I wrote briefly about the Congressional amicus curiae brief [pdf] in support of the petitioners in McDonald v. Chicago when it was submitted. We saw a great deal of support from both sides of the political spectrum, but one signature was notable for its glaring omission: Ron Paul.

I’d been wondering about that, and Howard Nemerov was able to get a statement from Dr. Paul’s office:

Congressman Paul’s DC office said he didn’t sign the brief because he believes that it interferes with state’s rights, whose policies shouldn’t be dictated by the federal government.

Let’s get a few things straight here, people. First off, states do not have rights. Like any other government, they have powers that are delegated to them by the people. Only people have rights.

Second, the 14th Amendment does not conflict with the 10th, and in no way does it interfere with the agendas of individual state governments.

Some background:

The 10th Amendment has undergone a bit of a renaissance over the last year. The Federal government has long been over-reaching with a rather loose reading of the Interstate Commerce Clause. Though the Rehnquist Court had long been keeping abuses of the clause in check, a schism took place in the 2005 case Gonzales v. Raich.

In Gonzales, the Court ruled that the cultivation of marijuana for personal, medical use was illegal under Federal law, even if it was legal under California law. Despite the fact that “commerce” was in no way involved, the Court found that the clause applied because of “the likelihood that the high demand in the interstate market will draw such marijuana into that market.”

In his dissent, Justice Thomas lamented,

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.

The Gonzales decision was closely followed by the Court’s disastrous reading of the Takings Clause in Kelo v. City of New London. Reaction to the Kelo verdict was swift, and a movement began to revive the ailing 10th Amendment.

I’m very supportive of the initiatives taken thus far. Dr. Paul deserves credit for his work in bringing attention to the issue. I agree with many of his positions.

But I can’t understand how a man who calls himself a libertarian and a “Constitutionalist” opposes an originalist reading of the 14th Amendment.

The concern now, as it was in 1868, is that the 14th Amendment somehow violates the principles of federalism and stands in the way of self-determination for states. This is a stilted reading of the matter. As the Paragon Foundation brief [pdf] explained:

Federalism is central to this Republic and dearly important to amicus curiae. However, federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights. States cannot sacrifice those rights on the altar of federalism. p. 9

As Justice Brandeis wrote in his dissent in New State Ice Co. v. Liebmann,

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

The 14th and 10th Amendments can coexist gracefully. States still have power to pursue their own economic and social policies, but by no sane interpretation can they infringe on the basic rights of citizens enumerated in the Bill of Rights.

This idea goes back to the framers. Madison believed that the federal government was ultimately responsible for the protection of our rights, even when the states failed in that regard. An early draft of the Bill of Rights had the passage, “no state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.”

In Federalist #51, he wrote,

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.

The 13th, 14th and 15th Amendments were drafted to rectify such abuses. An Amendment guaranteeing liberty to all Americans fits right in with Madison‘s ideas.

Federalism did change a bit during Reconstruction, and I for one am not the least bit sorry that it did. We needed clearer, more specific protections of civil rights than were given by the Framers. Akhil Amar has pointed out that the contours of the 2nd Amendment (among other civil rights) changed between 1789 and 1868. It was an organic, logical evolution, to which I doubt any of the Framers would have objected.

Madison’s proposal for a Bill of Rights stated,

In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty. (…) It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.

The Constitution grants certain powers to the Federal government, which are clearly defined and should be narrow in interpretation. The remaining powers of government belong to the states, which are entitled to a great degree of sovereignty in their policies.

However, the ultimate sovereign in our system is the individual. Federalism stops where the Bill of Rights begins. The 14th Amendment, particularly the Privileges or Immunities clause, is the guarantor of that idea.

Regardless of one’s position in the libertarian spectrum, the ultimate idea is the same: when there is a confict between state interest and individual freedoms, the rights of the individual stand paramount.

Could someone please explain this to Ron Paul? I find it sad that Harry Reid, Arlen Spector and Olympia Snowe have shown more interest in civil rights than he has in this case.