[Randy Barnett, May 22, 2006 at 6:58pm] Trackbacks
"Libertarian" Constitutional Quote of the Day:
Who wrote the following:
The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
(A) John Marshall
(B) Herbert Spencer
(C) Rufus Peckham
(D) Murray Rothbard
(E) Milton Friedman

(civil comments only please.) For answer click here:

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Anderson (mail) (www):
The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed

Hmph, Marbury. Surely John Yoo can explain that away.
5.22.2006 8:16pm
Ace (mail):
I think you mean Marbury v. Madison. You have mistaken it (sort of) with McCulloch v Maryland.
5.22.2006 8:18pm
Tito:
Speaking of McCulloch v. Maryland, should we look for limited government there, too?
5.22.2006 8:24pm
Gordo:
The "necessary and proper" clause was later interpreted by Marshall to be a lot less limiting on federal government power than this quote would imply.
5.22.2006 8:30pm
PersonFromPorlock:
"They can do anything to you that you can't stop them from doing." -- Joseph Heller
5.22.2006 8:47pm
Bottomfish (mail):
I got the right answer by considering literary style alone.
5.22.2006 9:10pm
Splunge (mail):
Don't know who said it, but anyone who can ponderously ask...

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

...has apparently never needed to write a note to himself:

Don't forget to pick up laundry soap on the way home.
5.22.2006 9:59pm
Alcyoneus (mail):
It is telling that Marshall's remarks are about overweening Congressional power. That's where the real trouble lies --- in the adminstrative state created by an over-powerful Congress --- not in the contitutional exercise of presidential warmaking authority.
5.23.2006 2:17am
Medis:
Alcyoneus,

It isn't an either/or proposition--both the President and Congress can improperly seek to pass their constitutional limits.
5.23.2006 5:29am
Jam (mail):
I would never have guessed Marshall.
5.23.2006 10:07am
Mr. Mandias (mail) (www):
Great quote, but what makes it libertarian particularly and not just small-government, rightish? Now if Marshall were advocating the harm principle . . . .
5.23.2006 12:01pm
digoweli:
So who was the libertarian? Jackson or Marshall? It was Marshall who upheld the private property and national rights of the Cherokees in Georgia vs. Worchester and Jackson ignored the property rights of a people who had lived here for thousands of years. He set a precident that continued with the horror of the 1883 American Indian Religious Crimes Codes that banned our religions and then the Dawes Act that destroyed our national identities and set our descendants in the constant Civil War that we now find ourselves under the government's "Trademark" Acts that defines who is and who isn't Indian with heavy fines on those who aren't federally approved. Note my comments on that Act in the Churchill dispute where the dominant culture once again ignores the issues and treads heavily on our attempts to have a life.

Meanwhile libertarians are "for" private property if it is owned by the dominant culture. That is pretty far from the freedom of Summerhill or Education through Art by the great Libertarians of the past.

digoweli
5.23.2006 12:27pm
U.Va. 1L (mail):
Marbury v. Maryland?

In any event, I'd never have pegged Marshall as someone to write that.
5.23.2006 1:14pm
Freder Frederson (mail):
Meanwhile libertarians are "for" private property if it is owned by the dominant culture.

Yep, libertarians do get kind of weasely when you point out that the only reason there is "private property" is that the evil government defines property rights and the inconvenient fact that in this country, other people were living on that property before the government took it from them, mostly without compensation.
5.23.2006 3:06pm
digoweli:
Frederson:

You got that right except that's insulting a smart animal.

digoweli
5.23.2006 10:48pm
Ian Samuel (mail) (www):
This passage is best read as a feud between Marshall and his political opponents, who actually controlled Congress at the time. If you think Marshall was deciding Marbury out of unvarnished libertarian principle, you're selectively interpreting the facts, to say the least.

I also wasn't aware "libertarians" were such enthusiastic fans of judicial review.
5.24.2006 6:40pm