"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:

"Libertarian" Constitutional Quote of the Day II: Who wrote the following:

Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves—in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.

Experience should teach us wisdom. Most of the difficulties our Government now encounters and most of the dangers which impend over our Union have sprung from an abandonment of the legitimate objects of Government by our national legislation. . . . Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. . . . If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy.

(A) Andrew Jackson
(B) Lysander Spooner
(C) Herbert Spencer
(D) Bernard Siegan
(E) Richard Epstein

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

"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"

"Libertarian" Constitutional Quote of the Day IV: Who wrote:

If it be understood that the powers implied in the specified powers, have an immediate and appropriate relation to them, as means, necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose, will be of a nature sufficiently precise and determinate for judicial cognizance and control! If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent, as well as to punish, crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive, that questions relating to means of this sort, must be questions of mere policy and expediency, on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.

(A) James Madison
(B) James Wilson
(C) John Marshall
(D) Lysander Spooner
(E) Rufus Peckham

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

"Libertarian" Constitutional Quote of the Day V: Who wrote:

To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.

Having thus avowed my disapprobation of the purposes, for which the terms, State and sovereign, are frequently used, and of the object, to which the application of the last of them is almost universally made; it is now proper that I should disclose the meaning, which I assign to both, and the application, which I make of the latter. In doing this, I shall have occasion incidently to evince, how true it is, that States and Governments were made for man; and, at the same time, how true it is, that his creatures and servants have first deceived, next vilified, and, at last, oppressed their master and maker.

(A) James Madison
(B) Thomas Jefferson
(C) James Wilson
(D) Lysander Spooner
(E) Herbert Spencer

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

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:

[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)

"Libertarian" Constitutional Quote of the Day VI: Who wrote:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

(A) James Madison
(B) Thomas Jefferson
(C) James Wilson
(D) John Marshall
(E) Lysander Spooner