Privileges or Immunities: Do You Have To Choose One?

New at Reason: Jacob Sullum browses the table of a pair of sidewalk booksellers whose case against the city of New Orleans ended in a much-needed victory for the First Amendment. Next question: Can this victory be expanded into a more general defense of your right to do business without mindless government interference?

Comments

[Kevin Carson]

I'm glad these people are free to do business, and I don't want to spoil it by quibbling. But technically, the First Amendment doesn't apply to the state of Louisiana or any of its municipal corporations. After all, it starts out "CONGRESS shall make no law...." Strictly speaking, the book sellers were protected by whatever provision of the Louisiana state constitution guarantees freedom of speech.

I'm sure most people would respond, and understandably so, who gives a rat's ass about whether state or federal courts are appealed to, so long as freedom of speech is upheld? But the incorporation doctrine (that the federal Bill of Rights is applied to the states through the Fourteenth Amendment) is itself a creation of the centralizers who have turned the states into little more than administrative districts.

Is decentralism just a secondary value to be tolerated only when the states and localities do what they're "supposed to"? A federal government that's strong enough to protect our civil liberties by exceeding its delegated powers today will use the precedent to take away our rights tomorrow.

[twistedmerkin]

I was surprised when I first read about this in Hit and Run. I noticed when I read the article that the guys are from New York. Did they try selling their books on the sidewalk and were shut down? Or did they try to get a permit first? If it was the latter, then they need to be instructed on how to do things down here. It's best not to wake the sleeping giant (city government). It moves very slowly when aroused. A better policy is to assume that whatever you want to do is perfectly ok, and challenge any one who says that it isn't. This usually works surprisingly well. I mean, I doubt that hooker down the street requested a permit from the city, but her sidewalk business seems to be booming.

[Josh Wexler]

I am the bookseller in question here. We did try for the permit first (for about a year and a half). I was aware of the City's bureaucratic reputation for frustrating entrepeneurs (my girlfriend/business partner is a native New Orleanian), however it would have been quite a risk to do otherwise. New Orleans' PD is capricious at best in these matters, and Orleans Parish Prison is not known for its Southern Hospitality. By the way, the bureaucrats in New York aren't much more helpful than their johnny-reb counterparts.

[Hale, Jr.]

Josh, we sympathize. And we're fighting with you, if only in spirit. Glad to have you in our little room here. Please, do visit often. You might learn a lot.

Kevin Carson (first post), you're making us yearn again for that "loose federation of states" that the framers intended. Not fair, playing with our dreams that way.

Unless ... unless, of course, you've got some ideas? Hmm?

[Kevin Carson]

Hale, Jr.:

I don't know--are you aware of any promising secessionist movements? Or maybe we could get Ron Paul or somebody to introduce an amendment restoring the Articles of Confederation.

[Hale]

We could. And he probably would, too. It's just that he always seems to be the only Congressman voting for such things. I wonder why.

[Anonymous]

Um, the 14th Amendment is generally interpreted as extending 1st Amendment (and all constitutional) protections to all levels of government. So there.

[Anonymous]

(same anon poster) And now I noticed Carson already brushed that off. It's a unique interpretation. Can the state grab your guns too? I always thought state and local governments could choose to be LESS restrictive on constitutional freedoms than the feds, but never MORE restrictive.
Somehow I doubt keeping the states from infringing on your rights to freedom of speech, religion, etc. is what turned them into "administrative districts."

[Kevin Carson]

Anon:

The Bill of Rights was universally understood to have been inserted in the Constitution to restrict the powers of the new federal government. The states were already perfect polities with their own preexisting constitutional restraints. The so-called "anti-slavery constitutionalists" who appeared in the burnt-out district in the 1830s had some idiosyncratic views of the Bill of Rights applying to the states, but the evidence that that was the understanding of the ratifiers of the XIV Amendment is weak to nonexistent. The first federal court ruling to apply the First Amendment to the states was Gitlow v. New York in the 1920s, and that decision still refused to overturn New York's "criminal syndicalism" statutes on the basis of the First Amendment.

A central government is more likely to override libertarian initiatives in the states than to protect civil liberties against the states. I repeat: a centralized government powerful enough to protect your kids from school prayer is also powerful enough to give you John Ashcroft. At some point, at whatever level of government, you have to stop appealing to ever higher levels of government to protect you. Otherwise, you end up appealing to the Galactic Empire to protect you from the UN.

[sparrow]

Cops also busted a 6-year-old Florida girl for selling lemonade on her driveway without a city permit. Avigayil Wardein, a brown-haired, 6-year-old who just lost two front baby teeth, had set up a lemonade stand at the end of her driveway, but she was forced to stop selling the lemonade and cookies. Naples police arrived on the scene, and shut down the business because it had not paid the $35 permit fee.

Full story: http://www.naplesnews.com/03/06/naples/d947013a.htm

[Moshe]

Wow! That's truly a barefaced shame (that post about the little girl above.) The girl wasn't by any chance wearing a Star-of-David armband, was she?

[Hale]

Kevin, you wrote: "A central government is more likely to override libertarian initiatives in the states than to protect civil liberties against the states."

What's that gonna do to the The Free State Project? See: http://www.freestateproject.com/index.htm

[Anonymous]

the states were "perfect polities." right. and a good number of them allowed slavery. other than that, perfect.

[Anonymous]

plus, the federal government can't use its powers to "take away our rights tomorrow" if those rights are constitutionally protected, and the government is held to its constitutional limits.

[the pessimist]

Like The Hulk, any government will sooner or later break out of its constitutional limits.

[David Nieporent]

Kevin, your interpretation of the fourteenth amendment is... creative. While Democrats like to pretend that the second amendment doesn't mean anything, you want to pretend that the fourteenth doesn't, either. "Decentralism" may be a "value," but it isn't a legal principle. Our system is federalist, not "decentralist."

Our current system takes away our rights, not because our federal government is "powerful," not because John Ashcroft is evil, but because most people believe that the role of the government -- government in general, not any one particular level of government -- is to solve all the problems of "society," rather than to protect our rights. Eliminating the incorporation doctrine wouldn't change that; it would just remove one check upon the power of state governments. That's not going to make us better off. Neither is "decentralism." States, as history shows, are just as effective in oppressing people as the federal government is.

[H.Hefner]

I like your analysis, LL. But I would've used a different terminology. A more accurate distinction would be one between a "free" society and a "restrictive" one.

Still, neither description is entirely true of "our" society. We can still go bungee-jumping, mountain climbing, have m?nages ? trois, go sailing, etc., etc, (I'm sure you can come up with your own examples) without needing someone's permission.

[LL]

A perfect illustration of the difference between a "free" society and a "permissive" one. In a free society all is allowable unless it demonstrably harms another. In our permissive society and legal system all is barred unless specifically permitted, usually by payment of tribute and receipt of a government occupational or business license.

[J.Leno]

What I can?t understand is why New Orleans decided to ban book sales. Have you ever been to New Orleans? People are drinking on the sidewalks, taking their tops off, urinating on the sidewalk -- but, hey, we don?t want anybody reading on the sidewalk.

[Kevin Carson]

David Nieporent:

My reading of the Fourteenth Amendment comes from studying the debates in the Thirty-ninth Congress, and the debates in the party press (and a few legislative debates that have been preserved) during the ratification period. I also did some extensive research on "privileges and immunities" "equal protection of the laws" and "due process of law" as terms of art, going back through a lot of English history and case law, the colonial charters and state constitutions, etc.

The original understanding of the XIV was simply that no state would discriminate on the basis of race or place of birth in the civil liberties of its residents. No substantive content, in terms of (say) free speech rights, was mandated. Only that whatever free speech rights were recognized for whites, if any, should be equally recognized for blacks. The amendment defined no substantive rights, but only mandated the procedural guarantee that whatever rights were recognized, would be recognized for all irrespective of race.

Check out Raoul Berger, *Government by Judiciary*, or Charles Fairman, "A Reply to Professor Crosskey," 22 University of Chicago Law Review (1954-55).

Substantive due process and substantive equal protection were certainly key doctrines of "antislavery constitutionalism" from the 1830s on; but scholars like ten Broek and Crosskey have failed to make a convincing case that that understanding (I call it "Shiite constitutionalism) had any effect on the original understanding of the ratifiers.

The widespread acceptance of an ahistorical doctrine in the law schools today is beside the point. What happened, happened. Actual history doesn't disappear into a memory hole in keeping with current ideological preferences.

[Kevin Carson]

Anon:

By "perfect polity," I simply mean an independent political community which possesses all the attributes of sovereignty.

I wasn't aware that a state's immoral policies (like slavery) brought it under the jurisdiction of the U.S. Congress. Even after the ratification of the Constitution, the states were as independent of Congress outside the federal government's delegated powers, as Sudan is today. The federal government exercised delegated powers that the peoples of the several states granted it; they retained their absolute freedom of action otherwise, just as before ratification. The people of the southern states were morally culpable for their practice of slavery, but it did not alter their political independence of outside control on that issue.

And by the way, the southern states relied on the federal government to protect slavery through such measures of the morally repugnant fugitive slave laws. Many in the New England states would probably have supported secession of their own states, to avoid complicity in that crime. Free juries in the northeast were notorious for refusing to return runaway slaves to their masters (which is the reason for the new Fugitive Slave Act of 1850, which did not require due process of law). This is another example of how the libertarian deviations of New England were suppressed by a pro-slavery central government.

[David Nieporent]

The original understanding of the XIV was simply that no state would discriminate on the basis of race or place of birth in the civil liberties of its residents.

Kevin, your argument is that the original understanding of the 14th amendment was procedural -- equal protection for all races, in whatever rights the states chose to give. That's fine, as far as equal protection goes -- but you've apparently simply decided that the due process and P&I clauses didn't mean anything at all.

[Kevin Carson]

David:

Not at all-- I've been drinking too heavily just now to tell you what I decided they mean, but I have a draft chapter I wrote several years ago on common law terms of art in the XIV Amendment, and it has a lot of stuff on those clauses. I'm in the process of rekeying the ms on state sovereignty onto the "Articles and Essays" page of my website, and I'll skip to the XIV amdt. chapters next.

One thing I do recall, though, is that the Levellers (perhaps by influencing the constitutional views of Eighteenth Century commonwealthmen and hence the anglo-republican understanding of the Revolutionary generation) had a huge effect on the American understanding of "due process." I hope to have the relevant section in the "terms of art" chapter up in the next month or so.

Fair enough?

[Waite Julie Piper]

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