Archive | August 6, 2010

In related news, Butler Shaffer is puzzled as to why gay-marriage advocates “want to have the state certify [their] relationships with others” as opposed to just “perform[ing their] own ceremony of marriage without getting the state’s approval.”

The answer, obviously, is that the state imposes special burdens on couples who don’t marry in the approved manner. If, for example, you want to be able to visit your hospitalised spouse, or want to marry a noncitizen and not worry about their being deported, only a governmentally approved marriage will do.

It may be asked why civil unions, rather than something explicitly called “marriage,” wouldn’t be good enough for such purposes. Of course most opponents of gay marriages oppose civil unions too; but in any case, words matter. Suppose that all government documents used the n-word to refer to blacks, but didn’t otherwise treat them differently from anyone else. Wouldn’t blacks still have a basis for complaint? (I owe this point to Jacob Levy.)

Lew Rockwell argues that since marriage and immigration are “mentioned nowhere in the constitution,” it follows that each is “no business of the federal congress.” Hence “no federal judge has authority” to strike down either California’s ban on same-sex marriage or Arizona’s harassment of immigrants.

I disagree. The 14th Amendment states: “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”

My present concern is not with the merits of the 14th Amendment (or indeed of the Constitution generally) – just with its interpretation. (That means that, for one thing, I am not concerned with whether the 14th Amendment was legitimately ratified; after all, I think the entire Constitution was illegitimately ratified so I don’t much care whether there’s some additional procedural problem with one particular piece of it. I am also not concerned, for the purposes of this post, with whether imposing libertarian standards on the states is a good or bad strategy (I’ve said a bit about it elsewhere). As Lew writes, “I have many problems with the US constitution, but it is the legal regime we are told we live under,” and all I’m discussing at present is what the Constitution, as we currently have it, actually implies.)

So what does “equal protection of the laws” mean? Clearly, it must mean that the states are forbidden to grant special privileges to or impose special burdens on some people and not others.

Hence if the state of California denies to same-sex couples a right it grants to opposite-sex couples, or if the state of Arizona treats immigrants from Mexico differently from the way it treats immigrants from New Mexico (note that the clause’s language concerns persons, not citizens), how is this not a violation of the equal protection clause? Indeed, how could any law that violates Spencer’s Law of Equal Freedom fail to run afoul of the 14th Amendment? (Justice Holmes famously opined that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” I think he was wrong about that.) Hence neither California’s marriage-apartheid law nor Arizona’s ethnic-cleansing law (and yes, those are the descriptions we should be using) passes constitutional muster.

Lew goes on to add: “Unfortunately, in the American system, there are only states rights. This was a mistake. There should also be town rights, county rights, etc. as Jefferson noted.”

Now it’s true that the Constitution makes no mention of town rights or county rights. But it doesn’t follow that it specifies only states’ rights. It also specifies individual rights. And while some of these individual rights, as originally described, were rights against the federal government only (the First Amendment explicitly so), the individual rights in the 14th Amendment are clearly rights against the states.

Indeed, the 14th Amendment, consistently applied, acknowledges a right of secession by towns, counties, and even individuals. Here’s why.

First, the Constitution cannot forbid state secession, since in view of the 10th Amendment it could do so only if the power to sever a state’s connection with the union were either reserved to the federal government or denied to the states, and no language in the Constitution does either. Hence any state has a constitutional right to secede.

But once we conjoin the 10th Amendment with the 14th, we see that if a state, while remaining in the union, were to deny to individuals or subdivisions within its population the right to secede from it, it would be denying to its populace a privilege it enjoys itself, and thus would be in violation of the 14th Amendment’s equal protection clause. (Logically, equal protection of the laws must imply not just equality among those governed but also equality between governor and governed.)

It may be objected that those who wrote and/or ratified the equal protection clause did not intend thereby to establish such sweeping libertarian conclusions. I agree that they did not (though making generalisations about the “intent” of a diverse collection of hundreds of people is risky; at best we can say that most of them probably did not). But for reasons I’ve explained elsewhere (see here and here), I also agree with Spooner that the interpretation of legal language should be based upon the public meanings of the words and not upon the (in any case unascertainable) private intentions of the authors and/or ratifiers.