A Commandeering of the People

Wall St Journal ^ | July 24, 2010 | JAMES TARANTO

[The Raven]

Is ObamaCare constitutional? "If you ask any constitutional law professor whether Congress can do something, the answer is always yes," says Randy Barnett. But Mr. Barnett, who teaches legal theory at Georgetown, isn't just any law professor. A self-described "radical libertarian," he is the author of a 2004 book, "Restoring the Lost Constitution," that argues for a fundamentally new approach to jurisprudence.

Since the New Deal, Supreme Court justices have generally assumed a law is constitutional and overruled it only when it infringes on an individual right that is enumerated in the Constitution (free speech) or not (privacy). "If you're talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable," Mr. Barnett says.

Instead, Mr. Barnett would have the court adopt a "presumption of liberty," placing the burden on the government to show that a law has a clear basis in Congress's constitutional powers. "The easiest way to explain it is, it would basically apply to all liberty the same basic protection we now apply to speech," he says.

It's an attractive theory to those of us with libertarian sympathies—a group that seems to be growing in reaction to the Obama administration's unprecedented expansion of federal power. But Mr. Barnett, 58, readily admits there is virtually no chance the high court will embrace it during his lifetime. "On the Supreme Court now, probably only Clarence Thomas would be willing to question what the law professors call the 'post-New Deal settlement.'"

[The Raven]

>> presumption of liberty

Perfect

[Diogenesis]

"Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."         Abraham Lincoln
	"We have no government armed in power capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other. "         John Adams
“Resistance to tyrants is obedience to God”         Thomas Jefferson
	"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests."         Patrick Henry
"Public officials should not be chosen if they are lacking in experience, training, proven virtue, and demonstrated wisdom. "         Sam Adams

[xzins]

I’m going to protect myself no matter what any government or individual says. Period.

I don’t need any men in black robes to tell me I’m right.

[Mere Survival]

Good to see this coming out of Georgetown. Is that old mediocrity Tushnet still carrying his urine bag around the halls of the school?

[libertylover]

Instead, Mr. Barnett would have the court adopt a "presumption of liberty," placing the burden on the government to show that a law has a clear basis in Congress's constitutional powers. "The easiest way to explain it is, it would basically apply to all liberty the same basic protection we now apply to speech," he says.

My kind of guy.

[ALPAPilot]

Since the New Deal, Supreme Court justices have generally assumed a law is constitutional and overruled it only when it infringes on an individual right that is enumerated in the Constitution (free speech) or not (privacy).

That is exactly what James Madison feared would happen if the Bill of Rights was passed. It's also exactly why he included the 9th Amendment.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. James Madison

IX Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

"Republican" Lindsey Graham came out in support of a Supreme Court nominee who PUBLICLY repudiated the ninth amendment.

KAGAN: Senator Coburn, t-t-to be honest with you, I -- I -- I don't have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN: So you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution? That they're ours and ours alone and that government doesn't give those to us?

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

[Loud Mime]

Very Good postings!

Very Bad government!

[GBA]

Mr. Barnett would have the court adopt a "presumption of liberty," placing the burden on the government to show that a law has a clear basis in Congress's constitutional powers.

How naive I am. I was taught and grew up believing that this is how government was supposed to work and that this, not social engineering, is the primary function of the SC.

[GBA]

“I’m going to vote for her because I believe this last election has consequences,” Graham said of Kagan, adding that her positions are “in the mainstream” and saying it was “not a difficult decision.”

[bestintxas]

People in SC need to send him a clear message on behalf of all Americans

[GBA]

I hope the SC will agree that obamacare is unconstitutional. That would be a clear message and a good start.

[Jacquerie]

Here’s a link to Randy Barnett’s 1993 thoughts on the Ninth Amendment.

http://www.randybarnett.com/rightsbypeople.html

I also recommend his 1989 book on the Ninth, “The Rights Retained By The People, The History and Meaning of the Ninth Amendment.”

[MontaniSemperLiberi]

Fantastic post. Thanks.

“presumption of liberty”

This is actually already in the Constitution as the ninth amendment,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The problem, as your link points out, is that the courts, since the establishment of the First National Bank (1814?) by Hamilton, have decided that the enumerated powers of the national government trump the un-enumerated rights protected by the ninth amendment.

The two enumerated powers of the national government that have caused the most damage are the Commerce Clause and the Elastic Clause. The Elastic Clause has allowed the national government’s power to regulate interstate commerce to extend to regulating all personal behavior that may affect interstate commerce. In other words, just about everything.

[MontaniSemperLiberi]

Your link refers to the Elastic Clause as the Necessary and Proper Clause. They are synonymous.

[phockthis]

sfl