Posted on 09/24/2008 1:45:37 PM PDT by bs9021
Is the Constitution Libertarian?
by: Irene Warren, September 24, 2008
In honor of the 221st Constitutional Day, guest speaker Randy Barnett gave the Annual B. Kenneth Simon Lecture at the Cato Institute in an effort to set the record straight about whether the Constitution is libertarian.
Randy Barnett, a professor of legal theory at Georgetown University Law Center, explained that the Constitution is a governing document which governs those who are in power and who govern others. However, he explained that the Constitution also defines the limit of powers on those who govern us.
“As it turns out, this is not an easy question to answer,” Barnett said. “There is a difference between constitutional interpretation and constitutional construction.”
“The original Constitution protected the rights of life, liberty and property against infringement by the federal government in two different ways: First, and foremost, Congress was not given a general legislative power, but only those legislative powers herein granted, referring to the powers that were specified in Article 1, Section 8,” Barnett said. “You don’t need the Tenth Amendment; just look at the first sentence of Article 1 which defines legislative powers and limits those powers herein granted. It is striking how these powers, the powers on the list, Article 1, Section 8, avoid expressively restricting the rightful exercise of liberty.”
Thus, Barnett explained that the first ten Amendments only restricted federal powers, but the states still retained their power to enslave some of their citizens. This, Barnett explained, “caused the original Constitution to be greatly flawed from a libertarian perspective.” However, he pointed out, “fortunately, it was amended, which made it far more libertarian.”...
(Excerpt) Read more at campusreportonline.net ...
Well, putting aside the ones with hippie leanings, libertarians are classical liberals (opposite of capital-L “Liberals”)...and the Founding Fathers are pretty much the definition of classical liberals.
So Constitution = Founders = classical liberals = libertarian.
“This, Barnett explained, “caused the original Constitution to be greatly flawed from a libertarian perspective.” However, he pointed out, “fortunately, it was amended, which made it far more libertarian.”
The post-civil war amendments were never intended to apply the whole bill of rights to the states. They were intended to get rid of slavery and all its odious effects.
After the New-Deal, Left-wing judges suddenly discovered that the post-civil-war amendements were actually vastly broader than anyone had thought until then. And gradually ‘incorporated’ their favorite amendments as against the states with no constitutional justification for doing so (so the second amendment was never incorporated as against the state governments.)
This produced ironies such as the establishment clause. It was originally intended to prevent the federal government from forcing states to have an official “Established Religion” and to prevent the feds from disestablishing the existing official religions of several of the states at that time. In other word, it left establishment of religion issues to the states. Now, the exact same clause is used as a weapon against the states by the feds to prevent even a sniff of religious observance by the states. In other words, the establishment clause has been turned completely on is head.
Some libertarians have embraced this. The problem is, in for a dime, in for a dollar. Once you cast loose from interpreting the constitution as it was intended, there is nothing to stop the supreme court from ordering the enslavement of the people in the name of the Constitution.
Actually, this isn't necessarily the case. Debate rages to this day (in the academic journals) about just what each founder was. Many were not so much classical liberals and classical republicans, and their influence on the Constitution, while contributing to a division of powers, was not necessarily "libertarian" in today's sense of the word.
Of course, I would also dispute the assumption (which is all it is, reallY) that libertarians are truly classical liberals.
“classical liberals and classical republicans” = classical liberals AS classical republicans
Modern libertarian perhaps have more in common with some of the anti-federalists such as Yates, Clinton, Lee and Henry who didn't want a Federal government with even the limited powers as set up by the Constitutional Convention.
The revolution was essentially “old Whig” as evidenced by the fact that the Continental Army uniforms adopted the Blue and Buff, the Whig colors, with little debate.
As the “old Whigs”, the Rockingham Whigs of Edmund Burke were what came to be called “conservative” in political terms from the classical liberalism school and the new whigs of Fox, the admirers of the French Revolution and its forms became English Liberals and modern liberal democrats, it is easy to see that the constitution was hardly a “libertarian” document.
Rather as modern libertarianism became fully formed in the twentieth century, non-ideological libertarians (non-Mill purists or non-objectivsists) became sensibly to claim that returning to settled minimum of the Constitution was a good goal for libertarians in general. This returning has given them an aspect of reactionarism. Likewise, conservatives, while respecting the constitution have the baggage of adopting and compromising from various members of their political heritage in the last two centuries in deviating from the original constitution.
As conservatism was never “preservationism” or a reactionary tendency but a tendency for careful reform mindful of what we inherited in western civilization, the issues of who or what faction is “more true” to the constitution is often a clamorous debate.
Were the libertarians, whose antecedents didn't vote for ratification more true to the Constitution now; or are Conservatives (exclusive of libertarians which we often welcome in our midst) more true to the document they created in having lived with it and defended its preservation by living with its general reform? It all makes a good argument with little effect on implementing good government today without leaving old issues aside and working for today's political possibilities.
fyi
Modern libertarian perhaps have more in common with some of the anti-federalists such as Yates, Clinton, Lee and Henry who didn't want a Federal government with even the limited powers as set up by the Constitutional Convention.
Well said. If you want you can line up the Framers and the Anti-Federalists on the same side against 20th century progressives and liberals. They would both be appalled by the size and power of the federal government today.
In their own time, though, the Framers and the Anti-Federalists represented rather different and opposing tendencies. Not even Jefferson would pass muster with some of today's libertarian purists. Other founders certainly wouldn't.
Of course, the other side of the coin was that Anti-Federalists weren't particularly libertarian when it came to the powers of the states. It was the federal government that they were worried about.
Your point about the anti-federalists and state power is very key to the distinction between them and those today that claim their heritage.
I get tired of the same old rehash of arguements but the same issues keep being brought up.
As good a definition of "conservatism" as many I've seen.
The Constitution was simply a blueprint for limited government, heedful of the abuses the Colonists had endured at the hands of King George and Parliament. "Government is best which governs least" seemed to be the sentiment that prevailed, and the powers of each governmental branch were carefully delineated so as to preclude usurpation. That all went by the wayside when the Marshall Court appointed itself the arbiter of the Constitution's "intent," and opened the door to the very abuses the document was intended to forefend.
Since the Constitution is founded (if indirectly) on the notion that "governments derive their powers from the just consent of the governed," it seems to me that it is a libertarian document, imparting, as it does, its own validity not to the state but ultimately to The People, and beyond that, to Almighty God.
Mark Levin in his great book "Men in Black" makes that very point and cites the anti-federalists as being the only ones to write about it since the Federalist Papers were concerned about the other possible problem with the judiciary, lack of independence and freedom from influence.
Yates writing as "Brutus" in his very first letter states:
It is easy to see, that in the common course of things, these courts will eclipse the dignity, and take away from the respectability, of the state courts. These courts will be, in themselves, totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.My full version of my definition of conservatism is on my homepage:
What is conservatism and how is it distinguished from the root word "conserve" often thought to be a defining and limiting decription of the overall group of principles?But of course, as always with me Kirk and Burke are my leading lights and it was Burke who plainly said, "A state without the means of change is without the means of its conservation." To Burke, his change was careful reform always holding forth against rationalistic and revolutionaly wholesale metaphysical schemes.Conservatives aren’t, as is often claimed, the trolls standing athwart the path of history, yelling, Stop!
Instead, they are those that are aware of the value of what they have inherited: their heritage, their patrimony, their culture. Understanding that the best way to preserve those things is by slow and careful change and reform made in, and by, the time honored and settled means accepted in an ordered society, they work for preservation through innovation. We should understand conservative in a political sense by relating to the root word and how it relates to the definition of "save". That is what conservatism does: it saves what is of value in our culture and society; indeed saves our nation.
Conservatives know that change for change’s sake produces upheaval, injustice and takes from one for another. Knowing the imperfectability of man, they have a rightful distrust of his schemes, calculations and metaphysics and instead trust in mankind, as a whole, and their Maker.
KC Burke
Kirk once described conservatives as "people who prefer liberty over equality." The converse, of course, would define liberals. It's aphoristic to the point of oversimplification, but if you need a pithy definition ...
Yours is very polished, and serves quite well.
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