Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

Restoring the Lost Constitution

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Supreme Court ◽  
Gravitational Force ◽  
Fourteenth Amendment ◽  
Popular Sovereignty ◽  
Original Meaning ◽  
Commerce Clause ◽  
The People ◽  
The Supreme Court ◽  
The One ◽  
Constitutional Legitimacy

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. 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. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

An Inconsistent Jurisprudence: The Doctrinal Spectrum

2020 ◽  
pp. 93-136
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Affirmative Action ◽  
First Amendment ◽  
Free Speech ◽  
Fourteenth Amendment ◽  
Commerce Clause ◽  
Constitutional Jurisprudence ◽  
The U.S

This chapter explores Justice Antonin Scalia’s constitutional jurisprudence across the broad range of issues he addressed. The chapter shows that he contradicted his originalist jurisprudence in interpreting the First Amendment (both its free speech and religion clauses) as well as the Fourth, Fifth, and Eleventh Amendments, and that he did the same in construing a variety of other constitutional doctrines including those involving standing, the treaty power, affirmative action, the Commerce Clause, the Fourteenth Amendment, and the U.S. Supreme Court’s own appellate jurisdiction. The chapter argues that he frequently twisted, ignored, and abandoned his jurisprudential principles and methodologies he proclaimed and that the principal consistency his decisions and opinions reveal was his commitment to his own ideological goals and values.

Restoring the Lost Constitution

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Supreme Court ◽  
Natural Rights ◽  
Judicial Power ◽  
Bill Of Rights ◽  
Economic Activities ◽  
Original Meaning ◽  
The Supreme Court ◽  
The One ◽  
Ninth Amendment

This concluding chapter argues that the original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court. It cites the evidence of original meaning presented in this book; for example, the “privileges or immunities” of citizens included natural rights as well as rights created by the adoption of the Bill of Rights. The term “commerce” unquestionably meant trade or exchange and did not extend to such other vital economic activities as manufacturing or agriculture. The “judicial power” included the power of to nullify unconstitutional statutes. The Ninth Amendment mandates that unenumerated rights shall not be denied or disparaged. The chapter asserts that attempts to perfect the Constitution by judicial construction conflict with and override its original meaning. It ends by insisting that the opportunity still exists to adopt a Presumption of Liberty and restore the lost Constitution.

Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Popular Sovereignty ◽  
Alternative Path ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.

“The Real Nature and Spirit of Our Lives”

2018 ◽  
Author(s):  
Amanda Porterfield
Keyword(s):  
Economic Growth ◽  
African Americans ◽  
Social Organization ◽  
Labor Unions ◽  
Social Evolution ◽  
Fourteenth Amendment ◽  
The Real ◽  
Real Nature ◽  
Republican Liberty ◽  
The U.S

Proponents of social evolution blurred boundaries between commerce and Christianity after the Civil War, championing Christian work as a means to economic growth, republican liberty, and national prosperity. Meanwhile, workers invoked Christ to condemn patronizing attitudes toward labor, and by organizing labor unions to hold capitalists accountable to Pauline ideals of social membership. Influenced by organic theories of social organization that traced modern corporations to medieval institutions, U.S. courts began recognizing corporations as natural persons protected by rights guaranteed in the Fourteenth Amendment of the U.S. Constitution, which had originally be crafted to protect the rights of African Americans.

The Presumption of Liberty: Protecting Rights without Listing Them

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
The People ◽  
Ninth Amendment ◽  
Two Alternatives

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.

The Fruition of Black Power

Free the Land ◽  
2020 ◽  
pp. 43-78
Author(s):  
Edward Onaci
Keyword(s):  
Puerto Rico ◽  
Everyday Life ◽  
Lived Experience ◽  
Political Identity ◽  
Fourteenth Amendment ◽  
Indigenous Nations ◽  
Political Relationships ◽  
Political Office ◽  
Intellectual Foundations ◽  
The U.S

Chapter 2 analyzes the movement’s intellectual foundations. It uses the theoretical power of the New Afrikan concept “paper-citizen” to explain the various founding documents, including the RNA Declaration of Independence, the New Afrikan Oath, and more. Highlighting the major ideas from these documents reveals several important concepts through which New Afrikans critiqued the Fourteenth Amendment to the U.S. Constitution and organized around their concept of New Afrikan citizenship. Besides the question of citizenship, New Afrikan political identity, Third World solidarity, and the governmental—not organizational—apparatus anchored a significant portion of known New Afrikan activism. Specific actions, such as supporting the independence of Puerto Rico, seeking out political relationships with U.S. indigenous nations, and running for political office exemplify NAPS as a lived experience of ideology. An assessment of those outcomes and the ideas behind them prepare readers for a deeper exploration of how and when NAPS and everyday life intersected within individual persons. The term lifestyle politics captures this phenomenon.

Seven The Ninth Amendment and the Marshall Court

2009 ◽  
Author(s):  
Lash Kurt T
Keyword(s):  
Original Meaning ◽  
Chief Justice ◽  
History Of ◽  
Judicial Opinions ◽  
The One ◽  
Ninth Amendment ◽  
John Marshall

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John Marshall. It is argued that different people used the Ninth Amendment in different ways. Some read the amendment as significantly restricting federal power; others insisted that the amendment placed few if any constraints on federal power. But these are differences of degree, not kind. Every court and commentator who took a position on the Ninth Amendment in the initial decades of the Constitution—whether Federalist or Anti-Federalist or Democratic-Republican, nationalist or states' rightist, drafter or ratifier—all described the Ninth as echoing the same federalist principles as the Tenth. Rather than considering the original meaning of the Ninth Amendment, the chapter focuses on what happened to the original meaning of the Ninth Amendment.

Piecemeal Farm Regulation and the U.S. Commerce Clause

2020 ◽  
Author(s):  
Colin A. Carter ◽  
K. Aleks Schaefer ◽  
Daniel Scheitrum
Keyword(s):  
Commerce Clause ◽  
The U.S
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