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:

[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)