Local and State Laws
One of the long-standing debates within the libertarian movement involves the
Fourteenth Amendment. Some argue that it is detrimental to the cause of freedom
because it expands the power of the federal government. Others contend that the
amendment expands the ambit of individual liberty. I fall among those who believe that
the Fourteenth Amendment has been a positive force for freedom. Let’s examine the
arguments on both sides.
The Fourteenth Amendment reads in part,
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. 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.
The first question that arises is: Why do we need government? To protect such
fundamental and inherent rights as life, liberty, property, and the pursuit of happiness
from violent, anti-social people, such as murderers, rapists, thieves, burglars, and
invaders, and to provide an independent forum in which people can peacefully resolve
Once we accept the legitimacy of government, the next question arises: Why not simply
vest government officials with the omnipotent power to carry out their mission? The
answer was provided by John Locke and Thomas Jefferson: because when government
officials are vested with omnipotent power, they inevitably misuse the power, oftentimes
becoming worse than the murderers, rapists, thieves, burglars, and invaders they were
charged with protecting people from.
So the problem the Framers faced was this: How do we call the federal government into
existence but, at the same time, not vest government officials with omnipotent power?
Their answer: use a constitution not only to bring the government into existence but also
to specify and limit its powers.
It is important to constantly bear in mind that, as necessary as government is, at the same
time it is the primary threat to the freedom and well-being of the citizenry. That is why
government officials, even democratically elected ones, cannot be trusted with
omnipotent power and why it is necessary to limit their powers with a constitution.
Thus, with respect to freedom, the more restrictions on the power of government, the
greater the ambit of individual freedom of the citizenry. That’s in fact why our ancestors
enacted the Bill of Rights, which provide express restrictions on the power of federal
officials to infringe fundamental rights of the people.
Since the Constitution was calling the federal (i.e., national) government into existence,