Libertarianism and Constitutional Fetishism

In an online libertarian forum that I am part of, people have been debating whether or not libertarians should be okay with the passage of federal anti-cruelty legislation that criminalizes people for being cruel to nonhuman animals. There are a few people in the group who suggest that such a law is acceptable because nonhuman animals are defenseless, have certain interests, and ought to be protected. A vast majority of people in the group have argued that federal anti-cruelty legislation is paradigmatic governmental overreach and should not be condoned by libertarians because it is unconstitutional. 

The tenth amendment of the United States Constitution reads: 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This amendment effectively empowers the individual states comprising the United States to exercise what constitutional scholars term “the police power.” The police power is the capacity of each state to regulate behavior and enforce order within it so as to promote the health, safety, morality, or general welfare of the state’s inhabitants. 

Seeing as how animal welfare is not once mentioned in the Constitution, it can be convincingly argued that a federal anti-cruelty law usurps individual state power to decide whether animals ought to be protected against cruelty or not. Some animal advocates may conjure justifications for federal anti-cruelty on the grounds that the commerce clause legitimates federal action to this end, but I am averse to making any such argument because the commerce clause has, to my mind, been perversely interpreted to justify the regulation of many things which the federal government ought not have a hand in regulating. Thus, a federal anti-cruelty law would, by any obvious interpretation of the Constitution, be considered unconstitutional. 

For libertarians, is this and ought this be a conversation stopper? In other words: is the unconstitutionality of a given policy sufficient grounds for writing it off from a libertarian perspective? 

I say no. First, there are reasons consistent with libertarian justice to be supportive of breaches of the commitment to federalism when doing so protects the negative rights of those in individual states. Second, libertarians ought to have strong reasons against fetishizing the Constitution. 

1. Federalism and Libertarianism 

Federalism is generally favored by conservative- and libertarian-minded folks, though people of all ideological stripes can at least, in some circumstances, recognize its value in producing laboratories of democracy. Federalism is, above all, appealing to those who are skeptical of state power because it decentralizes it. That state power is decentralized, however, does not mean that it cannot still be abused for purposes that run contrary to the aims of libertarianism. 

The United States Constitution does not anywhere explicitly authorize the federal government to make laws that protect consensual, interpersonal relationships. For this reason, individual states passed and enforced sodomy laws that prohibited couples (particularly, gay couples) from engaging in consensual anal sex with one another. The states that had such laws were able to enforce them as recently as 2003, when the Supreme Court ruled in Lawrence v. Texas that such laws are unconstitutional because of the Fourteenth Amendment. 

We can imagine circumstances under which the Supreme Court did not rule as they did in Lawrence, and wherein the federal government passed a law that forbid the criminalization of consensual sex acts because of the fundamental interests that are at stake in not doing so. Certainly federalism is valuable, but it can engender the very kinds of tyranny that libertarians ought to flatly condemn. And if it is only by means of the federal government that libertarian justice can be realized, libertarians ought not completely write off the action in question as necessarily unlibertarian. 

2. Constitutional Fetishism and Libertarianism 

Libertarians ought also be weary of unduly fetishizing the Constitution. Do not get me wrong: I believe the Constitution of the United States is one of the most impressive legal documents in the history of the world. And it does a hell of a job of creating a political framework that is conducive to the realization of personal liberty, especially when compared against its global alternatives. The Constitution can, however, nonetheless be wrong. And by the lights of a principled libertarian, it get things wrong on several counts. 

First, the eminent domain clause of the Fifth Amendment poses a challenge for libertarians because it permits the seizure of private property “for public use” so long as the individual whose property is seized is “justly compensated.” Also, the Constitution recognizes the existence of intellectual property, which for many libertarians is highly suspect. Libertarians who hold fast to the notion that the economy, like religion, should be disestablished from the state must also concede that the commerce clause of the Constitution is in need of substantial revision. 

Insofar as we recognize that the Constitution gets things wrong even when assessing it using the criteria of many libertarians, it is not unreasonable to suggest that the Constitution has gotten something disastrously wrong in omitting explicit political duties we have to nonhuman animals. Moreover, libertarians should at least be open to the idea that the government has an obligation to enforce the negative rights of rights-bearers, and that some of these right-bearers could possibly be nonhuman animals. If the Constitution was predicated on refusal to protect the negative rights of an entire class of worthy individuals (sounds familiar, doesn’t it?), then it ought not be regarded as the definitive source of all legitimate libertarian commitment. 

When I expressed that I, as a libertarian, am okay with the federal government enforcing anti-cruelty statutes in one of the Facebook groups I am in, the following exchange took place: 

Other person: so you’re OK with the feds violating the Constitution if you think one or more of the states are not passing appropriate animal cruelty laws?
Me: In this particular circumstance, yes.
Other person: so then there really are no constitutional limitations on the federal government because they can be ignored whenever Congress wishes.
Me: Clearly not what I’m saying. The Constitution should protect negative rights. Insofar as it fails to do this, it should be challenged.
Other person: but you’re choosing what limitations apply at will, so what stops Congress from choosing to ignore whatever limitations they want?
Another person: He's ok with the federal government overstepping it's legal/constitutional authority when he agrees with what it's doing... classic authoritarian logic, actually

The authoritarian logic, to my mind, is that which rationalizes a refusal to acknowledge and enforce the rights of individuals who have rights. The Constitution, as our Founders intended, is meant to be an approximation of what natural law demands. Insofar as the Constitution fails to do honor the edicts of natural law, it fails to serve the purpose that libertarians ought to be interested in. Rather than declaring that something is unconstitutional and therefore bad, tell me why I should care about the unconstitutionality of the particular circumstance in question. The only way one would be able to do this is by trying to convince me that no nonhuman animals have rights that are worthy of protection. And until I can hear an argument that is persuasive to this end, I will not be convinced that endorsing the enforcement of unconstitutional federal anti-cruelty statutes precludes the libertarianness of my position.