Why the Daily Quotes?
I have been somewhat amused at the various reactions to my "libertarian" constitutional quotes of the day. I am not surprised that most have missed my intentions because my intentions are pretty obscure. I think it is now time to clarify.
First of all, I was not claiming that any of the writers I am quoting from are themselves libertarians in the modern sense. While it may be that the entire generation of the Founders who were not monarchists were far more libertarian than many are today, this would be a matter of degree and also very difficult to establish one way or the other as an historical matter. In any event, this was not my point.
Secondly, some have questioned whether these quotes are indeed libertarian and noticed I put "libertarian" in quotes. They are very close to the mark here. I do not believe that any of these quotes are distinctively "libertarian" in the modern sense (though some may come pretty close, especially today's by James Wilson). Then why post them and allude to them all as "libertarian" albeit in quotes?
My decision to post these quotes was stimulated by comments on my posts from last week in which some claimed that I was reading my libertarianism into the Constitution. I hear this a lot, but I deny it is true. In my book, Restoring the Lost Constitution, my only claim is that all or most of the Founders held the views represented in these quotes and other views that are also not distinctively libertarian. For example, that (unlike today) the Necessary and Proper Clause should be interpreted in such a manner as would allow courts to review the necessity and propriety of national legislation.
Therefore, the fact that these statements are NOT distinctively libertarian refutes the claim that I am reading libertarianism into the Constitution. I am simply "reading into" the Constitution these and other claims that are not distinctively libertarian—though libertarians can favor them as constitutional precepts, as can others with different views. Indeed, I think one of the virtues of the U.S. Constitution as written is that persons of a variety of political views ought to accept it. Many on the left and on the right, however, prefer a different form of government than the one specified in the writing, which is why they adopt theories of "interpretation" or of "precedent" that allow them to amend important aspect of it. And most Americans are not aware of what the Constitution actually says. (Why exactly should they pay close attention to the text when the Supreme Court does not?) My scholarly objective has been to expose readers to what the Constitution actually says, to discover and convey as accurately as I can what the text originally meant, and to defend the proposition that courts ought to adhere to this original meaning.
Finally, contrary to the claim of Clayton Cramer, I am not now, nor have I ever, attributed a "Presumption of Liberty" to the Founders. Indeed, it is odd that this claim would be made following my post last week in which I asserted the opposite. I wrote:
The issue, then, is which of these constructions is the most consistent with what IS in the Constitution? The text of the Ninth Amendment strongly suggests that (1) unenumerated rights should be treated the same as enumerated rights. (2) Protecting NO constitutional rights at all, while logically consistent with the wording of the Ninth Amendment, is inconsistent with other evidence of original meaning. (3) This leaves the proposition that we should protect unenumerated rights in the same manner as we now protect enumerated rights. (4) We now protect enumerated rights, such as speech, press, and assembly, but putting the onus on the government to justify its regulation of these activities as necessary and proper. (5) We should extend the same protective presumption to other liberties. (6) Such a presumption is especially warranted where now, unlike at the Founding, Congress pays little or no attention to the constitutionality of what it does unless it thinks the courts will pay attention.
Justifying a Presumption of Liberty of state legislation requires an inquiry into the meaning of the Fourteenth Amendment and, in particular, the Privileges or Immunities Clause, NOT the Ninth Amendment.
I hasten to stress that even this position is not purely "libertarian," as it would allow more regulation of liberty than many libertarians would prefer as a policy matter. But while the written Constitution may be more libertarian than the constitution given us by the Supreme Court, it is not a purely libertarian arrangement and I have never suggested that it was.
(civil comments only please)
First of all, I was not claiming that any of the writers I am quoting from are themselves libertarians in the modern sense. While it may be that the entire generation of the Founders who were not monarchists were far more libertarian than many are today, this would be a matter of degree and also very difficult to establish one way or the other as an historical matter. In any event, this was not my point.
Secondly, some have questioned whether these quotes are indeed libertarian and noticed I put "libertarian" in quotes. They are very close to the mark here. I do not believe that any of these quotes are distinctively "libertarian" in the modern sense (though some may come pretty close, especially today's by James Wilson). Then why post them and allude to them all as "libertarian" albeit in quotes?
My decision to post these quotes was stimulated by comments on my posts from last week in which some claimed that I was reading my libertarianism into the Constitution. I hear this a lot, but I deny it is true. In my book, Restoring the Lost Constitution, my only claim is that all or most of the Founders held the views represented in these quotes and other views that are also not distinctively libertarian. For example, that (unlike today) the Necessary and Proper Clause should be interpreted in such a manner as would allow courts to review the necessity and propriety of national legislation.
Therefore, the fact that these statements are NOT distinctively libertarian refutes the claim that I am reading libertarianism into the Constitution. I am simply "reading into" the Constitution these and other claims that are not distinctively libertarian—though libertarians can favor them as constitutional precepts, as can others with different views. Indeed, I think one of the virtues of the U.S. Constitution as written is that persons of a variety of political views ought to accept it. Many on the left and on the right, however, prefer a different form of government than the one specified in the writing, which is why they adopt theories of "interpretation" or of "precedent" that allow them to amend important aspect of it. And most Americans are not aware of what the Constitution actually says. (Why exactly should they pay close attention to the text when the Supreme Court does not?) My scholarly objective has been to expose readers to what the Constitution actually says, to discover and convey as accurately as I can what the text originally meant, and to defend the proposition that courts ought to adhere to this original meaning.
Finally, contrary to the claim of Clayton Cramer, I am not now, nor have I ever, attributed a "Presumption of Liberty" to the Founders. Indeed, it is odd that this claim would be made following my post last week in which I asserted the opposite. I wrote:
[T]hough the evidence of this is far more fragmentary than that which establishes the power of judicial nullification, from my reading, judicial deference as exemplified by "Hamilton's test of 'irreconcilable variance'" was probably the dominant view. The fact that Jefferson too articulated this view as Secretary of State in the context of the debate over the national bank, which he opposed and Hamilton supported, is evidence that the view was commonly held.A Presumption of Liberty, like a "presumption of constitutionality," or Footnote Four which privileges enumerated rights, or Footnote Four-Plus which adds protection of judicially-selected "fundamental rights" to those that are enumerated are all constitutional constructions, not interpretations. NONE are in the Constitution itself.
The issue, then, is which of these constructions is the most consistent with what IS in the Constitution? The text of the Ninth Amendment strongly suggests that (1) unenumerated rights should be treated the same as enumerated rights. (2) Protecting NO constitutional rights at all, while logically consistent with the wording of the Ninth Amendment, is inconsistent with other evidence of original meaning. (3) This leaves the proposition that we should protect unenumerated rights in the same manner as we now protect enumerated rights. (4) We now protect enumerated rights, such as speech, press, and assembly, but putting the onus on the government to justify its regulation of these activities as necessary and proper. (5) We should extend the same protective presumption to other liberties. (6) Such a presumption is especially warranted where now, unlike at the Founding, Congress pays little or no attention to the constitutionality of what it does unless it thinks the courts will pay attention.
Justifying a Presumption of Liberty of state legislation requires an inquiry into the meaning of the Fourteenth Amendment and, in particular, the Privileges or Immunities Clause, NOT the Ninth Amendment.
I hasten to stress that even this position is not purely "libertarian," as it would allow more regulation of liberty than many libertarians would prefer as a policy matter. But while the written Constitution may be more libertarian than the constitution given us by the Supreme Court, it is not a purely libertarian arrangement and I have never suggested that it was.
(civil comments only please)
Related Posts (on one page):
- "Libertarian" Constitutional Quote of the Day VI:
- Why the Daily Quotes?
- "Libertarian" Constitutional Quote of the Day V:
- "Libertarian" Constitutional Quote of the Day IV:
- "Libertarian" Constitutional Quote of the Day III:
- "Libertarian" Constitutional Quote of the Day II:
- "Libertarian" Constitutional Quote of the Day:
If you aren't arguing for a "Presumption of Liberty," it seems that I am not the only person who has misread your postings in that way.
This is precisely the kind of attribution of false motive that you so frequently rail against. I wouldn't accuse you of skewing your reading of the Constitution toward the political result you favor. Why accuse those who respect precedent of nefarious motives. The vast majority of those who respect precedent do so because they value stability in the law, not because the "prefer a different form of government than the one specified in the writing." What utter nonsense.
Not so fast. If precedent is different than what was specified in the writing, those who favor precedent do "prefer a different form of government than the one specified in the writing." That's true regardless of their reason for preferring precedent.
Note that if there's a conflict between precedent and the current writing, it's possible to eliminate said conflict without affecting stability. All you have to do is change the writing via the amendment process.
Yet, we don't see that.
This is generally but not exclusively so. For example, state sodomy laws definitely restrict liberties and expand governmental power (although such laws have seldom been enforced)--but it is liberals and libertarians who use "interpretation and precedent" to override the written constitution to strike such laws down.
Fair points. I was refering to the federal government.
Pardon my ignorance if this is obivious, but libertarians also favor freedom of contract and association. So if a group decides that sodomy is offensive they can form a community that prohibits sodomy. If national, this is against libertarian principles but if local it might be consistent. State is probably too large of an area to apply this analysis but you can argue a Tiebout sorting model.
And was the 14th "amendment" properly ratified? Have you looked into its history? What if the insertion of the 14th was in violation of Article 5, because States were, without their consent, deprived of equal suffrage in the Senate?
OK, I've gotta throw the B.S. flag on this one.
The Confederate states were not deprived of Congressional representation during the Civil War. Why? Because each Confederate state CHOSE to secede from the Union. It is more correct to say that the Confederate states voluntarily gave up their representation in Congress.
But, this is after they were allowed to ratify the 13th.
How does one resolve the competing liberty interests between the individual human being and entities regulated by the state (i.e. groups, corporations, etc.)?
Too often the debate over limited government and liberty glosses over what I think is a significant issue. To whit, the argument that the federal government should have practically no regulatory powers (and has these only because of bad precedents, see, e.g. the "Constitution in Exile"), even if the intent of the regulation is to protect the health and welfare (i.e. "liberty") interests of each individual.
I would argue that our individual liberties have been eroded less by the power of the federal or state government to regulate industry and more by the ceding of such liberty interests to group entities, without sufficient policing of such entities or without a thoroughgoing delimitation of just what liberty interests an entity deserves under our government which grounded on individual rights that are not to be abridged.
And can one claim to be a true libertarian if one has not made this distinction?
But state governments were generally not noticeably libertarian. The police power was widely used throughout the early Republic for all sorts of moral improvement (of which alcohol regulation is generally the best known today), and the authority of states to grant monopolies and regulate commerce for reasons both high-minded and venial was widespread. Since most Americans were primarily regulated, controlled, and annoyed by their state governments, focusing on the federal government's limited powers rather misses the mark.
A voluntary community could indeed do this, but the striking down of laws in cases such as Lawrence do not involve voluntary communities, unless you define a state government as such--which is definitely not a libertarian position.
I happen to think that laws telling consenting adults what they may do in private are silly, and if enforced with any real vigor, disturbing. But they were clearly within the police power of the states (as were many other moral regulations) in 1789, and 1868--and indeed throughout American history until the 1960s. Lawrence is an example of where the Constitution has been misused by those who are unable to persuade a majority to their point of view.
Can you imagine any private corporation getting away with what happened at Waco?
You lost me right there. Now, I haven't read Restoring the Lost Constitution, so I might be misinterpreting your position. But here, you seem to be saying that liberals and conservatives "interpret" the Constitution (in perjorative quotes, suggesting that their interpretation is illegitimate or dishonest) while your philosophy represents the 'one specified in the document'. But all assessments of the Constitution involve interpretation. You are implicitly suggesting that there is one single correct interpretation of the Constitution, which has been ignored by hundreds of years of jurisprudence, which happens to be your interpretation of the Constitution. Further, by a staggering coincidence, this single acceptable interpretation just happens to correspond (in most important respects) to your personal substantive political philosophy, liberatarianism.
This is Lochner logic. At least conservatives and liberals generally recognize that their substantive political ideas are only allowed by the Constitution. Your Constitutional philosophy suggests that your substantive political ideas are mandated by the Constitution. Frankly, if Courts had continued to interpret the Constitution in such a narrow, myopic and substantive way, I don't think the document would have survived the 20th century. Nor do I believe that it should have. I do not know what activities the average 18th century American would have considered affecting interstate commerce, but I imagine it would be a fairly narrow range of activities. By 1942, it was pretty obvious that in a national, industrialized economy, the range of activities that affect interstate commerce was much more broad. For the Court to maintain the original interpretation of interstate commerce would be putting the 20th century Federal government in a 18th century straightjacket. The framers of the Constitution could not possibly have wanted such an absurd result.
Again, if this misinterprets your position, I apologize. But I just don't see how the Constitution, under your interpretation, can be celebrated by "persons of a variety of political views". It seems to me that you are saying the Constitution mandates a liberatarian government; if that is true, then clearly only liberatarians should accept it.
Unless I misread Prof. Barnett - a distinct possibility - he isn't saying the Founders saw the Constitution with a "presumption of liberty" identical to his current libertarian philosophy; he's merely saying that they saw the powers of the federal branch being far more curtailed.
That is, he's saying the Founders believed Congress could only act when there was a "necessity" to their actions. If Congressional debate takes this into account and there is a pressing necessity, there can be regulation within a Constitutional framework. This is not the same as full-blooded libertarianism - which would hold that regulation is simply illegitimate in some realms - it's Constitutionalism.
In that context, you could have a more or less active federal government, but if the move is for more activism, there has to be an iron-clad pressing reason for it. That's all we're talking about: creating a standard.
You can write a Constitution that is too specific, too cramped, and too limited to a particular time. But a Constitution that doesn't limit the legislature's authority is only a statement of aspirations and goals--not something that is legally binding.
If the Constitution becomes too much of an obstacle to progress, there's a fix for that: amend it. But to do so, you need 2/3 of both houses of Congress, and 3/4 of the states. That's a high standard--but if the Constitution is really outmoded in some provision, that will, in time, become sufficiently obvious that the supermajority will see it. That happened with Amendments 11 and 12. That happened with Prohibition--and its repeal. That happened with giving women the vote, and giving 18 year olds the vote. That happened with the poll tax amendment. It happened with Amendment 13-15 only because the moron slaveholders left the Union--and thus gave up the only real power that they had--the power to block such amendments.
The problem today is that ideas that are fashionable among intellectuals not only lack the supermajority required to amend the Constitution, but don't even enjoy the simple majority required to win legislative approval. That's why abortion was legalized in four states legislatively (five, if you include the nudge that California's Supreme Court gave the legislature on this), and everywhere else by the Supreme Court. That's why sodomy laws were repealed in most states legislatively--but in others by the Supreme Court. That's why the Massachusetts Supreme Judicial Court imposed same-sex marriage there, and why the U.S. Supreme Court will almost certainly impose it nationally.
Intellectuals have to construct the elaborate theories that characterize Professor Barnett's efforts to avoid confronting the harsh reality that intellectuals are seriously disconnected from the masses.
The only way that would happen is if the 4 liberals get Kennedy to agree to do this, which is not likely.
The text of the Constitution doesn't mention the words "police powers" or grant states the right to enact sodomy laws. If your textual authority for sodomy laws is the Tenth Amendment, the Fourteenth Amendment's privileges or immunities clause trumps the Tenth and is the textual authority which justifies Lawrence's result.
Senator Lyman Trumbell, a key Framer of the 14th, stated that the P or I clause contains "The right of personal security, the right of personal liberty, and the right to acquire and enjoy property" (my italics). Further, he referred to such rights as "natural rights" and "inalienable rights." Further, the Declaration of Independence defines liberty in its broad and general sense as an "unalienable right." (See pp. 63-4 in Restoring the Lost Constitution.)
All of this, notably the substantive right of personal liberty guaranteed by the 14th Amendment, gives originalist justification for Professor Barnett's notion of a constitutional presumption of liberty and the verdict in Lawrence.
Except that sodomy laws were on the books when both the Tenth and Fourteenth Amendments were ratified. By the usual rules of constitutional construction, if a change is made to a constitution, and an existing statute is not altered or repealed, there is a presumption that there is no conflict.
Unless you can demonstrate that the Framers of the 14th Amendment intended to repeal all existing laws regulating personal morality, you have demonstrated nothing at all. The list of "natural rights" and "inalienable rights" is not unlimited. Rep. Bingham actually made a point of reading the first eight amendments to the Constitution as a part of these debates, when defining what he understood the privileges and immunities of a citizen to be. Maybe your version of the Bill of Rights includes the right to have sex with whomever you wish, but my copy doesn't seem to have it--and in both 1789 and 1868, such a notion would have been recognized as radical and probably dangerous.
Since Barnett basically assumes (although he doesn't draw attention to this assumption) that common law rights are synonymous with liberty, all that Barnett's theory really does is shift the power to make law from one branch to another. That is, he wants judges to have a free hand to protect common law rights against legislative encroachments. Fair enough. ***But judge-made law isn't necessarily more protective of liberty than statutory law.*** Historically, maybe it has been, but we have no reason to think that it will be in the future. Hence, Barnett isn't really defending a presumption of liberty at all.
If only somebody would call him on this!
I feel like you are missing the major point of my post, which is to question whether any political group has a meaningful claim on a 'correct' interpretation of the Constitution. What I hear from you is just repeated unjustified assertions about what the Constitution really means. For example, when the Constitution says that "no state shall deprive citizens of... liberty" you assert that the freedom to engage in sexual relationships of one's choosing is not included in the word 'liberty'. Why not? Because, you say, the authors of the 14th amendment did not consider the right to choose sexual partners as a liberty covered by the amendment. But my response is: so what? Our society does consider the right to choose sexual partners as part of each citizen's fundamental freedoms, as does a majority of the Supreme Court. Why should the 19th century interpretation of those words take precedence over a more compelling 21st century interpretation? As far as I can tell, the only reason is because you have baselessly asserted that the 19th century interpretation of those words is the 'true' meaning of the Constitution, and the 21st century interpretation is 'false'. I do not know why you choose to value 19th century interpretations of Constitutional texts over 21st century interpretations, but I do know that it was not from the Constitution itself.
A better example than Lawrence, and one more true to Professor Barnett's heart, would be the interpretation of the commerce clause in, say, Carter v. Carter Coal. Presume for a arguments sake that (a) the regulation of the wages of coal miners would not have been 'regulation of interstate commerce' according to the intent or the interpretation of most white, male landowners in 1789; but (b) most Supreme Court justices did believe that, by 1936, regulation of the wages of miners was an important part of the regulation of interstate commerce and (c) the 1936 interpretation was, in fact, correct. After all, the price of labor in West Virginia would obviously have a huge impact on how competitive West Virginia coal would be in the interstate marketplace, which in turn would have a huge impact on the wages of miners in Pennsylvania. Thus, the correct conflict is not between the Constitution which says X and a statute that says Y, but rather between one reasonable interpretation of the Constitution that says X (based on the intent of the framers or meaning to voters in 1789), and another reasonable interpretation of the Constitution that says Y (based on the obvious realities of business in 1936).
In that circumstance, I do not see any justification for the Court to hold onto the 1789 understanding of interstate commerce. I do not see any words in the Constitution that suggest that the 1789 understanding of the meaning of its text should be sacrosanct for all time. The idea that the Courts should only base their decisions on 1789 interpretations of Constitutional text is thus extra-Constitutional and cannot be mandatory.
My larger point is this: assertions of a single correct interpretation of ambiguous Constitutional text are always substantive. I find it very hard to believe that, if Professor Barnett had substantive political views that supported expansive federal protection of laborers, he would hold to such a narrow and myopic interpretation of the commerce clause. This is equally true of liberal assertions of substantive rights under the 14th amemdment (such as a right to birth control, abortion or choice of sexual partner). But at least liberals are more honest about the importance of substantive moral and political norms in their Constitutional interpretation.
The 19th century interpretation was debated, voted on, etc. The 21st century one, or rather, the several ones, weren't.
If the word "trial" comes to mean "physical combat", should the sixth amendment become little more than a guarantee that it occur in public?
If these modern interpretations are so necessary and clearly correct, why are you so unwilling to impose them by amendment? Why the avoidance of the democratic process?
But that gets back to the same question: "Why bother with constitutions at all?"
- Josh
What, exactly, was debated and voted on? A 14th amendment that created a single, timeless interpretation of equality and liberty -- one that would not include virtually any protection for women -- or a 14th amendment that was meant to be interpreted in the context of future norms and circumstnaces? Since the 14th amendment does not mandate the former interpretation, I don't see how you can say it precludes the latter interpretation. And the latter interpretation is clearly superior.
Wouldn't you say this is a little hyperbolic? Recognizing that there are many alternative reasonable interpretations of the text does not mean accepting all interpretations as equally valid. For example, I would argue that an interpretation of the word liberty in the 14th amendment that includes the right to access birth control is superior to one that does not include that freedom. I recognize that such substantive judgments make some people uncomfortable, and that as a result some will hide behind theories of false objectivity (like original meaning). But those are substantive judgments as well.
If you are so certain that your Constitutional interpretation is correct, why not pass an amendment that clarifies that 'the words of the Constitution shall be interpreted only in accordance with it's precise original meaning and purpose?' The answer is because you know perfectly well that such an amendment would never pass, so you would prefer to mandate that form of Constitutional interpretation by judicial fiat.
Whose "usual rules" of constitutional construction? You wrote: "Maybe your version of the Bill of Rights includes the right to have sex with whomever you wish, but my copy doesn't seem to have it."
Well my copy of the Constitution doesn't have Clayton Cramer's rules of constitutional construction written in the text either.
That's not true at all. You don't understand the difference between common law rights and natural rights. There is a connection between the two as many common law cases are based on the natural law.
However, the two, in reality, are polar opposites, in terms of their priority as a source of law (not all law is equal; some law trumps other law). The common law is the lowest form of law. It's uncodified state law. A simple state statute trumps the common law.
Natural law/natural rights on the other hand is the highest form of law. These are rights man possesses as man and that no government -- federal, state, local, or international -- may properly abridge.
And Blackstone, while he may be an authority on the common law, is not an authority on natural rights. For that, you'd have to look at Locke and the other Enlightenment philosophers, *but through the lens* of Founders like Jefferson and Madison.
Of course they are. That's why they are "unalienable."
James Wilson, a member of the Constitutional Convention put it this way: “a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” Barnett, p. 56
Justice James Iredell: “Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.” p. 57
Because, as I pointed out, a Constitution is a contract that the rules aren't going to suddenly change without considerable debate and supermajority agreement.
Not a "timeless interpretation" but a contract in which the 1868 meaning was nailed down and agreed upon by those who debated and ratified it--not one whose meaning would change as future legislators or judges found convenient.
What's the point of having a Constitution as a form of superlaw--one that takes precedence over later legislative enactments--if all that is required to overturn it is a few judges deciding that the language means something different today than it did in 1868?
You would recognize the absurdity of this if a legislative body did it. If Congress decided tomorrow to pass a law that required blacks to bow to whites whenever they met in the street, and that the Fourteenth Amendment, in the context of modern norms allowed it, you would be appropriately incensed at their chutzpah. But you are prepared to defend when judges decide to do something similar.
More seriously: is there a right to rape animals? No? I guess the list of rights isn't unlimited.
So your argument is that the viewpoint of a minority should always take precedence over majority will, even when you have nothing but your arrogant certainty that you are right? You aren't claiming that the 14th Amendment's ratifiers shared your view--in fact, you seem to be admitting that all you have going for your perspective is your arrogant certainty that you are right, and are allowed to override the wishes of the majority.
If the power to interpret the Constitution is granted to those whose powers the Constitution is supposed to limit, who/how is that Constitution really limiting?
Any guesses as to what pressumtions the "interpreters" will take?
It ain't gonna be on the side of restricting themselves , unless it is in the advancement of their powers - one bite at a time is the elephant eaten.
Nor is it illogical. If a group of people say, "We support X" but fail to repeal law Y and you come along a century later and insist that they really meant for X to repeal Y, the burden of proof is on you to show that this was an oversight, failing to repeal Y.
And what additional powers were granted to the Central government by the 14th?
Pointing to one thing that isn't a right doesn't prove there aren't an unlimited number of rights any more than pointing to the existence of a negative integer proves there aren't an unlimited number of positive integers.
*I* didn't claim that common law was equivalent to liberty; I claimed that this is a (largely hidden) assumption of Barnett's theory. Once the assumption is drawn out into the open, it turns out that Barnett isn't even advocating a presumption of liberty. Rather, he's advocating a presumption in favor of judge-made law. But there's no reason to believe that judge-made law is protective of liberty. As Cramer helpfully points out, the common law was in some respects quite anti-libertarian.
Barnett's theory of the Constitution may be correct. Sadly, however, he misrepresents what his theory actually says. The "presumption of liberty" is a completely bogus term for what he advocates, because it misleadingly suggests that he has argued for a libertarian construction of the construction. In fact, he hasn't argued for any such thing.
That's absurd. Nothing in the 14th suggests that it is the complete statement of equality and liberty. In fact, it is quite specific as to what it does and there are clearly notions of equality and liberty that it does not cover.
If you want those other notions protected, why is the amendment process inappropriate?
> one that would not include virtually any protection for women
The 14th explicitly treats men and women differently wrt voting.
If you want something else, the amendment process exists. That's how we got women's sufferage. Why is that an unreasonable burden?
> And the latter interpretation is clearly superior.
If true, the amendment process is no real obstacle. Why are you so unwilling to subject "clearly superior" measures to the democratic process.
> Wouldn't you say this is a little hyperbolic?
Nope. I regard it as particularly illuminating. There's no reason to believe that "modern interpretations" will be superior.
> Recognizing that there are many alternative reasonable interpretations of the text does not mean accepting all interpretations as equally valid. For example, I would argue that an interpretation of the word liberty in the 14th amendment that includes the right to access birth control is superior to one that does not include that freedom.
You're confusing "valid" with "superior".
The interpretation at ratification time has the unique property that it was debated and voted on. Alternatives were proposed and rejected.
Why are you so unwilling to subject your superior interpretation to that same process? Note that doing so will give it the weight that I think that all as-ratified interpretations should get.
The alternative is that no interpretation, including "modern, clearly superior" ones, is privileged.
It sounds like you didn't read or understand a thing my post said. Barnett's theory isn't based on the common law, but natural rights. These are two different concepts. For instance, the Declaration of Independence, Virginia Statute on Religious Freedom, Memorial and Remonstrance -- none of them are part of the common law; but all most certainly are part of the natural rights theory which undergirds this nation's founding.
Read his book.
My terming it "your" rule was a rhetorical flourish. You missed the overall point. I don't doubt that some states have adopted such a rule of constitutional construction. Indeed, courts all the time make up all sorts of constructivist rules and tests in constitutional interpretation. See for instance, footnote 4 or the Lemon Test.
And like those doctrines, your rule of construction is not found within the text of the Constitution. Indeed, the entire point of this thread is to debate which theories of constitutional interpretation and construction are valid. You simply asserted ipsi dixit, that yours were "the usual rules of constitutional construction." Nope. Sorry, yours is just one of any number of competing theories.
The same logic dictates that likely Brown and certainly Loving were incorrectly decided. Indeed, Trumble himself noted that the legality of bans on miscegination were preserved under the Fourteenth Amendment. And it was indeed a century later that such laws were struck down.
Why don't you spend as much time thundering against Loving as you do against Lawrence?
1] Is it not true that when James Madison introduced the Bill of Rights in Congress, he referred to a "great residuum" of rights that fell outside the scope of federal power, and thus were protected by the original (unamended) Constitution? Wasn't this a common justification for not adding a Bill of Rights to the document?
2] Is it not true that those unenumerated rights within the "great residuum" include the right to carry a firearm near a school, throughout the fifty states, as explained by the Supreme Court in Lopez?
3] Is it not true that, without the Ninth Amendment, the rule of construction known as "expressio unius" could have been applied to the enumerated rights so as to threaten the aforementioned "great residuum"?
If you agree that the answers to all these questions are "yes," then it is very puzzling to me why you see any need at all to suppose that the Ninth Amendment was intended to protect rights beyond the "great residuum" mentioned by Madison. On the contrary, it seems very clear from the plain language of the Ninth Amendment that the absence of a particular right from that "great residuum" of rights CAN be construed as a reason to deny or disparage that particular right, in contrast to absence from the enumerated rights which CANNOT be construed as a reason to deny or disparage that particular right.
Let's please hear how you address these issues as an honest originalist, rather than as someone willing to read his own views into the document.
Moreover, in you post, you assert that the framers thought "the Necessary and Proper Clause should be interpreted in such a manner as would allow courts to review the necessity and propriety of national legislation." But that's not quite correct, is it? They only thought the Necessary and Proper Clause could allow courts to review necessaity and propriety of national legislation that had been enected under the implied powers of Congress, rather bthan the express powers of Congress. In other words, they viewed the Necessary and Proper Clause as an additional power, rather than as a limitation on powers already granted. Isn't that obvious?
You stress again and again that an 1868 interpretation of specific terms was debated and ratified. Of course, the text itself belies this. In fact, the text does not contain an express enumeration of inclusive sub-terms. Rather, it employs one inherently vague, and changing (by society's mores) term. Hence, not only is the 1936 (to use Dan28's example) understanding compellingly more appropriate under the circumstances -- its also the ratifiers intent. That is: that the vague term, which depended upon the ever-changing mores of the community (Not as makes Clayton makes comfortable, or most conforms with a "Leave It To Beaver" notion of the proper society, but rather as people in present life actually comport themselves), would be interpreted to include all conduct which fell within the general concept specified!
The point is that given a few mountain loads of records and documents, as well as the Constittution itself, his reading of it all comes much closer to intent than say Douglas, or Blackmun, or Ginsburg, or for that matter most liberal readings. A bit closer to libertarianism than to elitist power expansion for that matter.
At the very most, words uttered or written in one time frame, would at the most, have whatever meaning they held at the time spoken or penned.
To assume that the definitions of words change, over time, is to assume that those laws made active by those words also change, according to the drifting vaguearies and sands of time. I reject this theory, as it makes a mockery of the rule of law.
There is a method of change, incorporated within the Constitution. It was meant to be cumbersome, just so arbitrariness should not prove the rule. It was meant to be "anti-democratic" as all democracies are inherently unstable and prone to anarchy and chaos. It is however, a reliable method of obtaining consensus for the proposed change.
The current method of applying precedent upon precedent until we arrive at an entirely different definition (and an entirely different application of the law), is not only disingenuous, but also tyrannical, in that the preferred method of change has been subverted and perverted by the Judicial Review process itself.
But then, I'm just an unconcerned and uneducated layman... What would I know?
Ah, but you're wrong - we do. We are free to amend the constitution at any time.
You want a different constitution than the one that was ratified and amended. Other people don't. Why shouldn't this disagreement be subject to the democratic process?
When I moved to a new place, they had all of these old rules that I didn't agree to, so I'm free to disregard them, right?
I didn't have any input into these modern interpretations, so I'm free to disregard them, right?
None of my candidates were elected, so I didn't have any useful input, so I'm free to disregard what my govt decides, right?
Note that the amendment process itself can be amended, so if it's too cumbersome....
In that context, it is reasonable to suggest that the unenumerated rights protected by the 9th Amendment certainly include the rights specified in the Declaration of Independence and that the Constitution and Bill of Rights are but an extension of the "Original Intent" expressed by the Founders in the Declaration of Independence.
Liberty, as understood by the Founders, would seem well expressed by the prinicpal author, Thomas Jefferson, of the Declaration of Independence:
I argue that Antonin Scalia has it quite damned wrong and that his, so-called, "Originalist" interpretations are a hi-jacking of actual Original Intent. The effect of Scalia's interpretations is to undermine Original Intent and to usurp Liberty from the people in order to better control their activities in a manner consistent with prevailing ideology, especially - his own, both locally and federally.