Like many states before them, earlier this year, North Carolina voters approved a measure that banned same-sex marriage. Subsequent reaction largely followed conventional political wisdom. Conservatives mostly applauded the marriage ban, liberals mostly derided the ban, but I noticed a more muddled and mixed reaction from my libertarian friends. Nearly everyone was appalled at the infringement of individual liberty but some still viewed the ban as properly constitutional, while others viewed the ban as grossly unconstitutional. How can well-intentioned libertarians disagree over the dynamics of federalism and basic constitutional interpretation?
Ron Paul and other Libertarian Party elites (Gary Johnson, Jim Gray, etc.) talk rather flippantly about constitutional interpretation, framing the document as clear, obvious, or simplistic. The mixed reaction from libertarian adherents to the NC marriage ban hints at a deeper complexity beyond the surface-level purity that libertarianism routinely exhibits. The crux of this complexity lies in the inherent constitutional contradiction that simultaneously grants both individual freedom and states’ rights, and the fact that those two principles [individual freedom and states’ rights] oftentimes conflict with each other.
In short, when it comes to personal privacy issues some libertarians favor the individual freedom implied in the 9th and 14th Amendments, while others favor 10th Amendment states’ rights even when it restricts individual freedom, such as with the NC marriage ban. Put another way, some viewed the NC measure as an unconstitutional affront to individual liberty (i.e. favor 9th and 14th Amendments), while others viewed it as a proper constitutional exercise in state sovereignty (i.e. favor 10th Amendment).
Take another example, the landmark Supreme Court case Lawrence v. Texas (2003), which declared anti-sodomy laws unconstitutional, effectively liberating homosexuals from criminalizing Texas statutes. Is there a “pure” or “correct” libertarian reaction to this ruling? Probably not.
Some libertarians might champion the Lawrence decision on constitutional grounds that the 9th and 14th Amendments properly limit states’ rights and guarantee individual freedom to engage in private sexual behavior. That is to say, an individual’s right to engage in private sexual behavior supercedes the 10th Amendment’s right of the states to regulate sexual behavior. Conversely, other libertarians might deride the Lawrence decision on “principled” 10th Amendment grounds. Anything that is not explicitly mentioned in the constitution should – always and everywhere – remain the purview of the states. Thus, many libertarians would accept punitive governmental restriction that occurs at the state-level. Because “sodomy” is not explicitly listed as a federally protected right (e.g. sodomy is not explicitly listed in the Bill of Rights) then states have the right to regulate and criminalize individual behavior at will.
One basic truism in American politics is that states’ rights is not tantamount to expanding individual freedom (think about Jim Crow segregation or militarized sodomy police squads), and libertarians will continue to exude muddled constitutional interpretation when these two principals inevitably collide. Some will side with individuals while others with the states. The idea that there exists one universally pure libertarian way to interpret the constitution is myth.