virtually every member of Congress, Republican or Democrat, who participated in the debates on the Fourteenth Amendment. Senator Trumbull, the draftsman of the bill, stated that the first section of the Fourteenth Amendment was “a reiteration of the rights as set forth in the Civil Rights Bill”. […]

The author quotes someone about what rights the Civil Rights Act gave to the freedmen:

In the first section of the Civil Rights Act Congress has given its interpretation to these terms [privileges and immunities], or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right “to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings
for the security of person and property”
[quoted in Berger 1989, p. 40]
.

At the same time, the author argues against the Supreme Court taking the Kelo case, since the 5th Amendment does not apply to the States; it was never the 14th Amendment intent to incorporate the Bill of Rights.

But so what? The 14th Amendment did provide for the right to hold property – a right which the government had violated with the imminent domain policy in the Kelo case. So, what difference does it make if the Federal Government enforces the right to hold property or the 5th Amendment?

The same goes for those who criticize McDonald vs. Chicago case when the Court rulled that the 2nd Amendment was incorporated. So, if it wasn’t incorporated, then what? I would say that a right to own a gun is a fundamental right, because it’s an extension of a right to own property. Why would the anti-incorporationist have the Court not examine this case? The same goes for the anti-sodomy case, in which the Court declared it unconstitutional for Texas to poke its nose into somebody else’s bedroom.

Which brings me to Tom Woods. The reason that I called him a minirchist is that he engages in what Jeffrey Rogers Hummel calls “constitutional fetishism” in his review of Tom Woods’ PIG book (the same goes for the author of the article about Kelo case):

Chapter 6 boldly declares that “the Southern states possessed the legal right to secede” (p. 62). Here Woods lapses back into constitutional fetishism, of a particularly silly form. Why should any libertarian care one whit whether secession was a legal right? The vital, unaddressed question is whether the southern states had a moral right to secede. With respect to evaluating the American Revolution, do we ask whether it was legally justified or whether it was morally justified? If the secession of the slave states was truly immoral, than of what possible import was the legal right? On the other hand, if they indeed had a moral right to leave the Union, so what if doing so was illegal? Only a legal positivist would let the legality determine the morality of the act.

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Wow, that’s a pretty dishonest review. Just because someone fails to mention a moral justification—which, I’m not even sure Woods did, I haven’t read that book—it doesn’t automatically mean he doesn’t believe there is one. And it certainly doesn’t mean he believes “the legality determine[s] the morality of the act.” That has to be one of the worst straw men I’ve ever seen.

What Hummel is literally saying is “Look! This guy pointed out that what they did was legal! And he didn’t even mention a peep about it being moral! Legal positivist! Constitutional fetishist!”

Give me a break. Obviously in a history book any historian worth his salt is going to try to refrain from moral value judgements and stick to the facts. And this guy is pissed off because Tom Woods simply offered the facts about legality and refrained from going down philosophy boulevard…so much so that he decides to straw man Woods’ position and throw out labels as accusations. What a joke.

If you’d like a rebuttal to Hummel, see here:

Hummel on Woods’s Politically Incorrect Guide to American History