Posted: July 1st, 2010 by Militant Libertarian
The objections I will likely receive from part 1 of this article are these main two: (1) the fourteenth amendment guarantees to every “United States citizen” the privileges and immunities in the United States Constitution and that includes the second amendment; and (2) the states do not have a right to deprive their citizens of a fundamental right, such as the right to keep and bear arms, such that, the matter is not one of granting power to the federal government, but of limiting the state government. To these arguments, I preemptively respond.
As to the first argument, let us admit a historical fact: the states did not waive any right to govern themselves unless it was delegated to the federal government and this included the regulation of those matters listed in the bill of rights. This was held by the United States Supreme Court and State Supreme Courts up until and even after the fourteenth amendment was ratified, concluding that the States retained the power to govern themselves in those areas, except as delegated to the federal government in article 1, section 8, or expressly waived in article 1, section 10. More pertinently, the founding generation agreed that the bill of rights did not restrict the States to govern internally, much less than the powers delegated to Congress did. Thus, the argument that the fourteenth amendment gives power to the federal government to enforce against the states is a recent one in America’s history and is founded only upon the “privileges and immunities” clause of the fourteenth amendment. Unfortunately, however, this constitutional application, in part, sacrifices the federal form of government for a national form–a concept that was rejected in the constitutional convention debates of 1787 and was most certainly rejected by the Anti-Federalists. I likewise reject it.
As to the merits of this argument, I do not feel it necessary to delineate the decisions of federal courts. Admittedly, you could take your pick of cases post 1900 that would support your argument to give the federal government this power to control the States. Rather, I want to express the political dangers and implications of this argument. In essence, this fourteenth-amendment-limits-the-states argument overturns the foundation upon which America was founded: the federal government has no power to intrude upon the states in any matter not delegated to it or waived by them; the states enjoyed all natural and constitutional rights to govern themselves; the state governments were closer to the people and more apt to meet the needs of those people; the state governments could be affected and changed by state citizens more easily than the federal government could be controlled by a mass of divergent peoples; matters regarding the intricate and essentials of life must be left to the States; the inviolable separation of powers is crucial to the sustenance of a federation of states; a national form of government is more dangerous to the liberty of the people than a federal form.
These, among others, are the maxims upon which America rested. The fourteenth amendment argument opposes these principles and prevents their practicality in a real and substantial way. In short, it is dangerous. It is no wonder that the fourteenth amendment was pushed through by those modern-day nationalists immediately after the War Between the States and defeat of the Confederate States of America. I reject this argument from a political and statehood perspective and advocate, as James Madison did, for an inviolable line of separation between state and federal authority. This line is worthless to control the federal government unless the people understand it and the States enforce it.
As to the second argument that the states do not have the right to deny their citizens of a fundamental right, such that the second amendment does not so much grant power to the federal government as it does limit the power of the state governments, I find it to be missing the point entirely and calling “six eggs” by the name “one-half dozen.” That the second amendment’s purpose purportedly only limits the States and does not increase the federal government’s power attempts to hide in the passive voice what is reality in the active voice. Indeed, actions speak much louder than words: the federal government’s power is increased at the expense of the States. With the responsibility to govern comes the power to force.
Additionally, this argument ignores the matters of separation of powers; the limited nature and scope of the federal government; the essence of the tenth amendment; and the nature and character of the union formed in 1787-1789. Let us take one example to illustrate what we mean by these concepts. Suppose the Chinese government denied its citizens the right of trial by jury of their peers. Admittedly, this would deny what we consider to be a fundamental right. So, would America have the right and power to demand that the Chinese government change its law and force it to do so? Or put it in the reverse, would China have the right to force America to do this or that? The answer should be obvious: no, because neither has jurisdiction over the internal political affairs of the other. America’s and China’s powers are inviolably separate from each other. For one to attempt to encroach on the other is an act of war.
That harms may have been committed is beside the issue and does not justify foreign interference. Does the lack of power to interfere make China’s government correct? No, it does not. Likewise, the federal government’s lack of jurisdiction to force a State to do such and such does not justify a State using its power to limit its citizens of a right. Such is the price we are all willing to pay to maintain our national sovereignty. Yet somehow the price is too high when it comes to State sovereignty in America.
If the argument to enforce the federal government’s will upon the States is based upon “what the states should do,” then why not form a world government to ensure that all the governments of the world follow the fundamental laws of freedom set forth by a world constitution?–which would be, of course, enforced by a world police, military and executive leader. Why stop “justice” from reaching all ends of the earth? Why not just copy and paste the U.S. Constitution and ratify “the Constitution for the United Nations of the World”? Oh wait, the U.S. Constitution would not be suitable for the circumstances involving governing the world, and thus, there would be need for a new and different constitution for that purpose; but of course, the U.S. Constitution is perfectly conducive for self-government and freedom for a diversely-interested population of 400 million people living in geographically-unique 50 states, across an entire continent and beyond. I am sure that the founding generation would have done everything exactly the same as they did in 1787 were they to see what we see today. (Sense the sarcasm.)
Attempts to form such a world-government constitution are likely considered by those reading this article to be evil and corrupt to its core, most likely based upon the principles of self-government, limited government and national sovereignty. Indeed, and the same principles apply to the federal government’s force upon the States. Separation of powers; limited government; self-government; federalism and state sovereignty: those words are not just words to be ignored. They have active application, just as you would utilize them to rationally oppose world government. They have meanings of jurisdiction and authority to be applied on our national scale as well, and they are just as important. Just because you do not like what a particular State is doing does not justify the federal government’s intervention against that State. And even if it were “constitutional” based upon the 1868 amendment, it is flawed in its principle and dangerous in its application.
Each state has its own constitution–for political and societal reasons. If there is a State that does not protect the right to keep and bear arms, so as to limit the state government’s authority to regulate that matter (just as the second amendment limits the federal government’s power to regulate that matter), then the citizens who care about freedom in their State should endeavor to amend their constitution. At last, if it appears that freedom is utterly not capable of thriving in that populace, there are forty nine other states from which to choose, and such a fact would prove that the vast populations throughout the States do not share fundamental ideas and beliefs as to what freedom is and should not be sharing the union together. Indeed, if those people care so little about their rights, why should my State be detrimentally affected by the politicians they elect to the federal government? Furthermore, what good does it to do those citizens to exchange their State tyranny for Federal usurpation and encroachment upon all of the other States’ powers and sovereignty? They are trading in one small beast, for one very large one.
If you insist that that federal government has the power to force its will upon the States based upon the fourteenth amendment, then do not expect that this ever-intrusive, out-of-control, ever-growing and ever-taxing/spending federal government will “restore” freedom. By the nature and implication of that thought process and belief, you desire that the States be controlled by the federal government; you desire that a national form of government be maintained and perpetuated in this once-union-of-sovereign-states; you have elevated forced-union principles above individuality of State self-government; you have discounted the irreparable harm that this federal government has done to the States in the name of their “national supremacy;” you do not believe that the citizens of the States should solve State problems on State levels under State constitutions; you believe that self-government on State levels is impossible and should be used as a down-payment for the purchase of federal statism.
I agree with my good friend, Wilton Strickland: forget the federal courts and refuse to use the constitution (which was intended to limit only the federal government) as a way of controlling States and eliminating their sovereignty. Freedom will only be restored when people realize that using the federal government to solve their problems is creating a much bigger problem than the founding generation bargained for or anticipated. Get back to self-responsibility and self-government. Get back to State constitutions, self-sufficiency and self-reliance. Become a statesman in your State. Enlighten the minds of your fellow citizens. Get back to internal dignity and polite. Restore freedom in your State. Do not trample over the freedom of everyone else as you run to Uncle Sam to correct the behavior for which you should be responsible.