Queer Eye for the Fourteenth Amendment

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom Report--www.freecolorado.com

Queer Eye for the Fourteenth Amendment

by August 21, 2003

I finally figured out why so many commentaries, political cartoons, and the like have referenced the television make-over show, Queer Eye for the Straight Guy. (In fact, I learned of the show's existence through the editorial pages, though I have since come to appreciate the reasons for its popularity, having broken down and watched an episode.) The show has freed us to use the esthetically interesting word "queer" in the context of homosexuality without looking like jerks.

In my 1969 Random House, the term is defined in various ways in the following order: "strange or odd from a conventional viewpoint... of a questionable nature or character... not feeling physically right or well... mentally unbalanced... (slang) homosexual." How can we now use the term according to its more traditional meanings, given its popular association with five lovable fellows whose mission in life is to help hetero men look cool and get laid?

Unfortunately, the Constitutional debate over gay sex cannot be solved with the intuitive clarity displayed by the "fab five" when talking fashion or food. For purposes of this article, I will take it for granted that laws punishing homosexuals for having sex, such as the one in Texas struck down recently by the U.S. Supreme Court, are bad. (Readers who disagree are hereby sentenced to watch Queer Eye reruns until they lighten up.) I mean, even the most dyed-in-the-wool homophobes and anti-gay crusaders can admit that at least homosexuals should not be arrested and thrown into jail for having sex with consenting adults in the privacy of their own homes.

The debate arises over the proper application of the U.S. Constitution in the matter. One side, championed by Justice Kennedy, holds the Bill of Rights, plus the Fourteenth Amendment, protects a wide range of individual liberties, including the right to have sex without the police busting down your door and dragging you off to jail. The other side, defended by Justice Thomas, agrees the Texas law is stupid, but argues it is a matter properly left to the states, not the federal government.

This exploration of the matter was prompted by an August 20 letter from Larry Ruane, who writes: "I would have agreed that the Supreme Court did the right thing in striking down the Texas sodomy law, which you write about at http://www.freecolorado.com/2003/08/shorts14.html... until I read this: http://www.lewrockwell.com/kinsella/kinsella11.html. I would love to know if Kinsella's excellent argument changes your mind, as it did mine."

The short answer is "no," Kinsella didn't change my mind: I think the Supreme Court made the right decision. However, all along I have recognized the difficulty of the case. In my critique of Senator Santorum, I write, "Note here that Santorum is NOT arguing for state-level democracy in order to preserve federalism and the separation of powers. Such a position is intellectually defensible. Instead, Santorum is making the case that the *state* has 'rights' to control peaceable people." Later, I discussed Thomas' dissenting view, which seems to be sympathetic to federalism.

And in the notes mentioned by Ruane, I write, "If the debate is between limiting federal powers and protecting individual rights, ultimately libertarians will come out ahead." At this point, I had already read Kinsella's essay, and clearly he is on the side of "limiting federal powers." My point was that libertarians have reason for optimism simply because this debate exists in America today. Both goals -- limiting federal power and protecting individual liberties -- are important aspects of the libertarian project.

If we conclude the federal government cannot properly interfere with states' sex laws, then surely we must also conclude the federal government cannot regulate intrastate commerce. If we can restore genuine federalism by properly limiting the commerce clause and reinvigorating the Ninth and Tenth Amendments, we will have made profound improvements. We'll just have to fight for the right to have sex at the state level.

On the other hand, if we conclude the Fourteenth Amendment, in association with the Bill of Rights, offers robust protection of individual rights against state-level tyranny, then we might conclude that states can no more limit the rights of speech or self-defense than they can ban gay sex. Either way, libertarians stand a chance of making serious progress.

One of the things libertarians attempt to figure out is which is worse: the risk of federal tyranny or the risk of state-level tyranny. If we allow the federal government to interfere with sex at the state level, does that imply a too-powerful central government that can also trample the rights of citizens? But do we dare risk run-away state-level power?

I think it's possible to have the best of both worlds: a federal government with the power to check the tyranny of state governments, but with little power to do anything else. I think this goal fits very well with well-defended legal positions that regard the Bill of Rights, as well as the Fourteenth Amendment, as robust protectors of individual rights. If we can maximize individual rights and minimize the power of politicians, libertarians should be quite happy.

Kinsella and Barnett really are discussing two different things. (Randy Barnett's brilliant essay is the subject of the notes Ruane cites.) Kinsella's case turns on severely limiting the scope of the Fourteenth Amendment (more on this below). Barnett simply takes the Fourteenth Amendment for granted and then discusses provisions in the Bill of Rights. Barnett's analysis is relevant to matters of federal law, not just state law, so it's interesting whether or not one believes the Fourteenth Amendment may work with the Bill of Rights to trump state impositions.

Barnett's work poses a fundamental challenge to self-described conservatives who argue against "activist" courts. Barnett argues the real "activists" eviscerated the Bill of Rights during the FDR era by constructing the false doctrines of the "presumption of constitutionality" and "fundamental rights." Such doctrines completely ignore the Ninth and Tenth Amendments, and they take power away from individuals and give it to politicians. Thus, modern-day "conservatives" who argue against "activist" courts in fact deny the original meaning of the Bill of Rights and "actively" suppress it! This is revolutionary stuff, and future scholars may well look back at Barnett's work as the return to American liberty.

Indeed, opposed to the "presumption of constitutionality" -- which in practice means Congress can do nearly whatever the hell it wants -- Barnett posits a "presumption of liberty." Obviously, this interpretation of the Bill of Rights works in concert with a (properly) limited view of the commerce clause, which too has been abused to rationalize all sorts of non-enumerated legislative acts. Barnett achieves what Kinsella is looking for -- the limitation of the federal government to those few powers specified in Article I, Section 8.

Whether the Fourteenth Amendment applies the "presumption of liberty" to matters of state governments as reviewed by the U.S. Supreme Court is another matter entirely. Barnett seems to assume the Fourteenth Amendment does strongly protect citizens from state-level tyranny, but the matter is not central to his case. It's possible to maintain the "presumption of liberty" at the federal level yet argue the Fourteenth Amendment should be weak. So let's turn our attention to that matter, evaluating the claims of Kinsella and also of Colorado State Senator Mark Hillman.

Kinsella writes, "As Justice Scalia explains in a brilliant dissent, laws that limit so-called fundamental rights are given 'heightened' scrutiny." Thus, we find that Kinsella is locked in the FDR-era trap (the irony!) of "fundamental rights" (even though he adds the disclaimer "so-called"). As Barnett explains, once we adopt the presumption of liberty, this nonsensical distinction disappears.

Kinsella writes, "In the original federal scheme, the Supreme Court is free to overturn unconstitutional *federal* laws... the Constitutional scheme was *not* designed to empower the federal government, through its courts, to strike down repugnant state laws." Of course, some argue the Fourteenth Amendment changed all that. Kinsella discusses three reasons to doubt the Fourteenth Amendment's applicability.

"First, the Fourteenth Amendment was unconstitutionally ratified," Kinsella claims. For this point, he relies on the historical analysis of Gene Healy. Healy argues the Fourteenth Amendment was illegally adopted at three stages. First, "the Republican-dominated Congress refused to seat Southern representatives and Senators," and thus failed to get an actual 2/3 vote to send the amendment to the states. Second, the Republicans used martial law to force Southern states to support the amendment. Third, when New Jersey and Ohio "rescinded their previous ratifications," Congress simply ignored this and "declared the amendment valid." I do not have the expertise to be able to evaluate Healy's claims. What is obvious, though, is that the Fourteenth Amendment is established law today. After all, if we're going to argue the amendment was not properly ratified 140 years ago, we might as well go all the way back and discuss the adoption of the U.S. Constitution, which some regard as also illegal.

Second, Kinsella argues, neither the "due process" clause nor the "privileges or immunities" clause extend the protections of the Bill of Rights to citizens dealing with state governments. Unfortunately, Kinsella doesn't offer much of an argument here. Even if we discount the "due process" clause, the text about "privileges or immunities" as well as "the equal protection of the laws" can easily be read to severely limit the power of state governments to pass certain types of laws (such as those outlawing sex for a specified minority).

"Third," Kinsella continues, "the Fourteenth Amendment and the Incorporation Doctrine that it spawned have eroded the vertical balance of powers between the states and the central government that was put originally in place so that the states would serve as checks on central tyranny." Healy mentions the courts have even forced local tax increases to fund government schools. But could we not argue this was a corrupt application of the Fourteenth Amendment, by bad "activist" judges, based on FDR-inspired doctrines? After all, if we hold a more expansive conception of rights, which include economic rights, might we not argue the Fourteenth Amendment properly limits states' ability to tax? Healy addresses this counter, and he paints a very scary picture of the federal abuses possible under the Fourteenth Amendment. The main problem is that the "equal protection" clause might be interpreted to permit the federal enforcement of egalitarianism, or equality of outcomes rather than equality under the law. That is indeed a serious threat that could undermine all our rights. Offhand, though, I don't see any possible solution other than to contend for an individual-rights-respecting interpretation of the Fourteenth Amendment.

(I often contemplate what a better world we might live in had the Southerners preemptively freed the slaves. Obviously in that world we would not be discussing our Fourteenth Amendment.)

The legitimacy, meaning, and applicability of the Fourteenth Amendment are issues about which libertarians can reasonably disagree. It is crucial, though, that whatever direction the legal debate goes, libertarians work to maintain a deep respect for individual rights. The ideal situation is, "Heads individual rights win, tails political power loses."

* * * * *

Colorado State Senator Mark Hillman is a thoughtful political leader who genuinely cares about human liberty. Of course, that doesn't prevent him and me from disagreeing on any number of issues.

On August 17, Hillman released an article titled, Decisions turn constitution upside down. He begins, "Widespread confusion regarding the limits of Supreme Court's legitimate authority in our constitutional system is largely the result of the justices reaching beyond their duty to interpret laws and, instead, re-defining those laws -- i.e., legislating from the bench or 'judicial activism'." However, he grants "restraining the other branches from exceeding their defined powers is a chief responsibility" of the courts. If Barnett's "presumption of liberty" is a more accurate reading of the Constitution, then the federal courts should throw out the majority of federal laws that now exist. This isn't "activism:" it's following the Constitution. Hillman needs to come to terms with Barnett's argument that the "judicial activism" from the FDR era created the false doctrines of the "presumption of constitutionality" and "fundamental rights."

Hillman also writes, "In Lawrence v. Texas, the Supreme Court ruled that the 13 states which still prohibit sodomy may no longer do so, finding that the unwritten 'right to privacy' trumps the authority of 50 states [to] govern themselves." However, according to Barnett, Justice Kennedy relied on the "presumption of liberty," not a "right to privacy."

Hillman continues, "States have prohibited sodomy without interference by the Supreme Court since the Constitution was ratified, and no amendment to prohibit such laws has been added. It's illogical, then, to say such laws are unconstitutional." But this ignores the Fourteenth Amendment. Also, just because rights were ignored or violated in early America, doesn't mean they should be ignored or violated today. The Constitution does not create our rights -- properly it protects our pre-existing rights. Hillman argues in favor of the value of federalism, which, as I've noted, is a legitimate line of argument.

Hillman's comments are even more interesting with respect to the Supreme Court's decision about affirmative action: "One report said the lawmakers are considering legislation 'despite a recent U.S. Supreme Court decision' -- implying that legislation would be contrary to the court's ruling. A misinformed commentator elsewhere complained that such a law 'will be overturned... but not before thousands of our taxpayer dollars are wasted'." Hillman is right on the mark here. It's still possible to argue Colorado politicians should support affirmative action at the state level, but it's silly to argue they're violating federal rules by opposing it. (Unfortunately, Hillman failed to point out the underlying problem: the institutions of education in question are run by the government.)

Hillman concludes, "Finally, chew on this irony: these two rulings struck down laws enacted by democratically-elected legislatures but upheld the authority of an unelected college admission board to ignore the U.S. Constitution and treat people unequally because of their skin color. If that's not a constitutional crisis, I can't imagine what is." But wait a minute! On what Constitutional grounds may not people be treated unequally because of skin color? Isn't it the Fourteenth Amendment? If so, then Hillman needs to explain why he thinks the Fourteenth Amendment fails to protect the equal rights of homosexuals to have sex. I think Hillman is "cherry picking" legal explanations.

Hillman also seems to have a selective appreciation for "democratically-elected legislatures." Clearly he thinks the U.S. and/or Colorado Constitution prevents the Colorado legislature from banning gun ownership. Why the sudden appreciation of the ability of democracies to ban certain types of sex? Democracy is not inherently good; it is good only insofar as it helps protect individual rights from tyranny. All too often, democracy itself becomes tyrannical.

Clearly, though, Hillman is motivated by concern over an out-of-control federal authority. His defense of federalism is admirable. But a defense of federalism is not nearly so admirable as a defense of individual rights is. Surely the former is valuable only as a means to the latter.

* * * * *

The main reason I have held the Fourteenth Amendment in sympathy is that I've read Dave Kopel's work discussing how that amendment was used to empower blacks. (Kopel's work describes especially how the amendment guaranteed the rights of blacks to keep and bear arms.) No matter what one believes about the Civil War, it is impossible not to conclude the Southern states systematically violated the rights of black people and horribly oppressed them. In view of this history, both before and after slavery, it's more difficult to argue states are better protectors of liberty than is the national government.

Kinsella argues, "[T]he Due Process clause was never intended to 'incorporate' the rights in the Bill of Rights. It simply makes no sense that it would have: the Bill of Rights... was simply a safety measure to ensure that the federal government would not exceed its limited powers. The First Amendment itself says 'Congress shall make no law…'. How could a limitation on Congress's power be applied to the states?" But a reasonable reading of the Fourteenth Amendment gives individuals the same protections against state legislatures. More obviously, the First Amendment is the only part of the Bill of Rights to explicitly mention "Congress." In his book That Every Man Be Armed, Stephen Halbrook writes, "[W]hether based on the citizenship, due process, privileges and immunities, and/or equal protection of the law clauses, the legislative history supports the view that the incorporation of the First through the Eighth Amendments was clear and unmistakable in the minds of the framers of the Fourteenth Amendment" (146-7).

I have heard the claim that the Second Amendment was meant to restrict state governments from the outset. While this view is not popular, it nevertheless has some historical support. In reviewing an 1842 case in Arkansas, Halbrook notes, "Interestingly, all three judges [involved] seemed to assume that the Second Amendment applied to the states" (95). Halbrook also writes, "[T]he antebellum commentators were unanimous in their view of the right to keep and bear arms as an individual liberty... Furthermore, in finding recognition of that right in both common law and in the Bill of Rights, they were equally firm in their understanding of its protection from state and federal infringement alike" (93).

Along these lines, Kopel, writing in the Brigham Young University Law Review (1988, No. 4), quoting other sources, notes those who promoted the Fourteenth Amendment explicitly argued it would protect the right to bear arms against state restrictions. Furthermore, "[A]ntebellum constitutional commentator William Rawle... had argued in his 1825 treatise that the Second Amendment as written limited both state and federal government..." (1452).

If this line of analysis can be maintained, then Barnett's arguments with respect to the Texas case no longer rest on the Fourteenth Amendment -- the "presumption of liberty" has always allowed federal courts to limit state-level tyranny. Furthermore, the arguments of Kinsella and Healy against the Fourteenth Amendment would no longer seem relevant. The Fourteenth Amendment can be viewed merely as the explicit guarantee of pre-existing protections. (Of course, I suppose it's possible to argue that only state courts can properly find state laws to violate the Bill of Rights.)

The debate, though, points to the very different cultural understanding of liberty following the passage of the Constitution. Back then, people really believed "in their bones" they had natural rights that properly could be violated by no government. Today, we tend to argue about which level of government is likely to screw us the hardest. If one views rights as primary and government as derivative, it's only natural to view the Second Amendment as an expression of pre-existing rights, rights that cannot be suppressed by government at any level. It's also natural to think of the main conflict as between the rights of the individual and the power of the state, as opposed to the tension between national and regional governments.

Today, I think most people think of their rights as derived from legislation. Even those of us who think rights are primary tend to get stuck in modes of analysis that implicitly assume the primacy of legislation. There's something important in the "old" way of thinking that libertarians need to reemphasize. We have rights, and these rights cannot be usurped by some legislature or tyrannical majority. Any legal protection is merely a manifestation of our rights, not a delineation of them, and our justification of our rights is not restricted by what is granted legislatively.

At the same time, obviously we've made some major advancements since the old days. Slavery and its consequences have largely been overcome, though we still live in the shadow of that grave injustice. Today most of us aren't keen on locking up a couple of guys for having sex. Surely we can meld the best of the old with the best of the new and forge a modern defense of individual rights that can turn the fight over federalism and the Fourteenth Amendment into a decisive victory.

The Colorado Freedom Report--www.freecolorado.com