By Michael Bindner
Is government engineering constitutional? Let’s review the bidding, shall we? When the constitution was written, it overtly represented the propertied interest and preserved both slavery and the suppression of civil liberties at the state level, particularly in the slave states. There were few abolitionists in the south. The franchise was limited to white male property holders over the age of 21. A standing army and navy were provided for, as long as they were regularly reauthorized. (I just threw that one in to challenge the junior-high-school-history class notion that the founders were not militarists – the writers of the Constitution certainly were as Gary Wills expertly documents – the anti-federalists, the libertarians of their time lost that one, too).
Fast forward, if you will, to the days after the Civil War. The great debate is who shall be dominant in southern society, which has enough voting strength to control the nation when enfranchised. In order to consolidate the gains from the battlefield, the Fourteenth Amendment was passed. Slavery had also been banned (a bit of social engineering) and freed slaves were given the vote in the Fifteenth.
In the intervening century, the Equal Protection rights of the Fourteenth Amendment have been used to both engineer society and more importantly to stop the engineering of society by others in the name of majority rights and economic power. (From my perspective, it should be the favorite libertarian amendment). It has been used to prevent what turned out to be a small cadre of racists who were dominant to engineer a system of domestic apartheid whether it be at the lunch counter or the rental or real estate office. It is currently being used, quite effectively, to justify an end to the rights of the pious to limit the freedom of homosexuals to expect fair dealing in the same spheres, provided they have the money.
The Constitution has also been the instrument used to socially engineer the franchise. Women, young people and poor voters who cannot pay a poll tax and D.C. presidential voters now have the ultimate power in a democracy. Of course, social engineering in the constitution does not always work out. Prohibition and its repeal are the ultimate example of this. Note that the 21st Amendment still gives states the power to socially engineer drinking. It was not a blanket removal of this power.
Government and the law are the realms where interests clash in a peaceful society. If these questions were not handled by government they would be settled with private violence – and sometimes are. (There are some places in the South where racial tolerance is more apparent in its absence – and private violence enforces this). The First Amendment rights of Freedom of Association and the Fourteenth Amendment Rights of equal protection do clash. Government settles these questions. The Constitution empowers government to conduct some engineering. It is also in the Constitution that it engineer the economy (taxing, tariff, debt and the regulation of interstate commerce are all constitutional).
Michael Bindner is a frequent contributor to The Free Liberal.