Why Care What The Constitution Says?

The Autonomist ^ | Randy Barnett

[Hank Kerchief]

I don't mean to be picky, but considering all the copyright problems we've been having ... Not at all. The notice is very intimidating. It bothered me to, so I checked.

I have permission from both Princeton University Press and LFB to promote this Excerpt so long as the copyright notice is kept attached. I will be glad to send you a copy of the emial with that permission if you request it.

Hank

[Ken H]

Here's what Bork says about the Second Amendment--

"In a footnote on page 166, Judge Bork writes that ``the Supreme Court has consistently ruled that there is no individual right to own a firearm. The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose."

Borking the Second Amendment</a?

[Ken H]

Try that link again--

Borking the Second Amendment

[Hank Kerchief]

The author, imo, -- 'buries' his points

That is my impression also. I think it is the "academic" thing.

Do you know if the author even addresses the role of juries in setting constitutional precedence?

I do not. Are you referring to "jury nullification?"

Hank

[budwiesest]

Unless we openly confront the question of its legitimacy, we cannot respond to those who would replace it with something they think is better.

Aren't ammendments attempts at making it 'something better'?

If it's legitimate with the first ten ammendments, I'd say fine, and dump the rest while making subsequent ammendments null and void.(which is scarier, prohibition or women voting?)

[yatros from flatwater]

Sad but true, and not at all different from the ceremonial and liturgical reference to scripture by "mainsteam" postmodernist ministers who really don't see biblical words as having any meaning other than for the sentimental feelings they evoke.

[lodwick]

Thanks for this post.

[supercat]

3rd Amendment: alive

Is it really? Seems that with all the efforts at mandating various intrusion devices (which, while inanimate, are still agents of the state) the Third Amendment is pretty well dying as well.

[supercat]

I think few people realize the purpose of the Constitution. It wasn't just to inform those in power what they 'should' do, but it was also intended to provide people an 'insruction manual' for their government, so that in case of a conflict between some individuals and government personnel, the public would know whose side to be on. Unfortunately, this function has been largely lost.

[djf]

Good article. My experience seems to indicate that to understand the Constitution, you have to put yourself in the shoes of those who wrote it, and those around them.

Remember that at the time of the writing, there were still many indentured servant types. And the English style of learning an occupation, by becoming a journeyman for many years, was well understood.

The English law at the time was trying to establish debt actions by assumpsit, which the founders totally rejected, and they were hostile to the notion of maritime law acting on the colonies.

The Constitution, as written, was really almost a compromise, set up to show a united front against potential hostiles, notably the English, the French, and the Spanish.

It was never meant to give police powers to the federal government, or act directly on the Citizens of the states.

[An.American.Expatriate]

No Problem Hank!!

Just wanted to make sure that FR wasn't going to get hit again....

[TLI]

Unfortunately, this function has been largely lost.

Not so much lost in the literal meaning, as lost in the hurricane of propaganda being spewed in all directions by several factions. The most notable being that which has the most to loose, fed.gov. They will continue to "convince" everyone that their's is all power, and all power is their's.

Just ask them.

[tahiti]

"Bork is a prime example of a judge who ignores what our Constitution really says, -- in favor of what a moral majority wants it to say.."

As usual, tpaine, you and I agree.

I was going to reply to Richard Kimball by stating that Robert Bork is one of the last individual's to believe in the "presumption of liberty."

But you nailed well with your response.

[tpaine]

Fine.. I too can agree:
"that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; --

But object that if:
"-- any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper --- "

-- As it is not only up to the judges, -- but to fully informed juries of our peers to decide if our liberties are unconstitutionally restricted, in the particular case at hand.

--- All trials should be held under a "Presumption of Liberty" doctrine, which really could "provide a practical way to restore the lost Constitution."

Do you know if the author even addresses the role of juries in setting constitutional precedence?
10 tpaine

That is my impression also. I think it is the "academic" thing.

I see the 'burying' as an subtle effort to make a fairly radical point without getting called out.

Do you know if the author even addresses the role of juries in setting constitutional precedence?

I do not. Are you referring to "jury nullification?"

More than simple nullification.
I see it as a major fault in our system of checks/balances that jury's are not allowed to judge the constitutionality of the law in the case before them. --
And, -- if a jury does nullify in order to acquit, -- its judgment on the law in the case should not be questioned by higher courts.

Judicial review should only apply to convictions.
This method would rapidly build a body of precedent on the constitutionality of laws as viewed by our peers, -- not as viewed by our so-called 'professional jurists'.

[Hank Kerchief]

No Problem Hank!!

Just wanted to make sure that FR wasn't going to get hit again....

I fully understand. I think it is outrageous what some have done to FR, and I have no intention of being part of or instrumental to it.

I always have the email if anything should ever come of it; but the Universities are usually pretty reasonable.

Hank

[freedumb2003]

So what's the fix?

The death of the 2nd killed the rest. There is no fix. Live out your life and hang on to what you can. Some day we will look back on a USA that was free and strong and lament.

[archy]

From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.

Sorta overlooked one in there in that comprehensive, scholarly listing, didn't he? A hint: beteen the First and Third Amendments....

[Warlord David]

Now all that is need is a death certificate, to make it offical. Does anyone have a blank one laying around?

Its been fun why it lasted. See yall, on the other side of chaos.

[Travis McGee]

I see that Laissez Faire Books has an extensive fiction category, including Rand, Heinlein, Orwell and others. Do you have any contacts there or at its parent company The Center for Independent Thought in NY? I'd send them a book, if I had a name to send it to.

[garbanzo]

4th Amendment: recently deceased (warrantless "safety" searches)

Nothing recent about this death. Step outside your house and there is no 4th Amendment.