In Praise of Centralism
Mises Review 5, No. 4 (Winter 1999)
A NEW BIRTH OF FREEDOM: HUMAN RIGHTS NAMED AND UNNAMED
Charles L. Black, Jr.
Yale University Press, [1997] 1999, xx + 176 pgs.
As soon as you glance at this book’s dedication, you know that you are in for it: “To the sacred memory of Abraham Lincoln.” Mr. Black long held court at the Yale Law School: according to Philip Bobbitt’s fawning introduction, Mr. Black was regarded as “the only certified genius” at that institution (p. xii). Well, our author certainly has a genius for promoting judicial dictatorship.
Like his hero Lincoln, Mr. Black wishes to destroy the power of the states. All must be subordinated to our masters in Washington. Oddly, Mr. Black specialized in the structure of American government: evidently, “study” and “subversion” are for him synonymous terms. The states, it seems, are the chief obstacles to liberty: “Attempts at book-banning, de jure or de facto racial segregation, the prohibition of the teaching of evolution...are things mostly undertaken by state and local governments.... If the national `privileges and immunities’ are not good against the states and their subdivisions...then we have set up nothing but a beeswax simulacrum of a free nation.... It was just that kind of result that the Civil War was in the deepest sense fought and won to prevent. Such a concept is death to Abraham Lincoln’s sacred prophecy, at Gettysburg, that this nation as a nation, might have a `new birth of freedom’” (p. 33).
The states, then, are the enemy. It seems not to have occurred to our Certified Genius that the Civil War perhaps restricted civil liberties just a little more than school boards chary of Darwin. But is there not a slight obstacle in Mr. Black’s path? Does not the very constitution he purports to expound set up a regime in which the states are, at least for some purposes, sovereign? What happened to the Tenth Amendment?
Our author is not to be gainsaid: we have a national government, not one that consists of independent states. The Tenth Amendment, which reserves all powers not delegated by the Constitution to the states, is not a part of Mr. Black’s Constitution: he never mentions it in the book. Instead, he deploys some bad arguments designed to undercut state sovereignty. For one thing, he tells us, “[T]he myth of state sovereignty ought to have been seen to be obsolete when the first state was admitted to the Union out of territory already belonging to the nation (Kentucky, I make it, in 1792)” (pp. 127-28). Here is an argument breathtaking in its inconsequence. The states constituted out of federal territory are now, by hypothesis, states. How does anything at all follow about what powers the states have from the fact that some were once territories? By similar “reasoning,” one could show that since the original thirteen states were once colonies, they are not sovereign either.
Mr. Black does have a slightly better argument, which he next trots out. “Indeed, from 1788 on, state `sovereignty’ was a paradoxical puzzle, for the states were subjected to the supremacy of national law by the Constitution.... They were from the beginning denied powers pertaining to `sovereignty’-coining money, making treaties, engaging in war.... The core power of `sovereignty’-stating what shall be the `supreme law of the land’-was denied by Article VI of the Constitution of 1788. It’s been downhill for state `sovereignty’ ever since” (p. 128).
What is at issue between defenders of states’ rights and their nationalist opponents? Not even the most stalwart advocate of the states, not John C. Calhoun himself, denied that the United States is a nation. The key question rather is exactly what this fact entails.
Has all power been surrendered to the central government? The texts cited by Mr. Black do not suggest an affirmative answer. They cede certain defined powers to the federal authorities: others, according to the Tenth Amendment are retained. It is precisely this division of functions that proponents of states’ rights have in mind by their talk of sovereignty.
Perhaps Mr. Black’s contention is that sovereignty cannot be divided. If so, he begs the question: why must we accept the European notion of absolute and undivided sovereignty? I should have thought the peculiar genius of the American system was to do away with European absolutism.
Nor is our author’s citation of the Supremacy Clause to the point. The contention of the anti-centralists is not that the states are supreme over the Constitution; it is rather that this very document divides sovereignty between the states and the federal government.
Mr. Black, it is clear, does not like the states. But what is it that he wishes the expansive national government he favors to do? He thinks that only the federal government can adequately define, develop, and enforce individual rights: to him, national power is a way to ensure liberty. How is the federal government to accomplish this wonderful mission? Our author relies on three principal provisions of the law to found his regime of rights. In first place stands the Declaration of Independence. It famously says that “all men are endowed with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
What more do we need? Do not the words “pursuit of happiness” give the federal government, especially the Supreme Court, the power to interfere with the states, to whatever extent it deems necessary, in order to block censorship and make sure the kiddies learn about Darwin? What could be clearer?
Perhaps you think I exaggerate, in a childish attempt to make Mr. Black’s thesis look silly. Quite the contrary, he conjures up a right to a decent standard of living out of “pursuit of happiness”: to this brainstorm he devotes an entire chapter (Chapter 5, “The Constitutional Justice of Livelihood”).
There is, I am afraid, one small problem with Mr. Black’s theory. The Declaration of Independence has no force as a grant of power independent of the Constitution. The question was explicitly raised by Justice Story, who took the view of the Declaration I have suggested; and constitutional case law has never relied on the Declaration to grant the federal government power.
Justice Story be hanged! Mr. Black never mentions the Justice’s view: if the Tenth Amendment can be expunged, the Justice is but a minor matter. As one would by now anticipate, Mr. Black has another story: “It is my own view that the doctrine of the Declaration should be taken to have the force of law-the force of law in general commitments from which particular law can be derived” (p. 8).
If you don’t like this, do not despair: Mr. Black’s ever fertile mind has something else ready at hand. The Ninth Amendment provides, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people” (p. 10).
Can you guess our author’s argument? Among the rights retained by the people, he holds, is the right to the pursuit of happiness. This right is to be defined and enforced by the federal government against the states. One begins to suspect that Mr. Black has a bee in his bonnet about a certain phrase in the Declaration.
Mr. Black deserves praise for rejecting the “inkblot” theory of the Ninth Amendment. In this view, advocated by Robert Bork (whom our author does not deign to mention), no one knows what rights the Ninth Amendment was supposed to protect. It is as if an ineradicable inkblot had been spattered over the text; hence judges must in their decisions ignore the Amendment.
Mr. Black goes wrong, as it seems to me, in thinking that the Amendment gives the Federal government power to act against the states. Would this not fly in the face of the Tenth Amendment? No doubt an inkblot in his copy of the Constitution has hidden this amendment from our author’s perusal.
Aside from the Tenth Amendment, was not the whole purpose of the Bill of Rights to limit the central government as against the states? Even Mr. Black knows full well that the First Amendment restricts Congress, not the states; but this renowned structuralist cannot read the first ten amendments in their context. Hence, he misses their anti-nationalist point.
There is something more than a little strange in Mr. Black’s procedure. For his view of the Declaration and Ninth Amendments as sources for federal power, he supplies no case law. In effect, he says, “I, certified genius of Yale that I am, have discovered provisions in the Constitution that have never been interpreted properly before. By a happy coincidence, these provisions support my leftist predilections.” The image of a constitutional lawyer as a magician, extracting hitherto unnoticed rabbits from a well worn hat, strikes one as bizarre.
Our author, admittedly, is not without further resources. He also appeals to the “privileges and immunities” clause of the Fourteenth Amendment. He cites a dictum of Justice Bushrod Washington (George Washington’s nephew) to hold that “privileges and immunities” means-surprise-the rights mentioned in the Declaration.
Once more, our author faces a problem. He wants the phrase “privileges and immunities” to support strong claims for the federal government to act against the states. But, as usual, the law is against him. In the famous Slaughterhouse Cases (1871), the Supreme Court narrowly limited the scope of the contested phrase; and subsequent decisions of the Court have left this precedent intact.
Mr. Black cannot contain himself when he discusses the majority verdict in the Slaughterhouse Cases. If you think that I make unkind remarks in my reviews, you should read what he says: “This is probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court” (p. 55).
Readers must judge for themselves Mr. Black’s convoluted account of the privileges and immunities clause. His whole argument depends on the premise that the Fourteenth Amendment aimed to abolish the rights of the states altogether. If you do not think so, but on the contrary believe the powers of the central government should be strictly construed, then you are a Calhounite. And of course Calhoun’s views are self-evidently immoral. “Until I placed the quoted words from Calhoun’s 1833 Senate speech alongside the result in the Slaughterhouse Cases, I had thought Calhoun to be simply a rather unappealing antiquity. He believed human slavery was a positive good” (p. 81).
Mr. Black reasons thusly: Calhoun supported states’ rights. Thus, if you support states’ rights, you are a Calhounite. As everyone knows, Calhoun favored slavery. But since you are a Calhounite, you too favor slavery. See what happens if you want to limit federal power! I shall leave this logic for our certified genius from Yale. It is too much for me.
