14th Amendment

Yes, the 14th Amendment Protects Economic Liberty

A reply to conservative law professor Kurt Lash.

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At the Library of Law & Liberty, conservative law professor Kurt Lash of the University of Illinois has published a lengthy, twopart negative review of my recent book Overruled: The Long War for Control of the U.S. Supreme Court. According to Lash, Overruled "is not a serious investigation of either the Constitution or contemporary legal theory."

I must say I was sorry to hear he didn't like it. But at least I can take comfort in the knowledge that a tenured professor of law felt compelled to use so many pixels trying to disprove my unserious little book.

Lash's complaint boils down to this: "Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment's Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights." According to Lash, the 14th Amendment offers no such protection. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.

The problem with Lash's view is that he's wrong on the history and wrong on the law. Lash's slipshod take on the 14th Amendment falls apart under scrutiny.

Let's start with Lash's claim that "the views and political make-up of the Congress that produced the Fourteenth Amendment made it extremely unlikely that they would produce a clause nationalizing the general subject of unenumerated civil rights in the states." According to Lash, the Republicans of the 39th Congress, who passed the legislation that became the 14th Amendment, went to great efforts "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights."

But that's absurd. None other than Republican Congressman John Bingham of Ohio, the author of the 14th Amendment's Privileges or Immunities Clause, openly stated that the 14th Amendment protects unenumerated economic rights against infringement by the states. "The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States," Bingham explained to the House of Representatives, include the "constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

To fully appreciate why protecting economic liberty mattered to the framers and ratifiers of the 14th Amendment, it's necessary to first understand the historical context that led to the amendment's creation. Here's the story in brief.

The 14th Amendment was drafted in 1866 and ratified in 1868. It was added to the Constitution in response to the mounting outrages then occurring throughout the former Confederacy, where state and local officials were, among other foul deeds, attempting to restore slavery in practice—though not in name—by imposing a tangled web of laws and regulations known as the "Black Codes." In Overruled I examine this historical period in some detail; for our purposes here, it's sufficient to say that, among other things, the Black Codes inflicted terrible harms on the economic freedom of the freedmen. The Black Code of Opelousas, Louisiana, for example, made it illegal for blacks "to rent or keep a house within the limits of town under any circumstances." That same ordinance required would-be black merchants and entrepreneurs to get the permission of white officials before they were permitted to "sell, barter, or exchange any articles of merchandise." Needless to say, such permission was not forthcoming from those racist white officials, who were in no hurry to see black residents enjoy any degree of economic liberty.

The Republicans of the 39th Congress watched these events unfold and determined to take action to better secure the freedmen's imperiled civil rights. That congressional action included providing explicit federal protections for the "local economic rights" of blacks suffering under the South's incipient Jim Crow regime.

The Republicans of the 39th Congress first took action in the form of the Civil Rights Act of 1866. In the words of Illinois Senator Lyman Trumbull, the moderate Republican leader who managed the act in the Senate, this legislation "declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness." Notice Trumbull's emphasis on federal protection for unenumerated economic rights, such as the unenumerated right to make contracts and the unenumerated right to enjoy the fruits of your labor (the very same unenumerated right mentioned by Rep. Bingham).

But don't just take Sen. Trumbull's word for it—read the actual text of the Civil Rights Act. It held that all persons born on U.S. soil were citizens of the United States and that all U.S. citizens "of every race and color…shall have the same right, in every state and territory…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 persons and property." Notice, once again, the emphasis on federal protection for unenumerated economic rights, such as the unenumerated right to make contracts.

Now recall Lash's claim that the Republicans of the 39th Congress sought "to avoid even the appearance of suggesting federal authority over the substance of local civil rights—including local economic rights." As the evidence repeatedly shows, Lash's position is nonsense.

Similarly, Lash fails to grasp the crucial relationship between the Civil Rights Act and the 14th Amendment. This relationship stemmed from the fact that certain leading Republicans in 1866 feared that Congress lacked the legitimate constitutional authority to pass a federal civil rights law in the first place. Their solution was to enact the 14th Amendment, which constitutionalized the Civil Rights Act and provided a solid constitutional footing for future civil rights legislation. In the words of Republican Congressman M. Russell Thayer of Pennsylvania, the 14th Amendment "incorporat[ed] in the Constitution of the United States the principle of the civil rights bill which has lately become law." The principle of that civil rights bill, as its text makes clear, included federal protection for unenumerated economic rights, such as the right to make contracts.

Republican Senator Jacob Howard of Michigan, who introduced the 14th Amendment in the Senate and then successfully managed its passage, made a closely related point. The 14th Amendment was needed, Howard explained in a widely reprinted 1866 speech, because the "mass of privileges, immunities, and rights" secured by the Constitution "do not operate in the slightest degree as a restraint or prohibition upon State legislation." According to Howard, "the great object of the first section of this [14th] amendment is, therefore, to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

What are the "great fundamental guarantees" and the "mass of privileges, immunities, and rights" which Howard said that the 14th Amendment was designed to protect from state abuse? For starters, Howard explained, they include the individual rights that were both mentioned and acknowledged in Justice Bushrod Washington's influential 1823 Circuit Court opinion in Corfield v. Coryell, in which Washington remarked that "it would be perhaps more tedious than difficult to enumerate" the full extent of the privileges and immunities of Americans. Despite the risk of tedium, however, Washington did specify a few, including, "Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." In short, things that "are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." Notice that Justice Washington included economic rights in his partial list.

But that was not the end of it. In addition "to these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their extent and precise nature," Howard said, after quoting extensively from Corfield, "to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution."

Which brings us back to Lash. In the professor's view, the 14th Amendment cannot be read to protect unenumerated rights. Yet Senator Jacob Howard, a leading Republican who played a crucial role in the amendment's passage, plainly discredits this view. According to Howard, the 14th Amendment compels the states to respect both "the first eight amendments" (enumerated rights) and other fundamental rights that "are not and cannot be fully defined" (unenumerated rights).

In short, the evidence all points in the same direction: The 14th Amendment was designed to protect a broad range of fundamental rights from state abuse, including the very sort of unenumerated economic rights that Professor Lash tries—and fails—to disparage.

Update: Read round two of my exchange with Professor Lash here.

NEXT: More Than a Hundred Human Rights Activists Arrested in China, Mexican Cartel Leader Escapes for Second Time in Twenty Years, Serena Williams Wins Wimbledon: A.M. Links

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  1. Yeah right. Everyone knows that the only rights we have are enumerated in the BoA, while Commerce Clause give the government unlimited power. Duh.

    1. *BoR*

      1. Our rights are enumerated by Bank of America? Yeah, okay. You’re probably right.

      2. All your rights is belong to Bank of America. 😉

    2. You were right the first time. Banksters like BoA determine what we can and can’t do more than an old piece of paper. Why, the banisters have free reign to force people to take loans against their will, offer loans to people that can’t pay them back because they want to prop up property values and run minorities into ghettoes and they send all the profits to Israel while passing the toxic losses off on the American taxpayers.

      -Modern Progressive

      1. It’s not just banksters. Capitalism is inherently coercive in a way that government isn’t. This is what progressives, or at least those with whom I’ve discussed such matters, actually believe.

        1. Or at least claim to believe.

        2. How the hell did you get a private audience with His Holiness, Pope Francis?

          1. All you have to do is buy a few indulgences, for your original sins, and you’re good to go. Pope Franky will talk to anyone as long as he can then pretend to use the money and influence to help the poor.

          2. “Who fucked up your hair?”

      2. Some while back a relative of my Wife (probably a fairly distant one, the close ones know better than to set me off) was blovating about how the “Greedy Banks” were responsible for the housing bubble, and why didn’t Congress hold hearings about it? I told him, somewhat bluntly, that Congress wasn’t going to hold hearings on what caused the economic collapse of 2008, because Congress knew goddamned well who caused it and the last thing they wanted was to give somebody an opportunity to say it out loud in from of the TV cameras.

        He wanted to know what I meant.

        I told him that if he was too young to remember the campaign to force lenders to make more loans to poor minorities, I wasn’t. And I also remembered economists from all points of the compass writing articles that essentially said “We hope you like bailing out lending institutions, because you’re going to have to”

        1. C.S.P. Schofiled
          the campaign to force lenders to make more loans to poor minorities

          Then you’ll LOVE this! Reported by the New York Times (not Fox)

          Describes how and why it all happened. Clinton pressured lenders to make more subprime mortgages. Lenders replied they couldn’t do that under Fannie’s and Freddie’s loan standards, so Clinton then pressured THEM to reduce their standards — standards which had protected taxpayers all along.

          Then … OMG … the New York Times PREDICTED that Clinton’s actions could cause a massive taxpayer bailout like the 1980s! A FUN read!

          http://nyti.ms/1hl1A9N

          In effect, Clinton caused trash mortgages to be a safer investment than Google.
          What could possibly go wrong?

    3. This would be a more compelling comment if that’s what Lash was arguing.

      1. Well what WAS Lash arguing then?

        1. Totalitarianism = awesomeness.

        2. That federal courts had no authority to enforce such rights against the states.

          1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

            Haven’t read Lash, not going to, but:

            Does he say that the federal courts have the authority to enforce the Equal Protection and Due Process Clauses against the states? If so, how does he arrive at the conclusion that this authority exists for the second two clauses of the sentence, but not the first? Is there some rule of construction that judicial review is created by the first semicolon in a sentence, and not affected by subsequent semicolons?

            1. My understanding is that he reads the 9th amendment as delegating power to the states more than to the people, so in terms of unenumerated rights, he doesn’t see any problem with the states violating them, because they’re not — the states enjoy those rights themselves. That doesn’t mean anything about the federal government gaining power through the commerce clause, as sarc implied.

              1. “The states OR the people? OK – states then….” – Lash

                1. Right. The argument there is that “the states” are HOW “the people” exercise their rights to self-government.

                  1. “We get to choose our masters, so it’s ALL good!”

                    Yeah, I don’t like where this is going already….

                    1. This is what federalists actually believe!

                    2. Sta-puft 2016!

              2. Governments don’t have rights, they have powers. People have rights and powers (or they should in a truly free and liberty-loving nation, which is not the U.S.) The Ninth Amendment states that those powers not specifically given to the federal government by the Constitution remain with the States and the people. When the people give up their powers to the government(s) they are then, at least as far as those powers are concerned, at the mercy of the government agents wielding those powers. Distrust people who want to wield power over you. They are human and are subject to all the human failings. Unfortunately, it is too late. The people have given away too much of their power to the rising police state. (All hail the government! Dissenters will be shot.)

                1. 9th Amendment, Peepul

                  The Ninth Amendment states that those powers not specifically given to the federal government by the Constitution remain with the States and the people.

                  You people scare the hell out of me.
                  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

                  States? WHERE?

          2. Hey Nikki!
            That federal courts had no authority to enforce such rights against the states.

            Obviously bat-shit crazy, unless one believes that any level of government can have powers which have never been delegated ,… which would totally demolish the entire principle of unalienable/fundamental/natural rights.

            Do they no longer teach that ours is a government of delegated powers?

  2. The point of the 14th Amendment was to prevent Southern states from reinsituting slavery by other means. Without the 14th Amendment, the South could have instituted laws that effectively made blacks slaves without calling them such. For example, a state could have passed laws that did things like said no black person could quit a job without the permission of his employer, set a wage ceiling on black labor, made it a crime for a black person not to be employed, that a black person’s employer had first right to hire his employee’s children and so forth. That is not slavery under the 13th Amendment, since they are working for a wage but it is in practice the same thing. The 14th Amendment, since it was written to stop the reemergence of slavery, it seems to me it was about economic freedom as much as anything.

    1. John,

      Let’s not get all hasty and include economic freedom as something important. I mean, how can be we beholden to the government under such circumstances? At what steps would we beg?

      1. Of course. And slavery had nothing to do with economics. It was all about making sure black people didn’t have a right to a jury trial or free speech, not forcibly obtaining their labor without compensation.

        1. Most people on the left will insist that capitalism created slavery. Never mind the fact that slavery existed for thousands of years and only disappeared after the advent of capitalism; capitalism created it.

          1. unfortunately, for the poor, they are often educated as such. Imagine if you told them- you can go sell what you want without a permit. You can cut hair in your living room without a health inspection, etc.

          2. Slavery predates capitalism, at least as a recognized economic system (leaving aside that market forces have been around all along).

    2. The 14th Amendment, since it was written to stop the reemergence of slavery, it seems to me it was about economic freedom as much as anything.
      .
      But you, of course, are not a distinguished Constitutional scholar. You know how you get to be a distinguished scholar of any stripe? By proposing novel reinterpretations of historic verities that stand conventional wisdom on its head. Nobody gets a doctorate in Harding studies, for example, by asserting that Harding was a straight white male – you get a doctorate by uncovering evidence that Harding was secretly gay or secretly Chinese or secretly two midgets in a long overcoat. Nobody would pay any attention to Kurt Lash if he weren’t saying something provocative and contrary to common sense and probably wrong.

  3. I must say I was sorry to hear he didn’t like it.

    I wouldn’t care about him liking it, but I would care about him disagreeing with it. Your premises are based in reality and the fact that a tenured law professor would refute them by whitewashing history should make you sadder than him saying he merely didn’t “like” it.

    1. “When asked what I thought about HIS thoughts on my book, I replied, ‘Why, Mr. Lash, I don’t think about them at all.”

    2. The main problem with Conservatives is that they too often try to conserve progressive ideology once it becomes main stream.

      It is why they will always lose. When you want the status quo, and you compromise with someone who wants more, it is always one step closer to their ideology, and one step further away from your own.

      1. “The whole modern world has divided itself into Conservatives and Progressives.

        The business of Progressives is to go on making mistakes.

        The business of Conservatives is to prevent mistakes from being corrected.

        Even when the revolutionist might himself repent of his revolution, the traditionalist is already defending it as part of his tradition.

        Thus we have two great types — the advanced person who rushes us into ruin, and the retrospective person who admires the ruins. He admires them especially by moonlight, not to say moonshine.

        Each new blunder of the progressive or prig becomes instantly a legend of immemorial antiquity for the snob. This is called the balance, or mutual check, in our Constitution.”

        you know who

      2. It’s the lack of core principles that gets these people in trouble. “Conservatism” is meaningless if it’s not about conserving certain axioms of political and economic philosophy. What they should be conserving is the concept of extremely limited government, maximized individual liberty, and free markets.

  4. “The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States,” Bingham explained to the House of Representatives, include the “constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

    What a horrific ideology…

    Stamp it out!

    Our present government is still a populist knee jerk reaction to the Great Depression, and the left is still twisting itself in pretzels trying to defend it .

    1. Slavery is at its heart a restriction on economic liberty. The point of slavery was not to tell slaves what they could read or think or say, though ensuring the continued survival of the institution often required that. The point of the institution was to forcibly obtain someone’s labor without compensation. Given that fact, I don’t see how anyone could say the 14th Amendment doesn’t concern economic liberty.

      1. The left has no problem with slavery, so long as the slaver is government.

        1. Do you think Lash is a leftist?

        2. Modern progressivism can best be summarized as “the slavery of all to all”.

      2. Well said.

      3. yes- but by this logic we are all slaves- at least a % of our life… what WOULD we do if this thinking spread?!

        1. According to the progressives, we’re not slaves if we get to pick our own master.

          1. That’s not true. We get to pick our corporate masters, don’t we? Yet we’re slaves to them nonetheless.

            1. The problem there is that corporations aren’t properly enslaved to the master, yet.

        2. Oh no you didn’t! You’re not allowed to use words that mean things because slavery is something only black people 150 years ago could possibly know about. You are obviously not sensitive enough to those long dead people’s tribulations!

      4. It’s about trying to justify what they’ve already done and what we already have.

        Our Presidents and politicians long ago decided to ask for forgiveness rather than permission, and the the legal community stage left has been all about giving them permission retroactively ever since.

        1. A while back I was listening to an interview with a former constitutional judge. He was sickened by the fact that his job was not to judge legislation against the Constitution, but rather to invent some justification for it. Legislators would come into his office with obviously unconstitutional bills, and then ask him to justify the unjustifiable. So he quit.

          1. Couldn’t he just say “You can’t justify it” and be done with it? I suppose that wouldn’t sit well with his employers and he would get fired (the same end result).

      5. Slavery is at its heart a restriction on economic liberty

        Don’t you mean “personal” liberty? Without it, there can be no “economic” liberty, which is itself a misnomer. Only humans have liberty. All other rights derive from personal, inviolable ownership of one’s own body.

  5. Good piece Damon.

    Perhaps you could do a book about the meaning of…

    nor deny to any person within its jurisdiction the equal protection of the laws.

    Imagine how awesome the world would be if it meant what it says.

  6. Lash’s complaint boils down to this: “Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights.”

    If one is to trust Damon’s summary of Lash’s criticism, one should then note that it stems from a question-begging assertion which is that rights have to be enumerated (ostensibly in the Constitution) for these rights to exist in the first place. In other words, the framers were very wise people who could see what others couldn’t and that was that we are all created with the rights enumerated henceforth in the Constitution – the State as God.

  7. So I take it that Damon’s book about the 17th Amendment was put to the lash?

    1. 14th… WTF?

  8. Which brings us back to Lash. In the professor’s view, the 14th Amendment cannot be read to protect unenumerated rights.

    I wonder what the professor’s opinion of the recent SSM decision is.

    1. Well I can tell you didn’t read his review of Root’s book.

  9. The problem with unenumerated rights: they’re so hard to enumerate.

  10. Dear everyone commenting on this thread who thinks Lash is a “leftist” or “progressive”: you look fucking retarded.

    1. According to Lash, the 14th Amendment offers no such protection. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.

      Sounds like a progressive to me.

      1. Yeah, because conservatives totally aren’t statists.

        1. MY TEAM IS OK! YOUR TEAM SUCKS!

          AND THERE ARE ONLY TWO TEAMS SO SHUT UP!!!111

          1. If a person espouses a “progressive” view — which to many people in this commentariat means “a view I disagree with”, then he must be a progressive, rather than just being a person who holds a progressive view about something. Duh.

        2. This kind of thing reminds me of VP’s distinction between stasists and dynamists more than left vs. right. Some conservatives are as attached to what we’d view as progressive viewpoints as they are to anything else. I mean, how many oppose, say, Social Security?

          1. STOP ASKING IMPERTINENT QUESTIONS, PROL!

            /channeling Greek gummint officials now

          2. To one crowd: SS and Medicare are going to bankrupt us!!! We must reform for the children.

            To another crowd: they want to cut SS and Medicare!! How dare they!!!!

        3. The word ‘conservative’ is a meaningless political descriptor.

          The non political definition; as one resistant to change ; is a more accurate description of democrats and progressives that want to preserve the welfare-regulatory-therapuetic state than it is of people on ‘the right’ that want to roll back the last century+ worth of government action.

          1. Well, you could also say…

            Progressives want to preserve AND expand the welfare state so they’re not necessarily “conservative”.

            While rolling back a government program (or 50) to what it was at an earlier point in time is “conservative”.

            But I agree that the definitions are largely meaningless. You can make the argument that many conservatives are strongly progressive and vice versa.

    2. You expect us to read the first sentence of the post? Fuck off. There’s hating to be done.

      1. So this would be….”hate speech”….therefore….
        .
        .
        .
        .
        .
        a witch?

        1. We have found a yokel, may we burn him?

    3. What difference, at this point, does it make?

    4. What Nikki said. And the word “statist” is a silly word that is almost uniformly misused.

      1. “Statist” is a catch-all term used by lazy, rabid keyboard warriors of the right to describe anyone who isn’t one of them. It has all the firepower and impact of “retard.”

        1. Sorry, I think it is a good word for people who worship the power of the state, and a good synonym for retard.

          Obama is a statist, Hillary is a statist (or villagist), Christie is a statist, Boehner, Bush, and McConnell are statists. They all just want to use it in different ways.

  11. “According to Lash, Overruled “is not a serious investigation of either the Constitution or contemporary legal theory.””

    To anybody who understands the history of the Amendment XIV, Lash is obviously out to lunch on his first contention. Root’s arguments are conclusive on this point.

    However “contemporary legal theory” holds that the Constitution as written is a dead letter and that its operative meaning is whatever the Nazgul says it is, and that the Nazgul can make the Constitution mean any damn thing it wants without regard to original intent or the clear meaning of the text. It will even re-define words to mean entirely different things. Essentially, “contemporary legal theory” is that the states can do anything that the Nazgul says they can.

    1. That’s such a danger path, even for the state-lovers. Their predecessors were far more intelligent and politically savvy, understanding that government requires some sort of legitimacy. The U.S. is lucky in many ways to be able to point to a foundational document that provides legitimacy by its very existence. Openly flouting the limits of the Constitution, however, weaken that belief in the government’s legitimacy. Without that, stability may disappear as well.

  12. Mr Root, you live in a fantasy world. Truth is , you are dreaming- you/I have no rights.

    “In your dreams, the Constitution was not a scam”,

    “In your dreams, the Bill of rights was not a scam”

    “In your dreams, the Supreme Court was not a scam”…..

    Quotes from original music and lyrics: “Dreams[ Anarchist Blues]”: http://www.youtube.com/watch?v=w0o-C1_LZzk

    Regards, onebornfree.

    Personal Freedom Consultant: http://www.freedominunfreeworld.blogspot.com

  13. After a bit of reflection, I think this would be a stab at resolving the issue:

    (a) Ever since the 14th Amendment was ratified, there have been all sorts of competing, but plausible, explanations.

    (b) If a law is subject to multiple plausible interpretations, that interpretation which promotes liberty should be preferred

    (c) Mr. Root’s interpretation – which reflects the views of a substantial portion of jurists – is, at the very least, plausible.

    THEREFORE:

    (d) Let’s go with Root’s interpretation, which is the most pro-liberty interpretation available.

    This way, we don’t go rooting around for The One Right Interpretation, but simply acknowledge the 14th Amendment’s vagueness and, as a matter of principle, put a thumb on the scale in favor of the most pro-liberty interpretation.

    (d) Adopt

    1. Omit that last para

    2. Under (a), I should have put “interpretations” instead of “explanations”

    3. Mr. Root’s interpretation – which reflects the views of a substantial portion of jurists – is, at the very least, plausible

      What else is even possible. Under the balance of powers, checks and balances, ONLY the court can defend our rights and liberties. Without that, Orval Faubus’s successor would have the Arkansas state militia STILL blocking Little Rock’s Central High School.

      1. “ONLY the court can defend our rights and liberties”

        over 50 million unborn babies would cheer your sentiment, *if they weren’t dead!*

        1. “ONLY the court can defend our rights and liberties”

          over 50 million unborn babies would cheer your sentiment, *if they weren’t dead!*

          You’re the type we need protection from. On what authority do you reject a woman’s equal, unalienable and/or God-given right to Liberty? Is that right somehow suspended? For how long and what other “unalienable” rights can be suspended, and for what reasons, according to ….. WHAT?

          In high school you should have been taught about conflicting or competing values. Somewhat obviously, no fundamental rights can be absolute, for the self-evident reason that they can conflict with each other. When that happens ONLY the court is empowered to resolve the conflict — by drawing the boundary between the conflicting rights in a way that best protects BOTH rights.

          In abortion, both sides are aggressively anti-liberty. One rejects the fetal child’s unalienable right to Life. The other rejects the mother’s unalienable right to Liberty.

          Extreme pro-lifers proclaim that Life is superior to Liberty … as if Jefferson and our Founders were too fucking stupid to know the meaning of “unalienable.”

          Imagine the barbarity if government could violate my liberty, to save the life of some total stranger 3000 miles away. Principles matter.

        2. over 50 million unborn babies would cheer your sentiment, *if they weren’t dead!*

          “We” are being protected, namely persons, living beings with a human soul. A fetus is not a person. I find it morally offensive that someone would equate a fetus with a person.

          Even the Catholic church taught for 1500 years that a fetus did not have a human soul until at least a few months after conception, a view that agrees with both common sense and science. The Catholic church changed its mind only in 1869 and then tried to rewrite history as if it had always taught that.

          Quite apart from that, even if a fetus were a person, it would still have no right to remain in a woman’s womb without her consent.

  14. I suppose the response to all that is, “They didn’t mean it in general, only in the context of the rights of former slaves.”

  15. The 9th Amendment — once called the “libertarian amendment” — is infinitely more explicit regarding unemunerated rights. The text even restricts all levels of government, including federal.
    Some say the 14th is a clarifier or enforcer of the 9th.

    Ours is clearly intended to be a government of delegated powers, and NO level of government has EVER been delegated ANY power over (for example) marriage or abortion. But that would demolish the bogus constitutionalism of Ron and Rand Paul, causing the “libertarian moment” fantasy to collapse like a house of cards.. Can’t have that.

    Piously stating “the Founders’ Intent” stresses the founders’ intent, unless it’s in-cun-veeeeee-n-yent for one authoritarian or another (especially bigots lately).

    1. The text even restricts all levels of government, including federal.
      Some say the 14th is a clarifier or enforcer of the 9th.

      No, that is just incorrect. The enumeration of powers of the federal government in the 9th Amendment does not as such apply to the states.

      I think it’s much more likely that the Constitution was intended in a way similar to the governing documents of the EU: something that allowed a collection of diverse states to trade freely and have freedom of movement between them while retaining their individual character and without having the central government pass laws that override the will of the people in each state.

      1. The text even restricts all levels of government, including federal.
        Some say the 14th is a clarifier or enforcer of the 9th.

        No, that is just incorrect. The enumeration of powers of the federal government in the 9th Amendment does not as such apply to the states.

        (lol) The Ninth Amendment has nothing to do with powers!

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        Ron Paul is another one who lies about this amendment. As a strict constitutionalist! His cult swallows it whole. More Paulist Cult bullshit

        pass laws that override the will of the people in each state

        This is not a democracy.

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  18. My understanding is that he reads the 9th amendment as delegating power to the states more than to the people, so in terms of unenumerated rights, he doesn’t see any problem with the states violating them, because they’re not — the states enjoy those rights themselves.

    How does that make sense in the context of the 14th amendment? The whole point of it is to stop the states from violating the economic rights of black people. If the states enjoyed those rights then the South could have just kept on implementing the “Black Laws”.

    1. There’s no way possible for any sentient being to read the 9th Amendment as delegating anything to STATES. Good grief, the 10th Amendment deals with POWERS, and the 9th with RIGHTS.

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      DUH. Are rights superior to powers? Why must this even be asked?
      States don’t have rights, and what a crazy thing to read on a libertarian website.

      1. In this context, “states rights” refers to the rights the people in a state have to pass laws and run their lives the way they please free from federal interference. So, the relationship between federal powers, state powers, and the rights of individuals in a state isn’t quite as simple as you think.

        Local and state governments are actually not all that different from private associations and corporations. If, as a libertarian, you want to allow a private HOA with 1000 residents to have a whites-only policy, why would you deny the same thing to a town with 1000 residents?

        1. In this context, “states rights” refers to the rights the people in a state have to pass laws and run their lives the way they please free from federal interference.

          (lol)”States rights” are neither mentioned nor implied. Followed by the insanity of Ron Paul’s “principles”

          Local and state governments are actually not all that different from private associations and corporations.

          He says Kiwanis has the power to tax … on his way to total fascism …

          If, as a libertarian, you want to allow a private HOA with 1000 residents to have a whites-only policy, why would you deny the same thing to a town with 1000 residents?

          PROOF: “States Rights” assholes claim property rights are subject to a popular vote, regardless of the Constitution, with no appeals to the Judiciary. Slavery for more than blacks. Thank you Ron Paul

          (Win Bear never knows what he’s saying, but that’s EXACTLY a Ron/Rand Paul Cult Principle.)

  19. State and local officials, in his view, should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.

    I’d be happy if the US federal government stuck to its enumerated powers, stopped controlling our economic affairs, and respected our unenumerated rights instead of trampling on them.

    1. I’d be happy if the US federal government stuck to its enumerated powers, stopped controlling our economic affairs, and respected our unenumerated rights instead of trampling on them.

      Hmm, the federal government can’t trample on our unemunerated rights … but states and cities can … with no recourse for any of us?
      One more glimpse inside the Paulist Cult

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