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The Institute for Justice on the Wonderful Congress of 1866

I’ve criticized libertarian centralists such as the Institute for Justice in the past. Granted, they are helping some individuals defend their rights; and there is nothing wrong with using whatever arguments or tactics are available to defend yourself. Even if it’s unconstitutional for the federal courts to strike down certain state laws, it’s perfectly justifiable for an innocent victim to try to do this. And for his attorneys to argue for him.

One danger, however, of using lawyerly arguments to make a certain case in zealous representation of your client is that it’s difficult to take a different stand in public; in fact, you might start believing your rhetoric. If a state is violating your client’s rights to bear arms or engage in homosexual conduct, or unjustly taking his property, you will probably end up trying to persuade a federal court that it should do something about it–and this means asserting the legitimacy, and a broad interpretation, of the Fourteenth Amendment.Again, this is fine, and justifiable; and were I on the Court, I would probably rule in the innocent victim’s favor. I would hope I would jut be honest and say I’m going to do justice, even though the Constitution does not authorize me to do so; if pressed, I might even twist the meaning of the Constitution to do so. This might even be justice. But it does not mean I’m not twisting; it does not mean that the Constitution was really meant to grant the feds this power.

And this is compounded by the fact that many libertarians, especially activists, want so badly to win, that they confuse what they want with the way things are. Just because the Constitution should not permit an income tax (2), just because federal law should not tax us–does not mean it doesn’t. And so on.

I prefer honesty–many parts of the Constitution are unlibertarian (I would argue the whole thing is unlibertarian; it sets up a central state bound to grow tyrannical, and was the result of a coup d’etat). Let’s just admit it, and criticize and oppose it.

Anyway, I was reminded of all this when I came across the April 2008 issue of IJ’s Liberty & Law. In Robert McNamara’s article “Gun Ban Case Triggers IJ Brief For Individual Rights” (IJ’s amicus brief in the Heller gun-rights case), he rhapsodizes about the wonderful Fourteenth Amendment. Here are some of his comments that caught my eye:

“One of the Institute for Justice’s great strengths is our unwavering but creative focus on our four pillars of litigation: private property, economic liberty, free speech and school choice.”


By school choice, they mean vouchers. Of course, vouchers are not libertarian. Vouchers would only increase the theft that already goes on to fund public schools, increase the influence of government over children, and turn private schools into agents of the state.

And, of course, it’s absurd to argue that the original understanding of the Fourteenth Amendment included a right to vouchers.

“The Privileges or Immunities Clause is important because it was intended to protect economic liberty.”


Was it? This seems like wishful thinking to me. The Fourteenth Amendment did increase the power of the feds over the States, in the wake of slavery and the civil war. Slavery was abolished in the Thirteenth Amendment; then you had the Fourteenth; and blacks gained the right to vote (well, black males) in the Fifteenth Amendment. The Fourteenth prevented states from legally discriminating against blacks (the Equal Protection Clause); it required states to provide due process (Due Process Clause); and it prohibited States from abridging “the privileges or immunities of citizens of the United States”.

Now, some libertarians think “privileges and immunities” is very broad, and basically means a wide set of “natural rights.” Unfortunately, they say, the Slaughterhouse Cases gave the privileges or immunities clause a too-narrow interpretation–only a few rights related to “national citizenship”, basically “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property”. When the Court came to its senses, it used the Due Process clause to do what the privileges or immunities clause was designed to do, by inventing the (to my mind ridiculous) notion of “substantive due process“–as opposed to “procedural due process”. What kind of due process is there, other than procedural, you might ask? Substantative due process protects actual rights, and basically “incorporates” most of the fundamental rights of the first eight amendments of the Bill of Rights, like free speech, etc. The libertarian advocates of a broad interpretation of the privileges or immunities clause think it should have been used directly to protect fundamental, natural rights, instead of the distorted interpretation used by the Court to cram these rights into the Due Process clause. But they are not terribly bothered by it.

In my view, a broad interpretation of the PI clause is unjustified, for several reasons. First, the arguments previously given by Berger et al. are persuasive at least that a very broad interpretation was not justified. The purpose and language of the Civil Rights Act of 1866 supports this notion. As Gene Healy explains, “There is a great deal of evidence that both the framers and the ratifiers of the Amendment saw it as preventing invidious discrimination among citizens across a narrow range of fundamental
rights–specifically, those enumerated in the Civil Rights Act of 1866, which the Amendment was designed to constitutionalize.” Second, the word rights is not used–instead, it’s “privileges or immunities.” This sounds specialized, not general. Why not just say “rights” if that’s what was intended? Third, if privileges or immunities broadly includes rights, why would Due Process (or, indeed, Equal Protection) need to be listed separately? Wouldn’t they be included as part of “privileges or immunities? Put another way: who can doubt that if Due Process, or Equal Protection, had been omitted, that modern libertarian centralists would be arguing that these rights should be included in the broad concept of privileges or immunites? Fourth: why would it take later amendments to give blacks, and then women, the right to vote, if the Fourteenth Amendment’s protections were so broad?

This is just a brief explanation of the reason many non-centralist libertarians are skeptical that the Fourteenth Amendment was really as broad as many libertarians would like it to be.

Anyway, to return to McNamara’s comments:

“The [PI] clause suffered a near-total demise shortly after its ratification when the Supreme Court read the clause out of the Constitution.”


Why, it’s almost as if you can’t trust the Supreme Court to do the right thing!! Shocking! I.e., even in the eyes of those centralist libertarians who think the Congress of, um, 1866, did a glorious job of enacting a libertarian rights amendment, and who endorse the power of the federal courts to decide on such matters–why would they trust the Congress (which after all allowed slavery for a long time; and which enacts many unlibertarian laws) and the Court (which according to them interpreted the Fourteenth Amendment wrong from the get-go)?

“Just as the Privileges or Immunities Clause was meant to protect economic liberty, it was also meant to protect all of our other rights, including the right to bear arms.”


Sure, sure–it meant to protect ALL of our rights–that’s why they said “privileges and immunities,” because everyone knows that means “all our rights.” I mean, no need to say “all” or even “rights”, right? It’s a mystery why it took subsequent amendments to protect blacks’ and women’s right to vote; and why due process and equal protection are enumerated separately in the Fourteenth Amendment, if privileges or immunities protects ALL our rights.

“this voluminous evidence underscores the powerful protection of individual liberties, including economic liberties, that was meant to be included in the Privileges or Immunities Clause–making
clearer than ever just how wrong the Slaughter-House Cases were.”


Wow, it’s almost as if you can’t trust the Supreme Court. Oh well, let’s petition to them and hope they do the right thing this time!

“[in the Heller case,] we have found a new opportunity to remind the Court that the Privileges or Immunities Clause should be restored to its intended rights-protecting glory.”


Ah, the glory of the Central State, and its munificence, its infinite wisdom and benevolence in bestowing on us the blessings of liberty, in the Fourteenth amendment (not the right of blacks or women to vote, of course! but other than that….)


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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