The New York Times Magazine recently released its "1619 Project," an initiative marking the 400th anniversary of the first African slaves arriving in North America. The project is ambitious, aiming to "reframe the country’s history, understanding 1619 as our true founding." A collection of pundits have framed this project as an attempt to "delegitimize" the United States. Such commentary provides an opportunity to consider the state of American race relations and the role of slavery in American history.
Whether or not the foundation of the United States was legitimate is an interesting political, moral, and historical question. You can spend a career considering questions about when political violence is justified, what fair representation in a democracy looks like, how to measure and secure the consent of the governed, and what political system best secures natural rights. But these aren't the kinds of questions many 1619 Project critics have in mind when they accuse it of "delegimitizing" the United States. They're concerned that highlighting America's brutal history of slavery and its role in forming the United States undermines the American project; an experiment in self-government.
The relationship between black people and the white institutions that oppressed them is one of the most consequential features of American history. The most prominent of America's contradictions is that its Founding documents were written by white men who owned black human beings as farm equipment, yet they expressed a commitment to liberty.
Thomas Jefferson, the man who believed that it was "self-evident" that all men are created equal owned slaves. James Madison, the "Father of the Constitution" and author of many of The Federalist Papers, also owned slaves and was skeptical of free African Americans being a part of the American polity. After leaving the White House Madison served as the president of the American Colonization Society, which urged freed black people to move to Africa.
During the Revolutionary War, the British frigate HMS Savage sailed up the Potomac River, its troops burning houses in Maryland in view of Mt. Vernon, George Washington's Virginia estate. The Royal Governor of Virginia John Murray had earlier issued a proclamation, offering freedom to slaves who fought for Britain. A wartime necessity rather an endorsement of full-throated emancipation to be sure, but it's nonetheless telling that seventeen of Washington's slaves fled Mt. Vernon and boarded HMS Savage. To a Virginia slave, housing in a British warship was preferable to the slave quarters belonging to the man who would become the first president of the United States.
Bewilderment at slave owners proclaiming a devotion to liberty is hardly reserved to 21st century. In a 1775 essay on the American colonies the English writer Samuel Johnson asked not unreasonably, "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" The Founding Father John Adams never owned slaves and opposed slavery, though favored gradual erosion of the institution rather than outright and immediate abolition. His wife Abigail understood the contradiction of the American Founding:
I have sometimes been ready to think that the passion for Liberty cannot be Equally Strong in the Breasts of those who have been accustomed to deprive their fellow Creatures of theirs. Of this I am certain that it is not founded upon that generous and Christian principal of doing to others as we would that others should do unto us. . . .
That the Founding generation included moral hypocrites is hardly surprising. Every collection of human beings has included flawed people. Anyone scouring history books in search of moral perfection will be left disappointed.
It's not clear that the moral hypocrisy of some of America's founders delegitimizes the United States per se. At worst such hypocrisy makes the founding of the United States far from perfect. Even those who think that it's a stretch to say that the United States was founded "on" racism can hardly deny that it was founded with racist institutions explicitly protected. The evils of slavery don't in and of themselves negate the colonists' complaints about a lack of representation in Parliament or the fact that British officials had subjected colonists to needless, intrusive searches and other abuses against their civil rights. But they shouldn’t be overlooked.
What is clear is that the United States has yet to fully come to terms with its history of racial violence and oppression. In large part this is because we're accustomed to measuring our race relations progress through the lenses of military, political, and legislative victories.
Hundreds of thousands of Americans died in the wake of an illegitimate attempt at secession predicated on the preservation of slavery. The Civil War amendments to the Constitution certainly improved the document, but they hardly erased a culture of violence and racism that made them a necessity.
The North won the Civil War, the South won Reconstruction. The explicit exemption of blacks from civil rights and political participation in the South as well as the emergence of a racist domestic terrorist organization are all evidence that wars and Constitutional amendments hardly erase cultures that took centuries to develop. A century after Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House, racists were murdering civil rights activists in the Jim Crow South. Thousands of black people had been lynched during those hundred years. Others were subjected to medical experiments. Segregation, bans on interracial marriage, and many other indignities were imposed by white-majority legislatures.
We can and should applaud the progress that the U.S. has made since its founding while accepting that there is much work to be done. Such work requires an honest look at history that treats the Founding Fathers and America's founding documents as men and historical writings, not prophets and religious texts.
Although decades have passed since the civil rights movement American institutions continue to reflect America's racist history. Law enforcement and criminal justice are perhaps the most prominent and obvious examples, but we shouldn't ignore the impact racism has had on housing policy, education, and economic regulations. This history of course doesn't imply that everyone who works in law enforcement, housing, and education or advocates for minimum wage increases is a racist, but it should be considered when discussing the ongoing impact of race relations on American society.
We should also consider modern moral hypocrisies and racial language. Today, many people who claim to support "liberty" protest the removal of statues of Confederate generals who fought to preserve slavery. More than 150 years after the end of the Civil War, a city worker in New Orleans wore body armor and a face covering while removing a statue of Confederate leader Jefferson Davis.
Rep. Mark Meadows (R-NC), a member of the "Freedom Caucus," won re-election despite saying that President Obama should be sent "back home to Kenya or wherever" (he has since disowned the comments). The whole Obama presidency is full of examples of thinly veiled racial language being used against the president and his family. Rep. Steve King (R-IA) has used racist language and adorned his desk with a Confederate flag, which he displayed without any hint of irony alongside the American flag.
If initiatives like The 1619 Project can help Americans better understand their history and institutions then they should be applauded. I've yet to read the 1619 essay collection in full, and I'm sure that I'll have some disagreements with some of its contributors. The essay on the link between slavery and the "brutality of American capitalism" looks ripe for educated criticism.
It's important for an honest look at American institutions and history because the United States - unlike France and Greece - was founded on a set of principles. French and Greek identities have endured despite Greece and France being governed by a wide range of political regimes (republics, parliaments, monarchies, occupations, etc.). Yet there's a sense in which American identity is tied to the political commitment outlined in the Declaration: a government tasked to securing rights endowed to all people.
I am bound to that commitment. I took an oath to the Constitution when I became an American citizen ten years ago. I did so gladly, knowing that the document and the men who ratified it were imperfect. But such imperfections didn't dent my budding patriotism. Anyone with a family and friends knows that you can love something that isn't perfect. My relationship with my country is like my relationship with anyone: it improves with increased honesty, reflection, and candor.
Rep. Justin Amash (R-MI) is the most libertarian member of Congress. His view of his role in Congress is deeply rooted in his commitment to the Constitution. Amash told the New York Times in 2011, “I follow a set of principles, I follow the Constitution. And that’s what I base my votes on. Limited government, economic freedom and individual liberty.”
Amash has a remarkable knack for drawing opponents who are ignorant or dismissive of the Constitution. His 2014 primary opponent, Brian Ellis, strikingly dismissed Amash’s principled, constitutional stand: “He’s got his explanations for why he’s voted, but I don’t really care. I’m a businessman, I look at the bottom line. If something is unconstitutional, we have a court system that looks at that.”
Most members of Congress vote for unconstitutional bills. Few of them make it an explicit campaign promise.
And now, just today, one of his pro-Trump challengers in next year's primary, Tom Norton, "passed out press releases calling on the House to expel Amash for allegedly failing to represent constituents in a district that backed Trump."
Needless to say, Congress does not and would not expel a member for such a reason. Not that it matters, in 2016 Amash carried his district by 22 points while Trump had a 9-point margin.
Meanwhile, here's an article on Amash's differences with Sen. Rand Paul (R-KY) on what libertarians should think about the behavior described in the Mueller Report.
Last week the Supreme Court issued its ruling in Carpenter v. United States, with a five-member majority holding that the government's collection of at least seven days-worth of cell site location information (CSLI) is a Fourth Amendment search. The American Civil Liberties Union's Nathan Wessler and the rest of Carpenter's team deserve congratulations; the ruling is a win for privacy advocates and reins in a widely used surveillance method. But while the ruling is welcome it remains narrow, leaving law enforcement with many tools that can be used to uncover intimate details about people's private lives without a warrant, including persistent aerial surveillance, license plate readers, and facial recognition.
Timothy Carpenter and others were involved in a string of armed robberies of cell phone stores in Michigan and Ohio in 2010 and 2011. Police arrested four suspects in 2011. One of these suspects identified 15 accomplices and handed over some of their cell phone numbers to the Federal Bureau of Investigation. Carpenter was one of these accomplices.
Prosecutors sought Carpenter's cell phone records pursuant to the Stored Communications Act. They did not need to demonstrate probable cause (the standard required for a search warrant). Rather, they merely had to demonstrate to judges that they had "specific and articulable facts showing that there are reasonable grounds to believe” that the data they sough were “relevant and material to an ongoing criminal investigation.”
Carpenter's two wireless carriers, MetroPCS and Sprint, complied with the judges' orders, producing 12,898 location points over 127 days. Using this information prosecutors were able to charge Carpenter with a number of federal offenses related to the armed robberies.
Before trial Carpenter sought to suppress the CSLI data, arguing that the warrantless seizure of the data violated the Fourth Amendment, which protects "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The district court denied Carpenter's motion to suppress. He was found guilty and sentenced to almost 116 years in prison.
Carpenter appealed to the Court of Appeals for the Sixth Circuit, which affirmed his conviction.
Since the 1967 Supreme Court case Katz v. United States courts have deployed the "reasonable expectation of privacy test" to determine whether law enforcement officers have conducted a Fourth Amendment search. According to this test, outlined in Justice Harlan's solo Katz concurrence, officers have conducted a Fourth Amendment "search" if they violate a suspect's subjective expectation of privacy that society is prepared to accept as reasonable.
The Sixth Circuit determined that Carpenter did not have a reasonable expectation of privacy in his physical location as revealed by CSLI. This determination is consistent with the so-called "Third Party Doctrine" developed by the Supreme Court in United States v. Miller (1976) and Smith v. Maryland (1979). According to the Third Party Doctrine, people don't have a reasonable expectation of privacy in information they voluntarily surrender to third parties such as banks and phone companies.
In an opinion written by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor the Court sided with Carpenter without jettisoning the "reasonable expectation of privacy test" or the Third Party Doctrine. The opinion is a narrow one, holding that the warrantless acquisition of historic CSLI information does violate a reasonable expectation of privacy in physical location. In addition, the Court noted that the Third Party Doctrine remains in place, even if it doesn't extend to CSLI.
According to the Court, this is because of the "unique nature" of cell-site records:
But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.
We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.
The Court's majority opinion make a number of points to emphasize the revealing nature of CSLI data, including the ubiquitousness of cell phones among American adults, and the fact that, "when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user." The opinion goes on to discuss how government officials can "travel back in time" to retrace cell phone users' behavior.
Surveillance Tools Left Available
The Carpenter ruling will have an immediate impact on law enforcement. Last year, law enforcement sent 125,000 CSLI requests to AT&T and Verizon. While presumably many of these requests were related to CSLI data revealing suspects' movements for less than a week, it's worth considering this comment from Laura Moy, Deputy Director of Georgetown Law’s Center on Privacy & Technology and former CSLI analyst for the Manhattan District Attorney.
However, law enforcement can still conduct intrusive and revealing warrantless searches using a wide range of technologies. In the Carpenter majority opinion the Court noted, "we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI."
But our physical movements can be tracked without CSLI. The majority's mention of CSLI allowing government officials to "travel back in time" reminded me of the Baltimore Police Department's use of persistent aerial surveillance equipment, which its developer described as, "a live version of Google Earth, only with TiVo capabilities." He wasn't joking.
License plate readers are also useful tools for tracking physical movements. Immigration and Customs Enforcement (ICE), the federal agency responsible for deportations, has access to more than 2 billion license plate images, allowing its agents to engage in near real-time tracking and to access years-worth of location data. The license plate data available to ICE includes images from 24 of the US’ top 30 most populous metropolitan areas.
Law enforcement agencies across the country are pursuing real-time facial recognition capability. Other emerging police technologies, such as body cameras and drones, may soon be regularly outfitted with real-time facial recognition capability. This capability will provide another means by which police can track our physical movements.
Persistent aerial surveillance, license plate readers, and facial recognition remain a serious concern despite the Court's ruling in Carpenter.
Yet the fact that the Carpenter ruling is narrow should not detract from its significance. It's one of the the most important 4th Amendment Supreme Court cases in years and lays the groundwork for future cases involving a range of surveillance tools.
For more on Carpenter listen to Cato Senior Fellow Julian Sanchez and Cato senior fellow in constitutional studies Ilya Shapiro discuss the case in a recent Cato Daily Podcast.
Last week, Senator Ron Johnson (R-WI) introduced the State Sponsored Visa Pilot Program Act of 2017. Senator John McCain (R-AZ) is an official co-sponsor. If enacted, this bill would create a flexible state-sponsored visa system for economic migrants whereby states would regulate the type of visas and the federal government would handle admissions and issue the actual visas. Representative Ken Buck (R-CO) plans to introduce a companion version in the House in the near future.
This is an innovative bill but we have encountered one persistent question from conservatives, libertarians, and others who are sympathetic to the idea of immigration federalism: Is a state-sponsored visa constitutional?
The state-sponsored visa is perfectly consistent with the current migration system. The Johnson-Buck bill does not actually end federal control of migration but it merely creates a visa category whereby the states select the migrants through whatever processes they establish. The federal government is in full control of visa issuance and admission at ports of entry. Thus, states would be acting as sponsors on behalf of migrants whom they represent in their states in the same way that they currently sponsor foreign-born students at state universities and other workers in their capacity as employers.
In 2014, Brandon Fuller and Sean Rust authored a policy analysis for Cato that explored how a state-sponsored visa program could operate in the United States. They wrote a section addressing the constitutionality of such a program:
Historically, the Supreme Court has interpreted Congress to have “plenary power” over immigration, generally giving deference to the political branches of the federal government as an extension of the Naturalization Clause under Article 1, section 8, clause 4, which gives Congress the power “To establish an uniform Rule of Naturalization.” Under current interpretations, this gives Congress the sole power to establish naturalization guidelines. However, Congress can also allow states to be involved in immigration policy in areas besides naturalization, such as managing a state-based visa within federal guidelines. Some immigration policies, with the exception of naturalization, can be partly devolved to the states within a range of powers permitted by the federal government.
The recent case of Arizona v. the United States, which decided the constitutionality of Arizona’s strict immigration laws, reiterates the point that states are allowed to participate in immigration policy and enforcement, but only within the scope permitted by the federal government. In debating the case of Arizona v. United States, Peter Spiro, an immigration law scholar at Temple University’s Beasley School of Law, wrote, “[I]n Arizona, the Supreme Court constricted the possibilities for unilateral state innovation on immigration, both good and bad. That does not stop the federal government from affirming state discretion.” A state-based visa program does just that—allowing states to participate in the selection of immigrants under guidelines permitted by the federal government which is consistent with current interpretations of the Supremacy Clause and the plenary power of the federal government in the matter of immigration.
It is also important to note that U.S. law defines a nonimmigrant visa holder as “an alien who seeks temporary entry to the United States for a specific purpose,” and the federal government may set conditions in accordance with this purpose. For example, in the current immigration system a foreign entrant may be required to be attached to a singular petitioning employer under a number of employer-based non-immigrant visas, such as the H-1B. Like holders of employment-based visas, state-based visa holders would be nonimmigrants with a temporary right to live and work in the United States and an option to pursue permanent residency. As such, the state-based system is simply a variation on the condition being attached to the foreign entrant.
The Johnson-Buck bill is a federally created visa that allows states to sponsor migrants that would operate by the guidelines established under the Supreme Court cases argued over the Arizona immigration enforcement laws. The same precedents that established that states can increase immigration enforcement beyond what the federal government intended, within the confines of a federal program, also allow states to choose whether to have more legal migrants under a federally managed system.
Naturalization is a solely federal power that the state-sponsored bill does not interfere with. If a worker on a state-sponsored visa finds an employer or a family member to sponsor him for lawful permanent residency then he will have full mobility, employment, and residence rights just like any green card holder.
The federal government currently runs the visa system in the United States and the Supreme Court has interpreted the Constitution to give Congress that power. There is nothing unconstitutional with Congress asking the states to play a role in the process of selecting migrants for visas.
 INS v. Chadha, 462 U.S. 919 (1983).
 Chamber of Commerce v. Whiting, 563 U.S. (2011); Arizona v. United States, 567 U.S. (2012).
Yesterday, President Trump's pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime. In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.
One order calls for the creation of a task force on crime reduction. The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled "Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers." This order is also about exploring new ideas and strategies to "enhance the protection and safety" of law enforcement officers. The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue "through widespread illegal conduct." Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.
To begin, these executive orders do not, by themselves, raise any legal or constitutional problems. Sometimes presidents use executive orders to usurp the lawmaking power that is assigned to the Congress. These orders do not fall into that category. These orders only concern the apparatus of the executive branch itself. Trump wants to make sure the Department of State, Homeland Security, and Justice Department are sharing information and coordinating their efforts, for example. There's no new law or restriction that applies to persons in the U.S. that did not already exist last week.
Second, Trump's orders are also fairly conventional. This is what Republican presidents usually do. President Reagan and President George H.W. Bush created task forces and working groups to make recommendations about how to better organize the government and fight crime.
Third, one can also fairly say that Trump is simply following through on his campaign promises. Illegal immigration was the centerpiece of his candidacy and these orders are mostly about the specifics. It is true that many people from Mexico and Central America try to make it to the U.S. on their own. Yet it is also true that there are transnational criminal organizations that are in the business of human smuggling. Trump wants recommendations on how to strengthen and improve the government's efforts to combat these organizations. No major surprise about that.
All in all, some might say that the orders are "no big deal."
Well, not so fast. There are several reasons that supporters of limited, constitutional government ought to be concerned about the orders that Trump signed yesterday. For the past 30 years, the Right has been sounding the alarm about the growth of government and the federalization of crime. In the landmark Lopez ruling, the Rehnquist Court invalidated the first federal criminal law in 60 years because it was simply beyond Congress's power to enact. Former Reagan Attorney General Edwin Meese has testified about the sorry shape of the federal criminal code and the need to scale it back. The Federalist Society has also drawn attention to that problem.
Trump and Sessions seem not only uninterested, they seem intent on exacerbating the problem. The orders instruct the task forces and working groups to see whether existing laws are "adequate" and to recommend legislation "defining new crimes" for the president's consideration and signature. Same thing with the federal "funding programs." If they're not adequate, bring the president budgetary proposals. Note that the budget of the Department of Justice has been on on upward trajectory for many, many years. The Trump administration seems to want that growth to continue.
Trump's heart may be in the right place. He notes the awful circumstances in so many of our cities for poor minorities who have to live in violent neighborhoods and attend lousy schools. Unfortunately, Trump seems to view the Constitution's separation and division of powers as bugs instead of features. To paraphrase The Cato Handbook for Policymakers, the identification of a problem does not mean that the government should undertake to solve it, and the fact that a problem occurs in more than one state (carjackings, lousy schools, obesity, termites) does not mean that it is a proper subject for federal policy.
We will be sending complimentary copies of the Handbook to President Trump, Attorney General Sessions, and all members of Congress to remind them that the federal government is already too big, and that our fundamental law, the Constitution (to say nothing about our fiscal crisis), requires recommendations for downsizing federal operations.
My first choice from the president's fabulous list of terrific judges -- they're all winners, believe me (no really, solid list) -- was probably the judiciary's twitter laureate, Texas Supreme Court Justice Don Willett, but Judge Neil Gorsuch of the Tenth Circuit was right up there. As you can see by my statement to CNN, I'm pleased as punch with the selection.
There'll be time enough to analyze Judge Gorsuch's work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:
- A keen appreciation for constitutional structure as a guarantor of our rights and liberties.
- A real devotion to originalism -- probably more than the self-described "faint-hearted originalist" Antonin Scalia -- and textualism.
- Strong support for the freedom of speech and religion, and the First Amendment more broadly.
- Skepticism of the administrative state.
- Like Scalia, he construes criminal statutes narrowly, so people aren't convicted and punished without the government's meeting its evidentiary burden or establishing that it didn't violate constitutional rights in arresting and prosecuting defendants.
- Really, really good writing, which even Justice Elena Kagan has praised.
Gorsuch also maintains a good relationship with Cato and has published a Policy Analysis with us. In short, Donald Trump has managed to pick a nominee who should please everyone other than progressives: social conservatives, libertarians, legal elites, and I imagine the populists who trust him to pick "the best judges." Left-wing activists are already talking about how Gorsuch is extreme and is anti-women, workers, yada yada -- they have to raise money somehow -- but I find it hard to see how Senate Democrats will muster 40 votes to sustain a filibuster against someone who was unanimously confirmed in 2006, particularly with a tough 2018 map.
For more analysis, see my short piece in the New York Post, plus Andrew Grossman and David Rivkin in the Wall Street Journal, as well as these excellent essays by Ramesh Ponnuru and Ed Whelan.
An article cited in the Cato Clips late yesterday caught my eye: "Libertarian Judicial Activism Isn't What the Courts Need.” Written by Texas attorney Mark Pulliam, a sometime contributor to such libertarian publications as Reason and The Freeman, among others, it was posted at a site called “Southeastern Texas Record” and a day earlier at “American Greatness” (I leave it to the reader to discern what that site is about). The title speaks for itself. As the first named target of the piece, I’m given to respond, briefly. Others, in order of appearance, are Randy Barnett, Clark Neily, Ilya Shapiro, Kermit Roosevelt III, Dick Carpenter, Anthony Sanders, and, by implication (their book, The Dirty Dozen, is cited), Bob Levy and Chip Mellor—a veritable rogues gallery of libertarian legal scholars.
Could we all be wrong? Apparently so. We’ve “devised a novel theory that the Constitution, properly understood, protects a person’s ‘right to do those acts which do not harm others,’” Pulliam argues, “enforceable against the federal government and the states,” and “it is only judges who get to decide whether a particular law is justified constitutionally.” What’s worse, we’re urging President-elect Trump to appoint adherents of this “fanciful theory” to the Court.
And why is that theory “unsound and misguided”? To begin, Pulliam claims that it
rests on the premise that the Constitution was not so much an arrangement among the individual states (which themselves were separate Lockean social compacts) as it was a very limited delegation to the federal government of individual sovereignty (harkening back to the Declaration of Independence and its reliance on “natural rights”).
To be sure, the Constitution was ratified through state conventions. But as the Preamble makes crystal clear, it’s theory of legitimacy, drawing from the Declaration’s theory, rests on the idea that “We the people,” in our individual capacities, for the purposes indicated, came together to “ordain and establish this Constitution.” And as is also clear from the very next sentence—the first sentence of Article I—we “granted” such legislative powers as we did to a Congress, a very limited delegation, as Article I, Section 8 indicates. So what’s the problem?
To get a hint, notice the scare-quotes (sneer-quotes?) around “natural rights.” “In this rubric,” Pulliam writes, “individuals continue to possess all unalienable rights to which they were endowed in the ‘state of nature,’ other than the federal powers specifically enumerated in the Constitution.” Well, yes, that’s plain from background theory, text, and numerous explanations in the Federalist. How else could it be? Is it that there are no rights but only powers, which we “granted”? By what right, then, did we “ordain,” “establish,” and “grant”? Of course, none of that makes sense if natural rights and state-of-nature theory are dismissed out of hand. But the Founders and Framers took those ideas seriously. They did not view the Constitution as a mere compact among the states, grounded simply in will.
Insofar as it pertains to the federal government, Pulliam concludes his understanding of libertarian constitutional theory as follows:
“Natural rights,” [libertarians] claim, are protected by the reference to “liberty” in the due process clause of the Fifth Amendment, and the Ninth and 10th Amendments preserve to the people—as individuals, not as states—all rights not specifically surrendered to the federal government.
No. To be sure, the rights “retained” by “the people” through the Ninth Amendment and the powers “reserved” to “the states respectively, or to the people” by the Tenth Amendment were retained and reserved to the people as individuals, not as states. Indeed, why would the Framer’s switch from individual to collective rights when they got to the Ninth, especially since the contrast the Amendment draws is between enumerated and unenumerated rights, not between individual and collective rights, and because the idea of “retained” rights is perfectly consistent with the basic theory of the Constitution—enumerated powers, retained pre-existing natural rights (see just below)? Moreover, why would the Tenth speak of both “the people” and “the states” if the powers thus reserved were meant to be reserved to the people collectively, “as states”? Reservation to “the people” would be redundant.
But second, and more fundamentally, as the Federalist argues throughout, natural rights are protected mainly not by the Bill of Rights—there was none when the Federalist was written—but by the enumeration of powers, for by the logic of the matter, where there is no power there is a right. After all, did we not have rights against the federal government during the two years before the Bill of Rights was added? Of course we did. Since the government had only limited powers, we had a vast sea of rights, all unenumerated. But are we then to imagine that by adding a Bill of Rights we actually lost most of those rights? That’s the conclusion implicit in the contention by Pulliam and many conservatives that we have only enumerated rights—as if the Bill of Rights were a grant of rights. It was not. It was simply a muniment of certain rights. And all of that was made clear by the Ninth and Tenth Amendments, which memorialized the very theory of the Constitution—as adumbrated in the Declaration’s theory of moral and political legitimacy. When understood properly, it all goes together elegantly. (See here for more on this.)
But what about the states? Here, Pulliam believes, is the libertarians’ Achilles’ heel:
Libertarians have a facile “solution” to the potentially vexing question of the states’ police powers,” which antedated the drafting and ratification of the Constitution: they contend that the 14th Amendment applied the Fifth Amendment (including the protection of “liberty” in the due process clause) to the states, particularly through the “privileges or immunities” clause, which libertarians believe was erroneously drained of its intended meaning in the incorrectly decided Slaughter-House Cases in 1873.
Drawing from the text plus the debates in the 39th Congress and in the ratifying conventions, we do indeed believe that the Fourteenth Amendment applied the guarantees of the Bill of Rights against the states, ab initio; that the Privileges or Immunities Clause means what it says, that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”; and that the Court egregiously misread that law in 1873. But we’re hardly alone in believing that. Most other scholars today do as well.
We come, then, to the heart of the matter. If both enumerated and unenumerated rights are among our privileges or immunities as citizens of the United States, as those who drafted and ratified the Fourteenth Amendment believed, then no state shall abridge them. And further—now we hit Pulliam’s sore spot—it falls ultimately to the courts to enforce those privileges or immunities, all of them—not only the right to speak but the right to an honest calling, the right to buy and use contraceptives (a right “that nowhere appears in the Constitution,” he says), and more, much more.
Thus, it’s our call for “judicial engagement” that most vexes Pulliam—he calls it “a judicially managed state of anarchy.” Fearing “judicial activism,” he would limit judges to enforcing only enumerated rights, the text and underlying theory of the Constitution notwithstanding—and in the name of “originalism,” no less. Well that itself is a form of “activism”—ignoring the law in deference to wide-ranging majoritarian rule inconsistent with that law. At bottom, then, the difference between Pulliam and libertarians is over what the Constitution itself says. Like many conservatives, he has allowed his fear of what he sees as judicial activism to color his reading of the Constitution. Is there judicial activism? Of course there is. But the answer to bad judging is not judicial abdication. It’s better judging. And that starts, and ends, with a careful but correct reading of the Constitution.
So why did this piece appear just now at “American Greatness” and a day later at “Southeastern Texas Record”? Pulliam answers that by reference in his final sentence: “President Trump should avoid jurists in any way sympathetic to this badly misguided theory.” The link is to a June 2015 decision by Texas Supreme Court Justice Don Willett, one of Mr. Trump’s “21,” upholding a claim to economic liberty, a right the Founders and the Civil War Amendment’s Framers would have thought fundamental in the Constitution’s plan for ordered liberty—and one that Mr. Trump may find attractive as well.