Judge Andrew Napolitano, the host of Freedom Watch, was a guest on Jon Stewart’s show (link is via LewRockwell.com).  I am a fan of Judge Napolitano, but I occasionally have my disagreements with him.

At about 3:25 into the video, Jon Stewart asks Napolitano about states’ rights.  Stewart says, “The federal government cannot infringe on your freedoms.  But apparently if the states do it, yeah, it’s ok.”  Napolitano answers Stewart by citing the 14th amendment, saying that it made the Bill of Rights apply to the states.

I’m not sure why, but Napolitano kept talking about how Republicans stand on the issue.  He should have been talking about libertarians, especially when Stewart framed the question that way.

I am not sure where to start on this, but I strongly disagree with Napolitano (and Stewart) in many ways.

First, I think the 14th amendment is a terrible amendment overall.  It was another thing done by the federal government to centralize power.  Perhaps there were good intentions with it, just as there were with the Civil Rights Act of 1964.  Perhaps portions of it were good.  But overall, it centralized power, regardless of the intentions (although I’m sure not all intentions were pure).

Napolitano says that the 14th amendment made the Bill of Rights apply to the states.  But that is just the way it has been interpreted by many courts, mostly to centralize power.  It is open to interpretation.  Many of the people who supported the 14th amendment did not intend for that to be its purpose.

Second, even if Judge Napolitano were completely correct about the amendment applying the Bill of Rights to the states, that still doesn’t answer the question.  Romneycare in Massachusetts has nothing to do with the Bill of Rights.  Go through the first 10 amendments.  There is nothing about healthcare.  It doesn’t say “Congress shall make no law regarding healthcare.”  Just on that alone, his argument fails.

Third, he really doesn’t answer the question in regards to jurisdiction.  Just because you don’t think the federal government has the authority to do something, it doesn’t mean that you have to agree or disagree with it.  I don’t think the federal government or U.S. Supreme Court should strike down Romneycare in Massachusetts, but that doesn’t mean that I think it is good policy.  I also don’t like it when the Chinese government infringes on property rights and freedom of speech in China, but that doesn’t mean I want the U.S. government to tell the Chinese government what to do.

It is hard to believe that a libertarian judge could not address the issue of jurisdiction (as well as decentralization) in regards to this question.  There are a lot of things that state and city governments do that I don’t agree with, but it doesn’t mean that I think the federal government should do anything about it, even if it were seemingly good.

In conclusion, I am still a fan of Freedom Watch and Judge Napolitano, but I am disappointed with his answer on states’ rights.