The Volokh Conspiracy

[Randy Barnett, May 24, 2006 at 8:30am] Trackbacks

"Libertarian" Constitutional Quote of the Day III:

Who wrote:

Where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.

(A) John Marshall
(B) Andrew Jackson
(C) Lysander Spooner
(D) Herbert Spencer
(E) Rufus Peckham

(civil comments only please) For answer click "show"

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uh clem (mail):

Right. Spooner's famous quote was "Rare Whites are infringed..."

5.24.2006 10:20am

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Mr. Mandias (mail) (www):

I think its a good thing that 'libertarian' is put in quotation marks on these things. Most of them strike me as having nothing specifically libertarian about them, while this one doesn't even seem to have anything particularly small government or pro-liberty about it. I've seen plenty of big government opinions that adopted the same position, where the 'fundamental rights' in question were welfare rights.

5.24.2006 10:21am

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TO:

If you're familiar with Prof. Barnett's work, the quote in this case fits nicely with his "presumption of liberty" idea.

I suppose it depends somewhat on which part of the passage you choose to focus on, but reading it like this might bring out the point: "where rights are infringed... the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects."

As Mr. Mandias points out, however, the effect of the statement (rhetorical or otherwise) depends on what one considers to be "rights."

5.24.2006 10:49am

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Brett Bellmore (mail):

Unfortunately, that principle often translates into nothing more than a reluctance to recognize when Congress is acting in bad faith. Not that said reluctance would matter much, if it weren't for the Court's own bad faith in allowing constitutional rights to be infringed if the government claims to be acting from a good motive.

Where the Constitution prohibits infringing on a right, whether or why Congress intended the legislation to infringe it is irrelevant. The Constitution prohibits infringing rights, not intending to infringe them. It's the deed that's banned, not the motive.

5.24.2006 11:40am

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I’ve cracked the code. The answer’s always "A".
It’s back to the drawing board for you.

5.24.2006 12:25pm

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HLSbertarian (mail):

Brett Bellmore: Where the Constitution prohibits infringing on a right, whether or why Congress intended the legislation to infringe it is irrelevant. The Constitution prohibits infringing rights, not intending to infringe them. It's the deed that's banned, not the motive.

You may be right about Constitutional rights (though often enough ways are found around those as well), but the quote doesn't reference the Constitution. The quote is talking about measures which are entirely within the legislature's power to make.

As TO points out above, without a definition of "rights," the quote is fairly meaningless. It just reflects the common principle that courts won't presume new legislation to upset well-settled law unless it clearly intends to do so.

5.24.2006 12:53pm

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Rue Des Quatre Vents (mail):

Well it certainly presents a stark contrast to the method of Constitutional interpretation Stephen Breyer has been retailing in his recent lectures on active liberty. I seem to remember him being satisfied with much less than an "irresistible clearness"...probably something along the lines of any intent at all, though that's an overstatement too.

5.24.2006 1:35pm

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Clayton E. Cramer (mail) (www):

If this is your idea of a libertarian presumption, it shows that you are grasping at straws. The decision in question (which you can read here), is:

The questions submitted to the court, in the argument upon the writ of error, were:

1. Whether an attachment laid by the United States, on property of the bankrupt in the hands of the collector of Newport in Rhode Island, after the commission of bankruptcy had issued, is available against the assignees?

2. Whether the United States are entitled to be first paid and satisfied, in preference to the private creditors, a debt due to the United States by Peter Blight, as indorser of a foreign bill of exchange, out of the estate of the bankrupt in the hands of his assignees?

Now, these are important questions of law as to whether the federal government should or should not enjoy a preference in bankruptcy court over private creditors, but there's nothing "libertarian" or even close about this decision. And, you will notice (if you bother to read the whole decision):

The majority of this court is of opinion that the United States are entitled to that priority, and therefore the judgment of the circuit court is to be reversed, and the cause to be remanded for further proceedings.

So the Court upheld the federal government's priority over private debtors in bankruptcy court. How does this qualify as "libertarian"?

The whole manner in which Professor Barnett cherry-picks quotes to find some libertarian presumption in the Constitution reminds of Professor Saul Cornell's methods for finding no right to keep and bear arms in decisions that strike down gun control laws explicitly based on the right to keep and bear arms. Ideology is trumping data.

5.24.2006 2:08pm

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TO:

I did not mean to imply that Prof. Barnett was stretching the quote for anything more in the way of precedential value than it's worth. I just meant that it reminded me of some aspects of his scholarship.

I did not bother to read the opinion.

5.24.2006 2:36pm

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Dave Hardy (mail) (www):

I didn't know the source, but from that one sentence could tell:

A court was about to say "even tho a plain reading of this statute would indicate this result, we are not about to construe it that way."

Or more elaborately, "It is so unlikely that a legislature would have intended a policy result offensive to me that I will not effectuate it unless they force me to do so."

5.24.2006 3:09pm

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Fub:

Clayton Cramer wrote:

So the Court upheld the federal government's priority over private debtors in bankruptcy court. How does this qualify as "libertarian"?

The whole manner in which Professor Barnett cherry-picks quotes to find some libertarian presumption in the Constitution reminds of Professor Saul Cornell's methods for finding no right to keep and bear arms in decisions that strike down gun control laws explicitly based on the right to keep and bear arms. Ideology is trumping data.

I think Prof. Barnett's point is about the presumption of liberty in statutory interpretation or construction. Namely that when application of a statute infringes a right formerly presumed at common law or defined by statute, the court must look to very clear legislative intent that its purpose was to infringe that right.

That is indeed a "presumption of liberty" in a court's reasoning. Without clear legislative intent, the Marshall Court would not infringe the right.

The fact that the court upheld the infringement means that it found the very clear legislative intent to do so.

Not every legal or constitutional principle is defined or established by the outcome of the case. Here the principle is what drives the court's reasoning process. Had clear evidence of legislative intent not been found, the court would not have upheld the infringement.

But I am not a constitutional lawyer, and my reasoning may be quite incorrect.

But if my reasoning is right, then I think Brett Bellmore's observation is more to the point:

Unfortunately, that principle often translates into nothing more than a reluctance to recognize when Congress is acting in bad faith. Not that said reluctance would matter much, if it weren't for the Court's own bad faith in allowing constitutional rights to be infringed if the government claims to be acting from a good motive.

5.24.2006 3:13pm