[P_A_I]

I've excerpted some of the reviewers more legalistic arguments for big government control over our individual rights.

[Archon of the East]

bump

[JCEccles]

Restoring the Lost Constitution is an impressive attempt to demonstrate that our written Constitution enacted into law a sweeping and highly libertarian theory of natural rights and limited government.

A limited federal government. That was the intention of the founding fathers.

Barnett apparently approves of the prevailing sweeping interpretation of the Fourteenth Amendment, which gave birth to the federal leviathan, which has since encroached insidiously into all aspects of life.

And anyway, when libertarian argument is distilled to its essence, even the most lofty and calculated expression of it always seems to come down to these two things: sex and drugs. That is the fire in its furnace.

[Haru Hara Haruko]

Second, he maintains that the Constitution requires courts to protect these natural rights by invalidating all federal laws that unnecessarily or improperly abridge them.

Libertarian? Maybe small-l libertarian. This is really no more than what Republicans believed before the New Deal.

Any "Republican" that thinks this is at all controversial should have a big red 'D' tatooed on his forehead.

[TBP]

Interesting. REstoring the Constitution is the most important political work we can do.

[tahiti]

The reviewer states,

"I should emphasize at the outset that this intelligent, thought-provoking book deserves to be read carefully by anyone who believes that the Constitution is a higher form of law than Supreme Court decisions."

I have read this book 3 times and I agree with this assertion.

In addition, I have used Barnett's thesis to slow down and defang a county wide smoking ban, almost to the point to where the RINO sponsor may back off the proposal in its entirety and completely stop a local city ordinance that would require property owners only to rent their first floor space to "retail" renters only.

I am now taking on my local city's claim that they can define private property (restaurants, bars, grocery stores, gas stations, etc)as "public places" for purposes of regulating smoking activity.

Next I am going to take on helmet and seatbelt laws.

Boy am I have fun exerting my rights.

Prof. Barnett exposes former Supreme Court judges as the tyrannt, socialist, elitist, control freak, anti-liberty, mental midgets that they were.

The actual good news is the current crop of Supreme Court judges is beginning to recognize Amendment IX.

[Jackknife]

ping

[The Ghost of FReepers Past]

The problem with modern Libertarianism is that they totally miss the interrelationship between truths and even freedoms. For example, we can only be as socially free as we are fiscally free. These things must be balanced, where the chooser pays all of his own consequences. Otherwise social freedom for some results in fiscal slavery for others, not to mention social hardship.

Interestingly, the founders were far more focused on financial and religious freedom than they were on sexual license and other such social issues (drugs anyone?). A person was entitled to the fruits of their own labor and to worship as they choose. These were their big liberty issues. I think they would be appalled at what our self-indulgent culture has come to think of liberty. We seem perfectly willing to turn over large portions of our money -- or at least feel good about the so-called "rich" turning over large portions of their money -- as long as we are free to be as immoral as we want to be. Our perception of liberty is fundamentally different than that of our Nation's founders, it seems to me. The first thing we should do if we really want to restore the Founder's version of liberty is to repeal the federal income tax. As long as the U.S. Congress has our money they will control our lives with it. Take the money and you take their power.

Libertarians fail to also see that many so-called private "choices" actually do have an effect on others against their will. For example, gay issues. So-called gay rights means my child must be instructed to be respectful of homosexuality, my business must not discriminate in hiring, my tax dollars must pay for benefits etc. Plus, the culture becomes something entirely unacceptable to the majority -- all to pleasure the degrading passions of 2% of the population. That's freedom for 2%, apathy for about 35%, and oppression for the rest.

Lastly, to claim that the courts exist to knock down all the legislation they possibly can is to elevate the judges to an all powerful position and to completely change our form of government.

[jimt]

Bump.

[Tailgunner Joe]

The Bill of Rights is commonly misunderstood to be a list of our rights. It is actually an incomplete list of restrictions on the federal government.

Even if one accepted Barnett's claim that the 14th Amendment was meant to authorize judges to nullify state laws that abridge certain unenumerated substantive rights, one would still have to ask how judges are supposed to identify these rights.

Indeed.

Barnett's answer is that everybody has a presumptive right to engage in any conduct that does not interfere with the rights of other persons, unless the government can show that a specific regulation is needed to facilitate everyone's exercise of the right.

Says who? It doesn't say that in the Constitution.

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Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. - John Locke, Two Treatises on Government

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Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.

This will of his Maker is called the law of nature.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. - William Blackstone, Of the Nature of Laws in General

[A CA Guy]

I'm sure they are now against open borders, illegal drugs and all kinds of vice now.

[muir_redwoods]

Give me the second amendment and I'll protect the rest of my rights.

[jimfree]

Among all of the penumbras and emanations that creative justices find between the lines there exists a clear pattern in the literal wording of the first ten amendments. They speak to the rights to protection of person and property from government intrusion. I have a right to be secure in my person from government (I, II, V, VI, VIII); I have a right to be secure in my property from government (II, III, IV, VII.) IX and X expressly assume individual liberty.

[verity]

Libertine.

[William Terrell]

But what exactly is the police power's scope? It is never mentioned, let alone defined, in the Constitution.

But it has well settled in our law. The Police Power is unlimited in scope, but limited in exercise to those statutes passed under it must be constitutional, proof positive that the object of the statute is a clear and present danger to the citizens and that the statute will in fact remedy the danger.

This cannot be right. The common law is a collection of rules adopted by judges in the course of deciding cases that are not covered by a state constitution or statute.

The common law came first. We adopted the English common law. The author fails to mention that the common law is the basis of the law, because it has to do exclusively damage done by one to another and the remedy for that damage. This follows the precept of the Golden Rule.

In my wandering through cases and analyses of the common law, I find it stated over and over again that a statute is inferior to the law and can only modify it. A statute can't eliminate it because real damage can't be eliminated by mere statute; if it is done, it is still damage.

And even modifications can be harmful in their effect. The common law has always regulated marriages, because stable families has always been recognized as the foundation for a stable state, and been stuffy about what causes a divorce must be based on. The modification of of the no-fault exception has nearly destroyed that institution.

The common law operates today in all the states. The unification and standardization of adjudicated cases that occurred in the fifties was to combine common law with equity counts so as to streamline cases that have both equity and common law counts, as most do.

The employer/employee relationship is regulated under common law. The Supreme Court has stated that it is really the master/servant common law relationship, but renamed employer/employee because the terms "master" and "servant" were disliked.

Common law is commonsense, and it specializes in determining the remedy tailored to an offense and the circumstance surrounding it and mitigating it.

For instance, the common law wife. The common law is clear that when two people move in together and represent themselves as husband and wife, do husband and wife things, and do so for a couple of years, they are in fact married and require a divorce.

This has always been done to protect women in relationships. Some states had attempted to do away with that. Those that have done so have left women remedyless if a cad were to convince them that he loves them, lives with them and they invest in the relationship, including money, then he just leaves.

I think this author is a statist who is having trouble with well analyzed arguments for the limitation of national government.

[ConservativeDude]

There is no need to go down the road of the 9th amendment and all that.

We simply need to restore the 10th, and enumerated powers. And maybe repeal teh 14th.

Then, states have inherent power to do as they please. Many state constitutions have good libertarian provisions on religion, guns, etc.

But most importantly, if you don't like what you find in a state you can cross state lines. And then we don't get the fed doing all the fed stuff it does now, ie, fed gov will be reduced by like 95%.

That is more than libertarian enough for anyone...and is more tapped into our constitutional history than the natural rights stuff.

[freepatriot32]

Libertarian ping.To be added or removed from my ping list freepmail me or post a message here

[hosepipe]

Libertarians are right wing liberals..
If it was not true then right-wing liberal would be an Oxy-moron..
Libertarians MAKE it true.. Anarchists that appear sane..