This week the United States Supreme Court threw out a California law
that establishes a two-tier welfare system in that state. California has
been giving a higher level of payments to welfare recipients who are not
new residents. Benefits for those just arriving in the state are limited
for the first year to the rate which they were already receiving in
their former state of residence. Obviously, this law is aimed at
discouraging people from migrating to California just to get higher
welfare benefits. This seems to be a fairly unobjectionable purpose, but
the court struck it down.
Much more important than their rejection of this particular law,
however, is the ground upon which their decision was reasoned. The court
said the California law is unacceptable because it is an encroachment on
the right of poor people to travel, and on their right generally to be
treated like other residents of their new states. In arguing on this
basis they have revived an interpretation of a clause in the 14th
Amendment to the Constitution which could be used to
undermine and invalidate any law in a given state that sets conditions
for activities of its citizens that are different from conditions set
for those activities in other states. It is called the Privileges and
Immunities Clause and it says, “The citizens of each state shall be
entitled to all privileges and immunities of citizens of the several
states.”
Understood the wrong way, this clause could be used to empower the
federal government utterly to destroy the portion of sovereignty
reserved to state government. This is one of the reasons the clause was
interpreted very narrowly when it was originally added to the
Constitution in the aftermath of the Civil War, because there was great
wariness of its possible abuse. The Privileges and Immunities Clause was
given a narrow interpretation precisely to ensure that it would not be
used to destroy each state’s ability to establish internal conditions
reflecting the best judgment of its citizens.
This is not an arbitrarily restrictive reading of the clause. It
reflects a principled understanding by our political predecessors of
what such language must mean in light of the overall principles of our
system of government. Whatever it means, the clause cannot be
contradictory to the fundamental purposes of our federal system —
protecting our ability to set up communities within the states that are
different from one another in various ways, reflecting the differences
of attitude, belief, and background of the various people in various
parts of the country.
So the narrow interpretation given to this clause in the 19th century
arose from a principled resolve to be jealously protective of the
prerogatives of the state governments, because this is the American way.
In fact, if the court is so concerned with protecting the right to
travel, it might recall that a very restricted reading of the Privileges
and Immunities Clause is necessary if we are to preserve the differences
among states that make the right to travel one of the anchors of
liberty. America was not supposed to be a forcibly homogenized state.
Rather, for two centuries, citizens who have not found the laws and
customs of one state congenial to their own particular understanding of
the good life have been free to look and move elsewhere. They have been
able to take comfort and hope in the prospect of finding a new place to
build their lives among people and laws that correspond more closely to
their own vision.
The American “way of life” is a balance between the richly varied
forms in which our citizens choose to live, and our commonly held
principles of ordered liberty under God, proclaimed in the Declaration
of Independence. Because we are united in the principles of the
Declaration, we are able to encourage the wonderful diversity of human
life without fear of losing our national unity.
Of course, over the course of the last half century or so, we have
had courts doing everything they could to consolidate power in their own
hands, to assert control of our lives at every level — state and local,
and to use the authority of the Supreme Court as an instrument with
which to bludgeon to death any moral viewpoints that contradict the
leftist licentiousness that they believe ought to prevail uniformly in
our society. The sudden willingness of the court to revive the
Privileges and Immunities Clause and give it a broad interpretation now
puts the Court in the position to use that broadened clause in the
service of this agenda of the tyrannical depravity of leftist ideology.
I believe that they will use it to invalidate and defeat all efforts
at the state level to stop the advance of homosexual marriage.
The Court probably could have found other grounds to rule against the
two-tier welfare system. I think they revived the Privileges and
Immunities Clause as a signal that is meant to go throughout the courts
of the country so that as the homosexual marriage effort advances, it
will advance into a federal court system in which the anti-federalist
and expansive interpretation of the Privileges and Immunities Clause has
been given new status. The clause will then be called on in order to
invalidate any laws passed at the state level by which those states seek
to immunize themselves against the requirement that they accept
homosexual marriage, or for that matter any other new form of “marriage”
— group marriages, bestial marriages, pederastic marriages, you name
it. The ultimate goal is to destroy the notion that there should be any
social support for the authentic institution of marriage.
Let me say it clearly: The Supreme Court’s rejection of the two-tier
welfare system in California is not about welfare; it is about
homosexual marriage and the war on heterosexual, monogamous marriage. It
is about making sure that this nation is firmly grounded in the
philosophy of evil now unfortunately prevalent on the socialist left in
America. The effort is aimed at making sure that all of us are complicit
in evil, and that we will not be able, at the state level, to reject
this evil.
The scheme of the radical homosexuals is to get homosexual marriage
accepted in one state, to move homosexual couples “married” in that
state into all the other states, and then go to court in those states to
challenge their refusal to recognize the marriages performed in the
original state — to demand, in other words, equal privileges. That is
what the California welfare decision is about, as will become clear when
the other pieces of the strategy fall into place.
In the last half of the 20th century we have seen a systematic and
sustained assault on the prerogatives of the state governments. The
comprehensive attempt to usurp local authority in schools is one of the
clearest examples. The California decision opens a door for this assault
to be carried to its ultimate conclusion, so that in areas which were
still acknowledged to be within the province of the states we will see a
more fundamental move toward usurpation by the federal
courts. There are many such areas, including local policing
arrangements, licensing of business activities, welfare policy and
others. All of these things are suddenly on the table, and will be
potentially subject to federal dictation from the courts on this new
basis.
The vote in the California case was 7-2. Only Justices Thomas and
Rehnquist took a position that is properly respectful of our federal
system, and they were not joined by any of the other Republican nominees
to the court. This is an ominous reminder that a shallow libertarianism
has displaced real conservative principle in the minds of some
supposedly conservative members of the Court. When the militant
homosexual lobby asks the Supreme Court to enforce equal public status
for same-sex unions and traditional marriages, and the court must decide
whether it lies within the prerogative of the states to protect the
traditional institution of marriage, it will be “touch and go” whether
we get a principled outcome that respects the basic requirements of our
civil life. At the end of the day, so-called “conservatives” who are in
fact legal positivists without respect for the role of natural law in
American jurisprudence will be unreliable on fundamentally important
civic issues of this kind. And that is why the revival of the broad
interpretation of this clause of the 14th Amendment is such a dangerous
development.
The privileges and immunities brush is so broad that it is hard to
see where it will stop. We may well soon be subjected to anything that
judges want to enforce with its sweeping strokes. The result will be an
enforced inability of the states to pass laws that reflect the
principled judgment of their own citizens. The federal system, which
requires this sort of diversity, will be dealt a deathblow over time by
such a strategy. Its success will mean not only the end of federalism,
but the end as well of the constitutional system based on the federalist
principle of divided sovereignty. And as our Founders taught us so well,
the end of divided sovereignty will be the end of liberty and the
establishment of tyranny in America.
