The Constitution Was Not A Libertarian Document

The Constitution Was Not A Libertarian Document

Over at Volokh Conspiracy, everyone and their brother is going on about how wonderful it is that the Supreme Court may have to decide whether state laws prohibiting various sex toys are constitutional or not. Professor Somin is the latest to chime in with this attitude that of course such laws are unconstitutional:

The US Court of Appeals for the Fifth Circuit recently struck down Texas' law banning the sale, lending, or giving away of sex toys. I think that the court was right to conclude that the sex toy ban is unconstitutional under the Supreme Court's decisions in Lawrence v. Texas (which invalidated laws banning both homosexual and heterosexual sodomy), and Griswold v. Connecticut (striking down bans on the sale of contraceptives).

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. However, as the Fifth Circuit opinion notes (pg. 8), the Lawrence decision was deliberately written to avoid basing its reasoning on the anti-homosexual motives behind anti-sodomy laws. Instead, "the [Lawrence] Court explicitly rested its holding on substantive due process, not equal protection. ... [T]he Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion."

I think this is a stupid law. Unfortunately, it is rather difficult to persuade some people that there's a difference between "stupid law" and "unconstitutional." The U.S. Constitution was not, and is not, a libertarian document. At best, it limited federal power in most areas (which the Court has generally ignored since the 1930s), limited state power in a few areas (see Art. I, secs.9 and 10), and pre-empted state power in a few others by granting these powers to the federal government (see Art. I, sec. 8). But it otherwise left nearly all power to the states. State constitutions could, and often did, protect individual rights from state tyranny, but the U.S. Constitution wasn't limiting their power.

Significantly, states engaged in all sorts of regulation of sexual morality for many decades after ratification of the Bill of Rights: laws banning adultery, sodomy, premarital sex, prostitution, and obscenity. And oddly enough, I can't seem to find any examples of courts striking down those laws for violating this libertarian Constitution until very recently. This is rather like the academics who are convinced that the Second Amendment couldn't possibly protect an individual right, and then spend time trying to twist the historical evidence to suit the public policy conclusion that they want.

Starting with the 14th Amendment, bits and pieces of the first eight amendments have been slowly applied to the states. Proponents of the 14th Amendment, such as Rep. John Bingham, were very clear that the privileges and immunities clause would impose the first eight amendments to the states. The Court, for a variety of stupid reasons, chose to ignore the privileges and immunities clause, and engaged in what is called "selective incorporation," slowly applying some (but not all) of those protections to the states through either the due process or equal protection clauses of the 14th Amendment. While they might be achieving the original intent, piecemeal, it was certainly not what was expected.

Sometimes, however, rights have been plucked out of the behinds of some federal judges that can't be found in either the text, or the historical record of original intent. In the case of Griswold, Justice Douglas's opinion concluded that there was some right of privacy:

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

Yet somehow, in spite of almost a century and a half of meddling in "the privacies of life" with all sorts of laws regulating sexual morality and contraceptives, no one seems to have noticed the conflict before. As stupid as this law was, Douglas was just reaching into thin air to find a basis for striking down a law he didn't like.

Even worse was Justice Goldberg's concurring opinion that found that the Ninth Amendment in some way limited state authority to pass stupid laws. Yet Madison (who was actually a proponent of a Bill of Rights that limited state power) was very clear that the Ninth Amendment limited only the federal government--not the states. See Annals of Congress, 1:456, where he very clearly recognized that there was legitimate concern that creating an enumerated list of rights might be interpreted as meaning that any rights that were

not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempt it, as gentlemen may see by turning to the last clause of the fourth resolution.

You can read the "last clause of the fourth resolution"--the ancestor of the Ninth Amendment, at Annals of Congress, 1:452.

As previously mentioned, proponents of the 14th Amendment, such as Rep. John Bingham, were very clear that the 14th Amendment's privileges and immunities clause only imposed the first eight amendments on the states. Why only eight? Because the Ninth Amendment, as Madison observed, was to protect against federal denial of individual rights:

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

The Tenth Amendment was not limited to protecting individual rights; it included provisions that protected some elements of state power from an overreaching federal government:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

No matter. It doesn't matter what the Constitution says, or what everyone understood it to mean in 1789, or in 1868. This attempt to reimagine the Constitution as being a libertarian manifesto is historically inaccurate.