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Ron Paul Versus The Fourteenth Amendment

One thing that’s overlooked by those who defend Ron Paul on civil liberties grounds is Paul’s staunch opposition to what I would argue is the greatest boon to liberty in American history: the 14th Amendment. If it were up to Ron Paul, it’d be removed from the Constitution, and he’s said so on numerous occasions. Not only because of his opposition to Birthright citizenship, but because of his opposition to applying the Bill of Rights to state governments.

The grand centerpiece of the 14th Amendment is this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor 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.

Over the course of decades of jurisprudence, this portion of the Amendment has been interpreted into what is known as the “Incorporation Doctrine” – which basically says that the Bill of Rights applies to the actions of States, not just the Federal Government. (It’s been a bit haphazard – different parts of the different amendments have only been applied to the states ad hoc, over time, as cases come before the Supreme Court.)

It’s the Incorporation Doctrine that prevents states from imposing religious doctrines in schools. It’s the Incorporation Doctrine that prohibits states from abridging free speech. The Incorporation Doctrine that provides that states have to provide fair trials and compensation for eminent domain. It’s the Incorporation Doctrine that says that state governments infringe on the right to bear arms.

A President Paul may not be able to override Congress on matters of foreign policy and the drug war. But I don’t think he’ll have any problem getting ultra-conservative judges who take a dim view of the Incorporation Doctrine appointed to the Bench – there are definitely legal circles where this is a popular position. He might not be able to get the 14th Amendment repealed, but I wouldn’t be terribly surprised if he made a good go at it. If not through outright repeal, then by passing legislation limiting the jurisdiction of the courts over different state government issues (he’s introduced legislation in the past to this effect).

It’s precisely for this opposition to Incorporation that’s made Ron Paul popular among politically conservative Evangelicals. As Benjy Sarlin notes:

[Rev. Phillip] Kayser and other endorsers praise Paul’s opposition to federal encroachment on states’ rights, especially via the judicial system. The idea is that even if they don’t agree with him on individual issues, Paul’s ideological belief that almost all federal intervention into states laws are unconstitutional would give them more latitude to restrict abortion and gay rights in their own states and communities.

In an interview with TPM, Christopher J. Neuendorf, pastor of Holy Cross Evangelical Lutheran Church in Davenport, Iowa described this “liberty” as Paul’s chief selling point.

Historically speaking, and especially in the last 70 years, the biggest battles for civil liberties have been against infringements by state governments. And the Incorporation Doctrine has been key to that battle in stopping those infringements. But a Ron Paul Presidency would lead to a weakening, if not eventual outright reversal, of Incorporation. Leaving state governments once again able to attack civil liberties more vigorously.

Nehemiah Scudder was a non-interventionist, too.

(cross-posted to League of Ordinary Gentlemen)

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About Alex Knapp
Alex Knapp writes about pretty much everything under the sun, including politics, art, religion, philosophy, sports, music, culture, and science.

Comments

  1. Good post.

    Like or Dislike: Thumb up 6 Thumb down 6

  2. Dean Barnett says:

    Gotta love a man who references Nehemiah Scudder

    Like or Dislike: Thumb up 1 Thumb down 6

  3. MBunge says:

    The warm feelings for Ron Paul by people ranging from Andrew Sullivan to Glenn Greenwald demonstrate the unseriousness of their thinking.

    Mike

    Hot debate. What do you think? Thumb up 18 Thumb down 5

  4. Ben Wolf says:

    So we have Paul who’s rhetoric is hostile to the 14th Amendment vs. Obama who’s actions are hostile to the 1st, 4th, 5th, 6th and 8th Amendments.

    Hmm, decisions . . .

    Highly-rated. Helpful or Unhelpful: Thumb up 36 Thumb down 21

  5. Ben Wolf says:

    @Ben Wolf: who’s = whose

    Like or Dislike: Thumb up 4 Thumb down 9

  6. OzarkHillbilly says:

    @Ben Wolf:

    Obama who’s actions are hostile to the 1st, 4th, 5th, 6th and 8th Amendments.

    Oh please, enlighten us lowly peasants.

    Hot debate. What do you think? Thumb up 11 Thumb down 18

  7. Libertarian Woman says:

    Thing not mentioned is RP would go through the constitutional process to remove this amendment, not ignore it like the other candidates and our president have done with parts of the constitution THEY don’t like. So that still makes RP the most pro-constitution candidate.

    Hot debate. What do you think? Thumb up 22 Thumb down 11

  8. Ernieyeball says:

    @Libertarian Woman: Damn. I can’t wait! I sure hope I get more “equal protection of the laws” and more “due process” than you do after Amendment XIV is repealed.

    Maybe states can compete with each other for inhabitants based on these ideas.
    Texas: Less due process means lower taxes! Just don’t spit on the sidewalk or we’ll hang yer ass.

    Like or Dislike: Thumb up 9 Thumb down 2

  9. Ernieyeball says:

    @Libertarian Woman: What am I thinking? Of course I will be better off when the states are able to “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
    Yer a woman aren’t ya? Now us god fearin’ men can get laws passed to keep yer submissive self in the kitchen where ya belong!

    Good thing the Equal Rights Amendment was never ratified. Ron Love Paul would have to use the constitutional process to get rid of that anti states rights nonsense too!

    Like or Dislike: Thumb up 8 Thumb down 1

  10. Richard says:

    @MBunge:

    I really get the impression with Greenwald that he’d be telling us all to buy boxes of “Ron Paul for President” buttons if Paul were only just slightly less of a kook.

    As it stands, he was left to write an “Obama=evil monster!, Paul= progressive!” article that had to leave out the what should have been the obvious punchline (ie. an endorsement for Paul).

    How painful it must be for Greenwald that the man he so obviously admires is just too toxic for him to openly commitment to.

    Like or Dislike: Thumb up 5 Thumb down 1

  11. Joe R. says:

    @OzarkHillbilly: Oh please, enlighten us lowly peasants.

    OK.

    Like or Dislike: Thumb up 2 Thumb down 2

  12. Joe R. says:

    @Richard:

    As it stands, he was left to write an “Obama=evil monster!, Paul= progressive!” article that had to leave out the what should have been the obvious punchline (ie. an endorsement for Paul).

    How painful it must be for Greenwald that the man he so obviously admires is just too toxic for him to openly commitment to.

    Yeah, because sucking up to teachers’ unions is far more important than not blowing little girls’ faces off.

    Like or Dislike: Thumb up 3 Thumb down 2

  13. Greenwald knows that Ron Paul cannot be elected, but that he can push the Republican Party to a less megalomaniac position on Foreign Policy.

    Like or Dislike: Thumb up 5 Thumb down 2

  14. Richard says:

    @André Kenji de Sousa:

    sure……

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Richard says:

    @Joe R.:

    Yes, supporting worker’s rights leads to people in foreign lands getting killed.

    Brilliant.

    Like or Dislike: Thumb up 2 Thumb down 1

  16. Herb says:

    @Joe R.: There’s no question that what happened to that little girl is tragic, but I think a little perspective is in order.

    Shakira was bombed by mistake. Obama didn’t order anyone to bomb her and the guy at the remote control wasn’t aiming for her. It doesn’t mean it’s any less tragic, but civilians being killed and maimed by mistake is a relatively recent phenomenon. Precision-guided weaponry has contributed, but the biggest factor? Political restraint.

    If you think what happened to Shakira is horrible, then don’t bother looking up “Firebombing of Dresden.” Highlights from Wikipedia: “1,300 heavy bombers dropped more than 3,900 tons of high-explosive bombs and incendiary devices,” “destroyed 15 square miles,” “a maximum of 25,000 victims.”

    Of those 25k victims? Not one of them was a mistake. It was all by design.

    @André Kenji de Sousa:

    “[Ron Paul] can push the Republican Party to a less megalomaniac position on Foreign Policy. “

    Yes, I read Andrew Sullivan too, but I guess I’m just a little more skeptical of this idea than you two are.

    After all, the first time Ron Paul ran for the Republican nomination was in 1988. He’s been representing the Republican party in Congress since 1976, the year I was born. (I turned 35 in November.) Oh, sure, he had a few years off in the 80s.

    But now, 35 years into his Republican career, now the great Dr. Paul is going to remake the Republican Party?

    Not buying it…..but if you are, would you interested in some ocean front property in the southwest, too?

    Like or Dislike: Thumb up 6 Thumb down 1

  17. Joe R. says:

    @Richard:

    Yes, supporting worker’s rights leads to people in foreign lands getting killed.

    No, supporting Obama leads to people in foreign lands getting killed. Innocent people, that is.

    Like or Dislike: Thumb up 4 Thumb down 5

  18. MarkedMan says:

    Ron Paul is a lunatic crank who believes “the gumnit” is building the wall on the Mexican border to keep us in. He believes the CIA might have orchestrated 9/11. He believes the UN wants to take our guns. (Kevin Drum gets it right) Now, some of his crazy-a** positions result in him promoting ideas we agree with, but that is coincidence, not design.

    You know, if a crazy man walks naked onto the balcony and pees all over the crowd below, the odds are that he will hit a few people that deserve it. But that doesn’t mean we should elect him president.

    Like or Dislike: Thumb up 7 Thumb down 6

  19. Peter says:

    Great to see you back Alex. And with an excellent post. Thanks.

    Like or Dislike: Thumb up 0 Thumb down 1

  20. @Joe R.:

    If you want to be a peace activist, and anti-drone activist, I’d support you.

    I think that long term that needs to be outside the framework of a Paul campaign.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. @Ben Wolf:

    Obama who’s actions are hostile to the 1st, 4th, 5th, 6th and 8th Amendments.

    I would guess that Ben’s list maps the the various war powers and national security acts.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Rob in CT says:

    I’d like to think that libertarians – some of them, anyway, have actually considered that devolving power to states simply allows those states to handle the authoritarianism rather than the feds. My read of history is that this would be a negative move, on balance, for liberty. And that’s w/o discussing the welfare state (which, generally speaking, I support).

    I don’t dispute Paul’s libertarian stances on foreign policy, security, and the drug war. I find those superior to those of Obama (and the vast majority of other Dems).

    The tension thus created is very real. It doesn’t drive me to hate Paul (Greenwald apparently alleges progressives “hate” Paul, as we love and hate ourselves*), but rather to agonize w/in myself. What is more important? The stuff Paul is better on or the stuff Obama is better on**? I can argue both sides of that.

    * – LotR reference there :)

    ** – one also has to consider what President Paul could manage to get past Congress. Where would Congress help him? Where would it stymie him? If the ultimate result is that lots of the “good stuff” gets blocked and the “bad stuff” gets enacted, ouch. Could the converse occur? Or would it be a mixed bag (seems more likely)? How does that mixed bag compare to the status quo?

    Like or Dislike: Thumb up 2 Thumb down 1

  23. Rob in CT says:

    Ack, one more thought. Regarding whether allowing states more autonomy would be positive or negative overall for liberty… I suppose it’s possible that I’m weighing loss of current liberties more than the possible gain of liberties not currently enjoyed. This would be a natural human thing, if I understand correctly: people generally fear loss more than they desire gain. So it could be that my fear of some states regressing in certain ways is being improperly magnified as against the potential to rachet down the drug war (I don’t think “end” is really likely, considering that even if the Feds quit cold turkey tomorrow, states and municipalities would probably keep on fighting, at least in some fashion).

    Hard to say.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Ben Wolf says:

    @Herb: I suppose the seven children playing together on a hill and blown to bits two months ago could also be considered a mistake, but if I think that way then I must also accept that the innocent people the Taliban has claimed were not the intended targets of their numerous bombings and attacks were also mistakes and should not hold them accountable either.

    Ron Paul has said some truly hideous things, and consorted with the sort of people who pretty much automatically disqualify him from becoming president. Evn worse he has yet to step forward and say that he was wrong and his opinions have changed, arguing instead he wasn’t responsible: someone else’s fault, ignore the whole thing. If we judge Paul by those actions it becomes very difficult to cast a vote for him.

    The irony is that the same can be said for Barak Obama, who has committed hideous acts as President. He has asserted and won the authority to viciously persecute and prosecute whistleblowers, a category of truth-sayer which used to be sacred to liberals. He has institutionalized spying and wire-tapping of American citizens by their own government. He committed an act of the most vile political cynicism by giving a forceful speech on the floor of the senate opposing telecom immunization for their illegal cooperation with government agencies, then voting for it. He has created a world-wide covert murder system targeted solely on executive say-so and has used it to kill both foreign citizens and Americans with no due-process, no trial and no oversight. He has claimed power to wage war any time and anywhere in the world against anyone. He has made pemanent a global system of black prisons to which anyone may be sent should he deem them an “enemy combatant” ( including American citizens) and in which they may be held for life with no representation or trial.

    He has ordered attacks which in aggregate have killed hundreds of innocents for absolutely no useful or good reason other than “they were in the way”, in pursuit of useless and counterproductive wars against foreigners who refuse to accept the U.S. government as master of their fate.He has enthusiastically supported monstrous dictators in suppressing the freedoms and lives of their peoples, attempted to replace Mubarak with his murderer-and-torturer-in-chief Omar Suleiman and gave the Saudis the green light to crush the Bahrainian uprising for democracy. He waged a conflict in Libya which was by any definition illegal, repeatedly lying about it and even arguing that drones and warplanes dropping weapons on the country did not qualify as engaging in hostilities. His administration through his excrable secretary of state illegally bugged U.N. diplomats and declared the United States was effectively annexing the Middle East.

    Through his justice department the President has shielded the criminals who became tremendously wealthy through the fraud and illegality epidemic within the financial sector. He himself has stated that prosecutions are just too hard and therefore not worth the time. He has protected Bush Administration officials from the consequences of organized torture, all in the name of “looking forward, not backward”. Of course little people like Drake and Manning who have no political connections or wealth don’t benefit from “look forward, not backward”; they get the full force of the U.S. government directed toward destroying them as a lesson to others not to inconveniece the powerful.

    Judged against this record Ron Paul is no more an extremist candidate than President Obama, and is arguably considerably less so. This Administration has championed perhaps the most lawless and extreme policies of any in my lifetime, surpassing even the Bush Administration which I would at one point have considered impossible. That compared to this Ron Paul is somehow beyond the pale is a joke. Regardless, Obama and the Democrat shills who protested such policies under Bush but defend them once their tribe is in power will not get my vote again.

    Like or Dislike: Thumb up 5 Thumb down 4

  25. Barry says:

    @Ernieyeball: “Maybe states can compete with each other for inhabitants based on these ideas.
    Texas: Less due process means lower taxes! Just don’t spit on the sidewalk or we’ll hang yer ass. ”

    Considering that Alabama (for example) is looking for new sources of cheap labor after their crackdown, I wouldn’t count on being able to move to another state.

    Like or Dislike: Thumb up 0 Thumb down 1

  26. Joe R. says:

    @Herb:

    Foreseeable consequences are not unintended. Drone attacks might kill a smaller percentage of bystanders than firebombing did, but the deaths are no less of a mistake.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. Herb says:

    @Ben Wolf:

    I suppose the seven children playing together on a hill and blown to bits two months ago could also be considered a mistake, but if I think that way then I must also accept that the innocent people the Taliban has claimed were not the intended targets of their numerous bombings and attacks were also mistakes and should not hold them accountable either.

    No offense, but that’s pure unadulterated horse$hit.

    A case can be made for restricting drone warfare. A case can be made that the US war machine is out of control, that it’s too easy to kill innocent people. A case can be made that the US needs to get out of the Middle East and mind our own business. And it can be made without indulging in this pure unadulterated horse$hit.

    Seriously, man….Consider this: When the US military makes a mistake, innocent people get killed. When the Taliban makes a mistake, innocent people don’t get killed.

    Like or Dislike: Thumb up 2 Thumb down 1

  28. Ernieyeball says:

    @Barry: Yeah, you’re right. Why would the Ron Love PaulBots stop after repealing Amendment XIV?
    Why should Amendment XIII (Neither slavery nor involuntary servitude…shall exist within the United States…) interfere with States Rights?
    Of course “RP would go through the constitutional process to remove this amendment,” Sez Libertarian LoveBot Lucy so it’s all good!

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Ben Wolf says:

    @Herb:

    A Taliban commander in Afghanistan yesterday apologised for a bomb attack in the southern city of Kandahar on Tuesday which killed 16 people, including many children, and said it had been a botched attempt to target US troops.

    http://www.guardian.co.uk/world/2004/jan/08/afghanistan

    Just one example, Herb. When we blow up school children there typically isn’t an apology. But in your mind if America kills an innocent it’s an unavoidable accident. When someone else does it it’s terrorism.

    Like or Dislike: Thumb up 2 Thumb down 0

  30. W_Hart says:

    Has anyone here read “Sins of the State”? It’s really an excellent e-book [of only 40 pages] that lays out the history, and consequences of the 14th ammendment. For ease of explanation,, I will qoute [then] President Johnsons veto message concerning Congress’ first Restructuring Act . Text taken from “Sins of the State”. Brackets and emphasis added there
    “The military is being used to coerce the people into adopting principles and
    measures that they are opposed to , and which they have an undeniable right
    to exercise their own judgment.” [Note: A right pursuant to Article V regarding
    amending the Constitution.]
    “The bill is without precedent and without authority, in palpable conflict with
    the Constitution, and utterly destructive to those principles of liberty and
    humanity for which our ancestors on both sides of the Atlantic have shed so
    much blood and expended so much treasure.”
    “The purpose and object of the bill is to change the entire structure and
    character of the State governments and to compel them by force to the
    adoption of organic laws [14th amendment], and regulations, which they are
    unwilling to accept if left to themselves. If they do not form a constitution with
    prescribed articles in it and afterwards elect a legislature, which will act upon
    certain measures in a prescribed way [subjugation], neither blacks nor whites
    can be relieved from the slavery, which the bill imposes upon them”.

    Like or Dislike: Thumb up 2 Thumb down 1

  31. W_Hart says:

    @Rob in CT:
    Um, you do realize that the word Libertarian implies returning power to the People? Your view, would have power given over to a state, rather than a federal corporation. You do realize that you are living under the rules of incorporation? and that the Legislative arm (Board of Directors/Congress) of that corporation, has the ability to give or take away the rights of the citizens, at their leisure? This is the true impact of the 14th ammendment. Forget everything you think you know and read “Sins of the State”, then start fresh.

    Like or Dislike: Thumb up 1 Thumb down 2

  32. W_Hart says:

    “The grand centerpiece of the 14th Amendment is this:”

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor 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.”

    This “grand centerpiece” might be considered so, if they hadn’t “passed” the piece of trash using military force to form a kangaroo congess, so they could override the Presidents veto(s), and if they hadn’t redefined the words “person” and “state” to the point of slavery, or if they had disclosed that “due process of law” would become discretionary under a Department of Justice that is controlled by the Executive branch.

    Wake up to where you are living. Read “Sins of the State”

    Like or Dislike: Thumb up 2 Thumb down 1

  33. Z3CHS says:

    @OzarkHillbilly:

    the signing of the NDAA?

    Like or Dislike: Thumb up 0 Thumb down 0

  34. Salty says:

    Must be getting very popular, to have Paul analyzers coming out of every direction. Smaller government, war only with the consent of congress and in direct response to danger to our security, sound economic policy…yeah I guess that is scary to some people! :=D

    Like or Dislike: Thumb up 1 Thumb down 1

  35. Whit says:

    Ron Paul is absolutely correct regarding the 14th amendment. If an individual does their due diligence in careful study of said amendment, they might see how it is bad thing cloaked by noble intentions. Freeing slaves from involuntary servitude is great: However, reducing Citizenship to citizenship and turning everyone into voluntary servants with serious penalties for non-compliance is not good. The money trusts should be commended for their brilliant foresight.

    Like or Dislike: Thumb up 2 Thumb down 1