04. The Fourteenth Amendment (video)

0:00Okay, here we are for number four of these, and this one is on the 14th Amendment. I think this is the most difficult one of all ten of them this week, because this is a difficult issue for people of our persuasion to deal with. I am going to take a position on this issue, but it's not one that I think is reached easily, but I'm going to argue for it, and I don't think that if you disagree with me I agree with me that you're just morally perverse and should be banned from society. I just want you to be clear on that, okay? All right, well, we're going to talk today, this afternoon, about the 14th Amendment to the Constitution. It has been endlessly debated ever since it was drafted, endlessly.

0:47And when you read books on the 14th Amendment arguing what it was originally intended to do, You can't believe the complexity of the argument, how many sources are consulted, and you begin to wonder how, as a layman, you can possibly hope to form an opinion on this when informed scholars on both sides of this debate seem, on the surface of it, to make such persuasive claims. Let me begin by reading the Fourteenth Amendment, section one, because that's the section where for most of the controversy has arisen. Actually, I think for that reason I might instead just get the rest of the amendment out of the way and then we'll spend the rest of the time focusing on Section 1.

1:33So Section 2 of the 14th Amendment, most of these sections, Sections 2, 3 and 4, are not of ongoing significance to us because Section 2 involves penalizing the states for withholding suffrage from the freed slaves, and it's going to proportionately decrease their representation to the extent that they do this. Well, that provision is superseded by the 15th Amendment two years later. The 14th Amendment is declared ratified in 1868, 15th and 1870. So that one's no longer pertinent. Section 3 says, says, No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military under the United States or under any state, who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability.

2:43Well, again, that's not relevant to us today, because nobody who took part in the Southern Confederacy is alive anymore, so none of them are going to be trying to run for president at this point. As I say, they're deceased, although for all that they might nevertheless make a better president than some of the ones that we've had. Section 4 simply upholds the validity of the public debt of the United States and repudiates the Confederate debt. Section 1 All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

3:37We'll take that sentence first. This sentence is taken as overriding the Dred Scott decision, at least part of the Dred Scott decision of 1857, in which Supreme Court Chief Justice Roger Taney had in effect dismissed Dred Scott's claim to freedom because he argued that Dred Scott, by virtue of being of African descent, was not an American citizen and therefore had no standing to bring a suit in the Supreme Court, but according to Section 1 of the 14th Amendment, all persons born or nationalized in the United States are citizens of the United States and of the state wherein they reside. But then here is the second sentence of Section 1, this is the one that has been the occasion of all the controversy, and it reads, No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

4:31Nor shall any state deprive any person of life, liberty or property without due process of Law, nor deny to any person within its jurisdiction the equal protection of the laws. On the face of it, that's about as unobjectionable a statement as you could ask for. However, what has arisen ever since the drafting of the amendment, but really in the 20th century, is a debate over what exactly that very legalistic-sounding sentence was intended to do. And there are scholars on both sides, or actually more than two sides of this issue. On one side you have people like the recently deceased Raoul Berger, who was a professor at Harvard Law School, who wrote a book called Government by Judiciary, which is a long book but is worth the read.

5:27If you don't have time to read Government by Judiciary, you should at least read his shorter book, much shorter book, called The Fourteenth Amendment and the Bill of Rights, because that contains a lot of relevant argumentation. And I think that Berger, there's nothing more fashionable, or there's only a few things in legal circles more fashionable than to dismiss Berger's scholarship. But it's actually quite good, if you go into it without any particular axe to grind, it's quite good, and he makes a very persuasive argument that the 14th Amendment, in fact, was intended to be very modest in scope. It was not intended to bring about any kind of revolutionary change of the constitutional order, but rather had a very modest intent. In a moment we'll get into more detail about that modest intent, but just for right now, it was intended to protect at least the most basic and fundamental rights of the freedmen in the wake of the abolition of slavery.

6:23In addition to Berger, there's Charles Fairman, whom Berger cites at great length in his scholarship. On the other hand we have people like Michael Curtis, who since the 1980s has argued to the contrary In fact, the Fourteenth Amendment had a much broader and more sweeping intent and Curtis puts forth the suggestion that the Fourteenth Amendment was not merely this limited, modest, finite proposal that Berger suggests, but rather that it was intended to incorporate the Bill of Rights in such a way that they would apply to the states Originally, the Bill of Rights were understood to apply not to the states but to the federal government.

7:13And we can see that in the wording of the Bill of Rights. For example, most obviously in the First Amendment. The First Amendment of the U.S. Constitution does not say, Massachusetts shall make no law. That would interfere with freedom of speech or press or religion. It says, Congress shall make no law. The States, given that at the time the First Amendment was drafted, you had all different kinds of states. You had some states that had full religious liberty, like Virginia or Pennsylvania, but you also had states like Massachusetts that had tax-funded church establishments. How are you going to have a common religious policy with such disparate states? Well, the answer is, you just simply leave the federal government out of the matter.

8:00Federal government adopts a completely non-interventionist policy. That's what the First Amendment was intended to do. And that was the mainstream opinion throughout the 19th century. It was that the First Amendment and the first eight amendments to the Constitution were restrictions on the federal government that did not apply to the states. Now, of course, the states themselves have their own state constitutions which typically would provide these very protections. The idea was that the Federal Bill of Rights protects us against only the Federal Government. This position that the Bill of Rights originally was intended to apply only to the Federal Government receives sanction not only in the text of those amendments and not only in the fact that Madison himself favored applying them to the states but was overruled, we have that.

8:52So in the case of Barron v. Baltimore in 1833, John Marshall made clear that that was the consensus. He said, Had Congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection for the exercise of power by their own governments in matters which concern themselves alone, they would have declared this purpose in plain and intelligible language. So in that case, Marshall is making clear that the text of the Bill of Rights in no way indicates that they would apply to the states of the States, and that if they had been intended to, they would have been written in such a way that that would be obvious. Well according to Michael Curtis and his work on the Fourteenth Amendment, the Fourteenth Amendment changes this constitutional order, takes those amendments in the Bill of Rights and applies them to the states so that from the time of the Fourteenth Amendment onward, now the states also are bound by the First Amendment and like amendments, there's some

9:55The second controversy is to how many of these amendments were intended to be applied to the states with the second amendment apply for example but the point is that some of the particularly the first amendment was being applied to the states now and that the federal government therefore could enforce these rights against an offending state government. Now even that does not sound particularly objectionable because you know why should the state governments have the power to interfere in these types of people's and Human Rights and Shouldn't There Be Some Kind of Oversight? Well, those questions we can save for later. But for now, the scope of the argument is this. If this is true, if what Curtis is saying is true, that the Fourteenth Amendment, in fact, was intended to apply the Bill of Rights to the states, then it does amount to a very radical change to the constitutional order because it dramatically increases the police powers of the federal government.

10:47It gives it a pretext, a multiplicity of pretext for intervening in the life of the states, in the name of upholding individual rights of the Bill of Rights. Now these folks have gone back and forth arguing with each other, particularly Berger and Curtis for years until Berger's death. For years they've argued with each other over the sources, over what the drafters of the amendment said and intended, over what the people in Congress who voted on it said and intended, the different ratifying conventions around the people who voted to ratify the amendment around the country, what they said and meant, and as I say, if you just do a Google search for Raoul Berger or Michael Curtis and 14th Amendment, you'll find some law review articles online and just look at them and say, how can I possibly figure out which side is correct?

11:41Well, my own instinct is that Berger is correct, but I don't by any means put that forth to to you as an infallible statement. I could be mistaken on this, but I have no particular stake in this one way or the other. I think Berger is right. But the major argument that's made by the Curtis side is that if you look, for example, at the major drafters of the amendment, particularly Congressman John Bingham of Ohio, and you look at what he said, according It's quite clear that Bingham did intend the Fourteenth Amendment to apply Bill of Rights protections to the states and to give the federal government the power to enforce them against the states. The counter to this is that if you actually read Bingham's collected statements on the matter, he's an extremely confused and contradictory fellow.

12:35For example, Charles Fairman describes Bingham as a man of peculiar conceptions Injections, an ardent rhetorician, not a man of exact knowledge or accurate language. Alexander Bickel says, Bingham was not normally distinguished for precision of thought or statement. Another scholar, Wallace Mendelson says, Bingham is one who used ringing rhetoric as a substitute for analysis. Leonard Levy says, Bingham was extremely confused and contradictory in his presentation. So the typical reply to the claim that, well, you know, Bingham says when he wrote the amendment he intended it to have this sweeping effect, that often times the response to that is that given that Bingham is such a confusing and difficult to follow thinker, if you're going to engage in a dramatic revolution in the structure of the federal government, you can't do it on the basis of somebody whose own thought is so internally inconsistent and difficult to follow.

13:36There does appear to have been, though, and this is one of Berger's arguments, a widespread understanding that the Fourteenth Amendment was simply codifying the terms of the Civil Rights Act of 1866. Civil Rights Act of 1866 had been passed because of concerns that now that the slaves were freed, they might not have all of their rights as freemen fully respected. And so the federal government wanted to protect them even against the state governments. And in particular, the Civil Rights Act of 1866 was looking to protect the freedmen when it came to such matters as being able to enter into contracts, The Civil Rights Act of 1866 So, certainly one possible reason is that what if the Civil Rights Act of 1866 were found unconstitutional? Well, now you'd have the 14th Amendment there that would give constitutional backing to these kinds of protections. So, that's basically to protect the Civil Rights Act from constitutional challenges by actually enshrining it in the Constitution.

15:20So this is basically the Berger position, that what we see here is not a dramatic attempt to overturn the relationship between the federal government and the states, giving the federal government dramatic oversight power over the states, it really was intended to give the federal government a relatively minor oversight power over the states, just when it comes to the most basic rights of the freedmen. And we see that in some of the contemporary testimonies. We see quotations from one congressman after another saying that this is in fact what we're doing, that the Civil Rights Act of 1866 and the 14th Amendment are for all intents and purposes identical. Now with the passage of time, this Article 1 by 1925 is being interpreted in the Broadway.

16:13In the first 50 or 60 years of its existence, the 14th Amendment was interpreted more or less as Berger claims that it should have been interpreted. It was interpreted very narrowly, not as granting major oversight of the states, but relatively minor. So you had a relatively conservative Supreme Court that interpreted the 14th Amendment relatively conservatively, although they did sometimes intervene, like in the Lochner case. The Blaine Amendment was proposed. The Blaine Amendment said the restrictions of the Bill of the First Amendment should be applied to the states.

17:02Now, an argument that Berger might make would be, if the Fourteenth Amendment had been intended to apply the First Amendment to the states, of the States, why would anyone have bothered to propose the Blaine Amendment, which does that very thing? Why would it affect the same Congress, in large part, that drafted the Fourteenth Amendment? Why would they also draft the Blaine Amendment, if they had intended the Fourteenth Amendment to fulfill that function? So this would be evidence that the Fourteenth Amendment had originally been intended not to do any such thing, or otherwise it would have been absurd to propose the Blaine Amendment. But by the time you get to 1925, you begin to get, coming from the court, a doctrine that becomes known as the Incorporation Doctrine, which argues that the 14th Amendment incorporates the Bill of Rights protections against the states.

17:55And that first arises in a case in 1925, Gitlow versus New York, which is a case involving a fellow who was a communist, And he had gotten in trouble with the law in the state of New York, which had in effect a law that prohibited somebody from advocating the violent overthrow of the government. And this fellow did advocate the violent overthrow of the government, so they prosecuted him on the basis of this law. And he appealed to the Supreme Court and said, hey, they're violating my free speech rights. Well, the Supreme Court agreed that, in fact, the right of free speech was a right that the Fourteenth Amendment intended to apply against the states, and that the federal government could in effect enforce it on the state governments when they went astray and did something like this.

18:48So that's where it starts to appear, and then the doctrine really begins to get legs, in succeeding decades, where you get a full-blown theory of incorporation. There's no absolute consensus, even into the 50s and 60s, about incorporation. You do get some legal scholars who say that this doctrine seems to come out of nowhere. This doctrine seems to be being employed by Supreme Court justices who simply want to impose their views on the states. But the fact is that today, to question the incorporation doctrine would be considered incredibly idiosyncratic.

19:36It just wouldn't be done. It would be like saying that the federal government doesn't have the power to build highways because it's not listed in the Constitution. That's what Jefferson believed. The reason I say that this is a difficult issue for libertarians is that of course part of a libertarian wants to do this, wants to use the federal government when possible for the sake of preserving liberty and for going out into the world and for going out into the world and for going out into the world Let's first look at the issue of the ratification of the Fourteenth Amendment, and then see, In practice, where has the 14th Amendment gone? If the 14th Amendment could be enforced by angels, then I might support it. If it could be enforced by angels, or at the very least people whose view of rights is the same as our view of rights, then I would almost not have a problem with it, or I'd have much less of a problem with it. The difficulty

21:07is that people who are on the Supreme Court or on these federal courts could say the and at least don't necessarily have our same view of rights. So when they say, oh, we're just intervening to uphold the Bill of Rights in the states, well, their interpretation of the Bill of Rights is not always yours. As we'll see, there was a time in the 1970s where the Supreme Court almost found that the Constitution contains a guaranteed minimum income for all Americans as a right. So if you're going to say, well, you know, we need somebody to keep the states in line, so let's go with the Supreme Court, again, be careful. As I say, in strict theory, if the Supreme Court had angels on it, that might be a good idea. But in the long run, it might actually be better to have to live with some rotten state decision.

21:55At least you can move out of that state and you have some recourse. Let's first take a look at the ratification of the amendment, because this is a matter of controversy that got me into a lot of trouble for raising it in the Reconstruction chapter I'm only repeating a totally mainstream interpretation. I found it hilarious. People had never even heard of this before. The argument that the Fourteenth Amendment was not constitutionally ratified. The old National Review used to just take this for granted. Old conservative publications, libertarians, all understood this. In the 1950s, U.S. News and World Report published an editorial saying, of course we all know the Fourteenth Amendment wasn't legitimately ratified. There are a few factors to take note of when we look at the ratification of the 14th Amendment.

22:53First we have the fact that the amendment was proposed in Congress and two-thirds of the people present voted to approve the amendment, and then it gets sent out to the states and then three quarters of the states have to ratify the amendment for it to take effect. Well one thing we can note about the passage of the fourteenth amendment is that it was not, shall we say, entirely without blemish. At the time that the amendment was set to John P. Stockton was a newly elected senator from New Jersey. He was known to be an opponent of the Fourteenth Amendment. He duly took his seat in the U.S. Senate at the beginning of the 39th Congress.

23:43Well, informal canvassing of senators made quite clear that there was no two-thirds majority in favor of the amendment at that time. In fact, it turned out that the amendment would have been one vote short of passage. So a motion was introduced not to seat John Stockton, but he's already been seated. This is the problem. He's already been seated. So you can't really vote not to seat somebody who has been seated. If he's been seated and you want to get rid of him for one reason or another, you have to vote to expel him. But expulsion requires a two-thirds vote. They didn't have a two-thirds vote to expel them.

24:29So they voted not to seat somebody who had already been seated. It's sort of like, how can something be both A and not A at the same time and in the same manner? So they voted not to seat this man who had already been seated, and then they went ahead and voted to approve the Fourteenth Amendment. Now that's really not legal, it's not a proper procedure, That's actually the least of the problems associated with the amendment. Then it goes out to the states. Now, Tennessee ratifies the amendment. But here's how Tennessee ratified the amendment. The problem that was occurring in Tennessee was that opponents of the amendment were refusing to show up at the statehouse and thereby preventing a quorum. You have to have a certain minimum number of people present in order to conduct business.

25:16Well, opponents of the amendment thought one way to prevent its ratification In order to get a quorum, two of the anti-amendment Tennessee legislators were actually kidnapped and forcibly brought to the State House and declared to be present so that the vote could take place. There are some sticklers who think that kidnapping is immoral, who would throw some doubt on this, the legality of this. The thing is that when the House Speaker called the roll, well these two representatives refused to answer. They refused to say they were present because in their mind they weren't, spiritually they weren't present. They were only there under duress, I mean really by force.

26:05So they refused to answer the roll but nevertheless they were declared present so that the amendment could be ratified. In Oregon there was a situation that was at least as irregular as that one. In Oregon, you had a case where the legislature of Oregon voted on the amendment and they voted to approve the amendment. But then it was discovered that two of the Republicans who had been elected in Oregon had actually not been legally elected. When they actually looked again at the votes, it turned out that Democrats had been elected in those two seats. So two Republicans were removed and replaced by two duly elected Democrats. So some people thought, well, we should re-vote on the amendment now that we have the legitimately New Jersey and Ohio is not quite so clear cut, but arguably there is at least some kind of irregularity here.

27:15because both of these states rescinded their ratifications and they rescinded them though before the amendment went into effect it was still being voted on by other states I mean you could argue that if the amendment has already gone into effect and then you vote to rescind your ratification it is probably too late but arguably they may at least have had some right to withdraw but they were told once again, sorry we take your first answer and New Jersey in particular at the time that they attempted to withdraw their ratification

28:141867 rolls along, the radical Republicans in Congress who are the wing of the Republican Party who favor a very harsh settlement with the South. Now that they're in power, in 1867 they declare the, other than Tennessee, they like Tennessee because Tennessee ratified the 14th Amendment, but other than Tennessee, the other former states of the Confederacy, the other 10 states were declared in 1867 to be illegal, without legal governments, And they're going to be militarily occupied, they're going to be divided into five military districts, they're going to be deprived of self-government, they're going to have, in effect, military courts open. So that was all declared in 1867. That was said about the southern states.

28:59But at the same time, these same states were told you have to ratify an amendment to the Constitution. Now they're trying to have their cake and eat it too, because either they're legal states or they're not. If they are legal states, then you shouldn't be occupying them with the military. If they're not legal states, then you can't ask them to ratify an amendment to the Constitution, because they're not legal states. You may as well ask France to ratify an amendment to the U.S. Constitution. It would be perfectly irrelevant. In other words, you're depriving them of all the privileges of statehood, but nevertheless you're going to impose on them one of the burdens of statehood. You're going to actually demand that they ratify an amendment to the Constitution when you yourself have just said they're not even legal. The States as constituted in the South are not legal, so it's been argued that therefore their votes could not have counted.

29:47In no way could an illegal state, by definition, that vote for the amendment be counted as a vote in favor of the amendment. That's not to mention the coercion involved here. There was one congressman who said that when the 14th amendment was sent out to the states, The Tennessee approved it, but the other ten southern Confederate states rejected it. The northern congressmen who said, well, the southern states have rejected the 14th Amendment, so we're going to march upon them at bayonet point until they do ratify it. Well, most legal principles would have it that a decision that you're forced to make under duress is not legally binding. So we have that difficulty as well. And for these reasons and even several others, Very recently, like early 1990s, Forrest MacDonald concluded that the 14th Amendment was never constitutionally ratified.

30:43Now, Forrest MacDonald is not some wacko lunatic. I mean, he's received countless honors. He's a Jefferson lecturer of the National Endowment for the Humanities. He's like the highest honor you could get. He's not a nutcase. He's repeating what was kind of a standard view for a good long time. In a long time, he repeated this position and lays out the evidence for it in an article that appeared in the Georgia Journal of Southern Legal History. It's well worth reading. I give you the exact citation on it. So we have this, I think, pretty strong case that the amendment is not constitutionally ratified. We'll return to what the implications of that are. What I'd like to do at this point is look at where in recent years the Fourteenth Amendment has gone.

31:40And in at least some cases, I'm grateful to the work of Gene Healy, who is with the Cato Institute, Mises Institute, and most of them are very, very pro 14th Amendment. Healy has been a source of skepticism about it, and if you want to get a good overview of Healy's thinking on this matter, there's a, on the Mises Institute website, there is a, there's a link to, what is it, unpublished papers, working papers, and if you do, if you go through the working papers, you do a little search for Healy, it'll bring you right to, right to that paper, it's excellent, I mean, he needs to publish this and do more and more with it. But Healy raises some serious objections by, for one thing, pointing out what the amendment has actually been used for. I mean, let alone, forget about all the sugary saccharine language about we're going to protect people's rights and this and that.

32:31What has it actually been used for in practice? Well, for example, and I cite this in my Reconstruction In the case of U.S. versus Yonkers, you had a federal judge who demanded that the city government of Yonkers had to build basically scatter-site public housing throughout Yonkers so as to bring about racial integration in the schools. Now that, you know, I know there are people in Washington D.C. who don't think there's anything wrong with that, but this is sort of disruptive to normal community life to have this sort of thing be done and to require that people pay for this. But this was done so as to bring about equality in the schools supposedly.

33:17And if Yonkers did not comply with this, the court imposed a fine, a non-compliance fine that would have bankrupted them within three weeks.

33:57The State Constitution and allowing for busing or whatever other purpose, even if such a tax increase was actually barred by the state constitution, a federal judge could override that. And that's all in the name of the Fourteenth Amendment, so as to grant people the equal protection of the laws and so on and so forth, whatever phrase they're going to refer to there. Now Healy anticipates an objection here. He says, and I understand libertarians will come back with, well, serves you right for having public schools in the first place. The Court in 1964 ordered the county to raise the taxes and reopen the schools in the name of the 14th Amendment.

34:55So, you know, yet again, here you have the 14th Amendment being used for a purpose that is obviously not compatible with a classical liberal understanding of government. Healy likewise points out that when the Virginia Military Institute was forced to abandon its male-only admissions policy, rather similar to the Citadel in South Carolina, one of the, You might think, well, it's a public institution, they should be forced to admit anybody they want. Well, one possibility was that the Virginia Military Institute could have just become private and then maybe the 14th Amendment wouldn't have applied to them, but they bore in mind this precedent whereby in the 1960s when Virginia closed down its schools and just in effect had a private school system at that point, they were ordered to reopen We have here cases that are at the very least disturbing from a libertarian point of view.

36:14We then have the fact that David Bernstein writes that during the Warren Court era, liberal Several legal scholars hoped that the Supreme Court would even find a right to a minimum income in the Fourteenth Amendment. Had it not been for the Nixon administration's appointment of several new, more conservative justices, the Supreme Court might very well have entrenched the American welfare state in the morass of modern constitutional law. Now of course the irony here is that the Nixon administration favored a minimum income as part of their domestic policy. Nixon was notoriously bored to death by domestic policy. He used to say that the American economy is so strong it would take a genius to wreck it. So it could basically run itself, and the president really should be dealing with foreign policy. Probably sound, given that every time Nixon did deal with domestic policy, it was terrible, like wage and price controls.

37:04I mean, my gosh, take your own advice. Let Nixon be Nixon. Let him deal with the other stuff. But actually, don't even let him deal with that, actually, as a matter of fact. It's not good to either one of them come to think of it. But, yeah, Nixon's Family Assistance Program had actually seriously proposed a guaranteed minimum income for all Americans, for heaven's sake. So that came very close to happening. So the reason that there has been some libertarian concern about the 14th Amendment is that, of course, on the surface it sounds wonderful, but in practice there were human beings with agendas who were employing the 14th Amendment and they're taking some of these phrases and using them as loopholes to drive trucks through to apply all kinds of undreamed of measures to the states, by no means all of which are compatible in any way with liberty.

37:55Now, California has been the subject of all kinds of 14th Amendment difficulties in recent years. In 1996, California was, first of all, California, as you all know, has been having budget problems forever. I mean, what other explanation can there be for the fact they voted for Arnold Schwarzenegger to be their governor? Maybe they think that he can use some of his movie hero kind of tactics to cut the budget or something. No one knows what to do in California anymore. They've all gone crazy out there. Is anybody here from California? Yes, I knew it. I knew I was going to regret saying that. But I'm sure you agree with me. There's definitely something not quite right out there. Well, these poor folks, they're trying various things and the Supreme Court keeps, or some federal court keeps intervening largely on 14th Amendment grounds. For example, in 1996, the California government wanted to respond to the fact that because they have relatively high welfare payments, a lot of people from around the country were

38:51moving out to California for the express purpose of going on welfare there. And the California law was passed in 1996 that said that, all right, if you come to California and you go on welfare, the first year you're on welfare, you are restricted to whatever amount you would have received in your state of origin. But then in subsequent years, you get all the full benefits of California welfare. Well, this obviously, I mean, this is just like the Nazis, right? It's incredible that anyone would even think of doing something like this. And sure enough, the court declared that this was to be struck down. This California law was to be struck down. So in effect what the court is saying is, in effect you're going to have to raise taxes to pay now the higher welfare benefits.

39:40So you've got courts in effect imposing taxes. They're striking it down on 14th Amendment grounds because they say that it violates the right to travel. If I can't get the full California welfare benefits, then my right to travel is being impaired. This is where it goes. Again, you think, oh, well, this is wonderful. We'll just force the states to be nice to people. The problem is you have stark raving lunatics enforcing this thing. That's the problem. If you had angels, it might be another matter. Then there was the notorious, two years earlier than that, in 1994, there was the notorious Proposition 187, California dealing with the immigration problem. I read about a month ago that Arnold Schwarzenegger had said at one time, he said very recently, we need to build a fence and stop the illegal immigration thing.

40:27And then in like three seconds, there was such a huge outcry that he said, oh, no, no, my English was very bad. I didn't mean build a fence, I meant welcome people with cakes. That's what I meant. Sorry, you took it as a fence. I'm sorry. Well, anyway, the problem in California was that they have so many illegal immigrants Proposition 187 would have said that if you are an illegal immigrant, then you can't get free taxpayer-funded services in the state. Well, I'm sure some of you remember that at the time this was proposed, every fashionable person in the country, on the left and the right, denounced it.

41:14Jack Kemp, Bill Bennett went out there and told these people, don't you do this, and all the leftists were against it, and whatever. Even some libertarians were against it. And I thought, well, here's something that actually cuts the budget. Why would you be against it? Like, it cuts the budget, right? Well, it passed by two to one. Californians totally ignored this, like, huge campaign to get them not to pass. They passed it by two to one and then they were told by a federal judge, sorry, you can't actually enforce this because it violates the 14th Amendment Equal Protection Clause. Somebody who is illegally in the country is equally entitled to free stuff as anyone else. That's the argument that's made. Now, I don't think I even need to ask, do you think people who drafted the 14th Amendment were thinking that we're going to give absolutely free services to people?

42:02The question answers itself. Well, one of my favorites was California passed a measure, in effect, abolishing affirmative action in state university admissions. Well, that's, you know, it's not really directly a libertarian issue. It means there are state universities and, you know, that sort of complicates the question. But what's significant is that immediately the Clinton Administration Justice Department intervened on 14th Amendment grounds to try to get that overturned. Now let's pause and understand what is happening there. What's being done in that measure is we're saying that we're not going to give special privileges to members of different racial groups or give them special consideration in admissions.

42:53We're going to view people on the basis of merit alone and treat all the races equally. Well, isn't that what the 14th Amendment calls for? Equal protection of the laws? But yet in the name of the 14th Amendment, the Clinton Administration Justice Department intervenes and says, We need equal protection of the laws, so you need to reestablish a racial quota system. So in other words, the Clinton Administration is calling for more or less the exact opposite of the equal protection of the laws. They're calling for a racial caste system and racial preferences, as if that's what the 14th Amendment calls for. Well, you may well say, well, these are all very regrettable, but nevertheless, it's still better to have the 14th Amendment than not to have it. Well, that's a legitimate position, but we should at least be aware of where the thing can lead.

43:39Well, I'd like to return to Healy again, because I think he raises some interesting points that can guide us in our own thoughts on this matter. Let's return to Healy again, because I think he raises some interesting points that can guide us in our own thoughts on this matter.

44:00And he begins his argument by recalling the life-sender Spooner position that's come up a couple of times over the past couple of days. Spooner was a 19th century thinker who believed that in the absence of consent, authority is not binding on an individual. So in politics, for example, that means that unless I have myself expressly consented to a political order, then it cannot be said to be binding on me. I never signed the Constitution, I never gave any expressed consent to it, And you cannot conclude simply on the basis of my living here and enjoying the advantages of this place that I'm giving some kind of formal consent.

44:45I'm not. Consent is consent. We know what consent means from every other aspect of human life. And so Spooner comes to the radical conclusion that the Constitution is not binding on people because none of us were involved in drafting it or signing it or whatever. And in the absence of a unanimous consent, you cannot apply the Constitution to every single person. Well, what Healy says is that in reality, of course, as Spooner himself acknowledged, this kind of consensus, a unanimous consensus, is not going to occur. It's basically impossible. And Spooner acknowledges this, and this is why he argues the way he does, Healy says that since you can't get this type of consent, then typically, you know, government is not legitimate.

45:35Well, obviously other political thinkers have not been willing to take such a radical step, but Spooner does. Well, Healy says that we realize that we're not going to get absolute universal consent to a government. He said, but the next best thing, in the absence of that, if we are going to live under a government to which we haven't given our individual consent, Then the next best thing we can live under would be what Healy calls constitutional consent. And so that is that, he says that the theory of the Constitution is that the people of the states hold the power, and they delegate some of this power through their state to the federal government, and they can amend the Constitution through two-thirds of the Congress and three-quarters of the states, and this is at least some way that at least So, he says, therefore, that this helps us to understand what we should think about the The 14th Amendment, because he says that given that the 14th Amendment was not constitutionally ratified and therefore does not enjoy any kind of constitutional consent,

47:04it is not the fruit of freely given consent on the part of the people, that has to influence the way we interpret the amendment, because he says that we should interpret the 14th Amendment as narrowly as possible, Regardless of how all these debates between Raoul Berger and Michael Curtis come out, whether the Fourteenth Amendment was intended to be this broad or this broad, it doesn't matter in effect, says Healy, because given that it wasn't legitimately ratified, but given that we do want to live under a regime in which we give consent to how we're governed, we never gave consent, legitimate consent to this amendment, then therefore justice demands that it be interpreted as narrowly as possible. Okay, I think that's an interesting way of thinking about it.

47:50Now, the other way of thinking about the 14th Amendment would be the kind of approach that you get from Bruce Ackerman of Yale University. Ackerman would say that you don't always have to have amendments to the Constitution, or legitimately ratified amendments to the Constitution, in order for the constitutional order to legitimately change. He says that in history there are moments, there are constitutional moments that occur, where there is such an outpouring of popular support for expanded federal powers, that it renders the formal amendment process unnecessary. You can just say, you know what, I'm having a constitutional moment. We're all sort of mystically giving the federal government new powers.

48:37It's a constitutional moment. He says, for example, the New Deal in the 1930s, Franklin Roosevelt supposedly trying to get us out of the depression, he's doing things that are obviously not authorized by the Constitution, but that's okay, says Ackerman, because, guess what, that was a constitutional moment. Now, where this goes, I think it's obvious enough, how would you control a government like that, that could always just claim, well, maybe you don't like what we're doing, but guess what, my friends, you know what time it is? Constitutional moment, baby, okay. Same thing would apply to the 14th Amendment. Forget about the ins and outs of how it was ratified or whatever. It's a constitutional moment. Jump on board. Get with it. And Healy is arguing that this is not a legitimate perspective because given that, again, we can't live under the spoonerite view where everybody gives his consent, at least in the short run that's not going to happen, 1, he believes the next best is constitutional consent and given that in no way can it be

49:38said that that was granted through the procedures of the Constitution, then we cannot proceed as if the 14th Amendment is a broad radical reconstruction of the constitutional order. That type of thing can be done only through at least some institutional form of popular consent and that's lacking in this instance. There's an interesting statement by, of all people, Richard Posner, a sort of Chicago-affiliated guy, who says apply the Bill of Rights to the states through the due process clause and you weaken the states tremendously by handing over control of large areas of public policy to federal judges. It is hard to believe that this was intended by all the state legislators whose votes were necessary to ratify the Fourteenth Amendment.

50:28and in fact about