One thing that’s overlooked by those who defend Ron Paul on civil liberties grounds is Paul’s staunch opposition to what I would argue is the greatest boon to liberty in American history: the 14th Amendment. If it were up to Ron Paul, it’d be removed from the Constitution, and he’s said so on numerous occasions. Not only because of his opposition to Birthright citizenship, but because of his opposition to applying the Bill of Rights to state governments.
The grand centerpiece of the 14th Amendment is this:
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.
Over the course of decades of jurisprudence, this portion of the Amendment has been interpreted into what is known as the “Incorporation Doctrine” – which basically says that the Bill of Rights applies to the actions of States, not just the Federal Government. (It’s been a bit haphazard – different parts of the different amendments have only been applied to the states ad hoc, over time, as cases come before the Supreme Court.)
It’s the Incorporation Doctrine that prevents states from imposing religious doctrines in schools. It’s the Incorporation Doctrine that prohibits states from abridging free speech. The Incorporation Doctrine that provides that states have to provide fair trials and compensation for eminent domain. It’s the Incorporation Doctrine that says that state governments infringe on the right to bear arms.
A President Paul may not be able to override Congress on matters of foreign policy and the drug war. But I don’t think he’ll have any problem getting ultra-conservative judges who take a dim view of the Incorporation Doctrine appointed to the Bench – there are definitely legal circles where this is a popular position. He might not be able to get the 14th Amendment repealed, but I wouldn’t be terribly surprised if he made a good go at it. If not through outright repeal, then by passing legislation limiting the jurisdiction of the courts over different state government issues (he’s introduced legislation in the past to this effect).
It’s precisely for this opposition to Incorporation that’s made Ron Paul popular among politically conservative Evangelicals. As Benjy Sarlin notes:
[Rev. Phillip] Kayser and other endorsers praise Paul’s opposition to federal encroachment on states’ rights, especially via the judicial system. The idea is that even if they don’t agree with him on individual issues, Paul’s ideological belief that almost all federal intervention into states laws are unconstitutional would give them more latitude to restrict abortion and gay rights in their own states and communities.
In an interview with TPM, Christopher J. Neuendorf, pastor of Holy Cross Evangelical Lutheran Church in Davenport, Iowa described this “liberty” as Paul’s chief selling point.
Historically speaking, and especially in the last 70 years, the biggest battles for civil liberties have been against infringements by state governments. And the Incorporation Doctrine has been key to that battle in stopping those infringements. But a Ron Paul Presidency would lead to a weakening, if not eventual outright reversal, of Incorporation. Leaving state governments once again able to attack civil liberties more vigorously.
Nehemiah Scudder was a non-interventionist, too.
I wholly second this, Alex.
I am strongly pro-federalism, because I believe in a country the size of the U.S., most problems are in fact local, and national-level solutions are frequently ill-suited to localities; one size rarely fits all, because relevant local knowledge gets washed out in the national-level policymaking process. As well, a single solution is hard to change and experiment with, compared to 50 solutions which we can compare with one another. Also, local/state differences allow people to vote with their feet.
But that’s for general policymaking only, not for fundamental rights issues. Underlying American federalism should be a basic understanding that you shouldn’t have to vote with your feet–indeed you shouldn’t have to vote at all–to be guaranteed basic fundamental rights. Opponents to incorporation largely are asking that their state have the right to discriminate against some minority or other.
When libertarianism focuses on the liberty of local majorities, rather than on the liberty of individuals, it’s gone far wrong, in my not very humble opinion.
And picking up on the issue of birthright citizenship, Ron Paul’s libertarianism often seems to be based on liberty only for people who are “legitimately” American. That’s a particularly stunted and ill-formed form of libertarianism (again, in my not at all humble opinion).Report
The expansion of Incorporation jurisprudence hasn’t been an unambiguous success for liberalism, either. It may have allowed the Feds to break apart de jure segregation in the South, but it’s also made fighting the Drug War a lot easier, which has promoted not just segregation of minorities but outright encagement of them. I think Northern liberals who are quick to extol the effects of expanded 14th Amendment jurisprudence would do well to acknowledge how worrying such a centralization can be. Ron Paul has long been vocal of his support of repealing Jim Crow laws, so instead of seeing his opposition to federal power as a kind of crypto-fascism, try seeing it as a decentralizing anarchism of the kind propounded by #OWS types.Report
“but it’s also made fighting the Drug War a lot easier”
How so? In the few instances in which the Supreme Court has been on the right side of drug war jurisprudence, it’s been in defense of the 4th Amendment against law enforcement. Too far and between? I think so.
“has promoted not just segregation of minorities but outright encagement of them”
I’d be the first to stand in line in support of ending the drug war, but this is nonsensical.Report
“How so? In the few instances in which the Supreme Court has been on the right side of drug war jurisprudence, it’s been in defense of the 4th Amendment against law enforcement. Too far and between? I think so.”
Sure, but what about times when it’s been on the wrong side of the Drug War? Federal drug laws could never have passed constitutional muster if it weren’t for expanded Commerce Clause jurisprudence that grew co-causally with expanded 14th Amendment jurisprudence.
“I’d be the first to stand in line in support of ending the drug war, but this is nonsensical.”
There are more black men in prison (i.e., encaged) than there were enslaved in 1850. I stand by my statement.Report
3.1 million slaves in 1850 http://www.whalingcity.net/picture_1855_almanac_us_and_slave_population.html
so say 1.6 million black men enslaved.
About 2.3 million people in prison right now of which black males make up about 35% http://abcnews.go.com/TheLaw/story?id=5009270&page=1 so about 800K.Report
Yeah, also US population in 1850 was 23 million; US population in 2011 is 311 million. Which means about 1% of the population were male slaves in 1850, and black males in prison are .002% of the population in 2011.
I hear this claim all the time… where on Earth did it start?
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Actually, your math is wrong: Black males in prison are about .2% of the total population in 2011. Of course you’re right to point out comparisons of absolute figures aren’t entirely apt because the population has grown a lot since the 19th century, but nevertheless, it’s a harrowing statistic.
(By the way, the claim comes from the work of an Ohio State law professor.)Report
Yeah, that’s embarrassing – I didn’t move the decimal point either time. (Seriously, 1.6 is 1% or 23? Oy….)
Also, thanks for that link. That’s funny, actually… I always hear that claim made as a justification for racial profiling, usually by talk radio hosts. How odd that a (apparently wrong) claim made by minority civil rights activist is used as a justification to ignore a minority’s civil rights.Report
I don’t see how the professor’s work is wrong; just my initial representation of it. See my comment to Kolohe below.Report
Given the factor of population (now that my math has been corrected, slaves made up about 10% of the entire population in the way back; the current stats are not similar) I find this a case where hyperbole gets in the way and has the potential to derail what I think is a good point by Alexander.
I feel the same way about this study as I do about those that people email about that say something like 75% of American women have been the victim of raped: you’re just making it easier to dismiss out of hand an issue that really, really should be addressed.Report
But it’s the Paulites who are the reactionaries. Got it. 😉Report
I guess I was slightly off on my statistic: it’s black men who are in the prison system, not men who are imprisoned. Once you add black men on parole and probation (which are arguably restrictions of liberty comparable to segregation), then that fills out the 1.6 million figure.Report
Kolohe:
Really, comparing slave to convicted criminals? Is that really the best you can do?Report
Whites and blacks use drugs almost exactly the same rates (10-15%), yet blacks are 7-8 times more likely to go prison for drug crimes. On a certain level, a lot of “convicted criminals” are only convicted criminals because they’re black.Report
Racial disparities in sentencing and conviction rates aren’t only something that happen in drug crimes. I’ll posit that drug prohibition does make it more likely to be arrested on any given day, but I’d imagine if you ended that the cops would just find some other reason to go after minorities.Report
Absolutely true, but Ron Paul’s comments regarding racial disparities in capital punishment suggest that his presidency would address racial disparities in the justice system more generally as well. I’m far from certain that I’d vote for Paul over Obama, but I think a conservative-in-his-personal-life white Southerner could open the national dialogue to this kind of thing better wider than the open-about-his-past-coke-use incumbent. And at any rate, I fail to see how supporting Paul against the current crop of white supremacists in the Republican primary could be of much harm.Report
“Is that really the best you can do?”
Well, I can read the immediate preceding post in the thread for the fishin context, at least.Report
Kolohe:
You are right, you didn’t bring it up.Report
(I’d also add that 4th Amendment cases are a very weak proxy for “drug war jurisprudence,” because the evidentiary issues settled in those cases apply to a lot more than just drug searches.)Report
Not to mention that the Court only had occasion to act in “defense of the 4th Amendment against law enforcement” because most of the carve-outs to the 4th amendment had to do with drug cases in the first place.Report
Alex:
Sorry, the 17th and 14th amendments are the two worst things to ever happen to this country. Or rather I should say the modern interpretation of the 14th by liberals justices since the idea that incorporation is relatively recent. It has allowed the feds to get their grubby gov’t finger into the states’ pies.Report
the idea that incorporation is relatively recent
Actually, the idea of incorporation has been used by the Supreme Court for a considerable majority of the 14th Amendment’s history, and there’s some legislative history to support the idea.Report
Yes there are a few incorporation cases in the late 1800/1900s but the S.Ct. really didn’t get rolling on the idea until the 50’s when the liberals used the court expend the fed gov’s reach.Report
Yeah, those damn 1950s liberals using the 14th Amendment’s statement that no state shall deprive anyone of equal protection of the law to actually ensure that no state deprived anyone of equal protection of the law. That truly was the one of the “worst things to ever happen to this country.”Report
Well it did infringe on their 10th amendment rights…
Or something.Report
It destroyed federalism in the process and encouraged liberals to use the courts for social engineering.Report
Dead wrong. It only destroyed state authority to discriminate against unpopular minorities. Real federalism, the good kind, was destroyed by the expansion of the Commerce Clause and Congress’s realization that they could bribe states through grants-in-aid. To focus on the 14th Amendment, with its protections for individuals, is so mis-guided it makes my mind boggle.
I don’t know your political stance, so this may not refer to you, but any libertarian who objects to the 14th Amendment has admitted that they don’t really care about individual liberty. I hate to tread into no true Scotsman territory, but that’s about the most un-libertarian approach I can think of.Report
Scott,
<i>Sorry, the 17th and 14th amendments are the two worst things to ever happen to this country. Or rather I should say the modern interpretation of the 14th by liberals justices since the idea that incorporation is relatively recent. </i>
Incorporation is relatively recent because it reflects the post New Deal shift from substantive due process jurisprudence (i.e. Lochner and Meyer) to the “fundamental rights” analysis that effectively gives more protection to enumerated liberties and those deemed fundamentals while leaving those liberties not specifically mentioned in the Constitution to the whims of “rational basis”. I have a beef with the Progessive justices on this one because rulings like Nebbia v New York and West Coast Hotel v Parrish severely curtailed the public-private distinction, and while I can understand and sympathize (on a very low level) the Progressive attempts to undermine the freedom of contract doctrine that drove due process jurisprudence from Allgeyer v Louisiana to West Coast Hotel v Parrish, the cure was worse than the disease. For the best evidence of that, look at how Justice Douglas attempted to incorporate privacy into the Constitution in the correctly decided yet terribly written Griswold decision. All one has to do is follow the due process arguments set forth by Meyer v Nebraska and you get to the same point.
Incorporation was never necessary until after 1937 because the court’s decisions only focused on whether the state exceeded its powers as opposed to identifying and protecting fundamental rights in the specific way it is done today.
<i>It destroyed federalism in the process and encouraged liberals to use the courts for social engineering.</i>
I agree with James on the federalism argument. For that, you have to look at the cases involving the Commerce Clause and the Do-Whatever-We-Want-To Clause (aka the General Welfare clause).
I always find claims of social engineering interesting because if, for example, when people cry “social engineering” when a school prayer law is struck down, they seem to ignore the fact that the school prayer law was in of itself an act of social engineering and had nothing to do with the traditional role of the state police power. If the SCOTUS upholds an affirmative action policy that is already in effect, how is that social engineering by the court when it was not the court that enacted the law in the first place?
Claims of social engineering are closely related to the cries of “judicial tyranny” and “judicial activism” made by those that have a talk-radio level understanding of our Constitution or maybe feel they have their talking points in order because they read Mark Levin’s Men in Black or something similiarly awful.Report
Alex must have not gotten the memo – leaving questions of law to the states means adhering to “the will of the people”. Apparently “the people” only vote in state elections, not federal ones (or even local city elections, since we don’t hear a lot of clamoring from libertarians to “leave it to the city”.)Report
Not to mention that the whole point of the constitution is to frustrate the will of the people, at least on some topics.Report
Ron Paul is against the Federal Government imposing their whims on the States through Incorporation, true. Ron Paul is against the 14th Amendment, false. Ron Paul just wants to interpret the 14th in a strict manner, no nonsense like Incorporation or Birthright citizenship.Report