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Down with the Bill of Rights: Heller and the Central States Cheerleaders (2008)

I started this draft article years ago but never finished it. Including it here for google to index for me.

See also Constitutional Structures in Defense of Freedom (ASC 1998) and Structural Safeguards to Limit Legislation.

Down with the Bill of Rights: Heller and the Central States Cheerleaders

Stephan Kinsella


June 2008


[T]he rule of law is a myth and like all myths, it is designed to serve an emotive, rather than cognitive, function. The purpose of a myth is not to persuade one’s reason, but to enlist one’s emotions in support of an idea. And this is precisely the case for the myth of the rule of law; its purpose is to enlist the emotions of the public in support of society’s political power structure.

John Hasnas

The illusion is liberty. The reality is leviathan

Forrest McDonald


Beneath the noble bird Between the proudest words Behind the beauty, cracks appear



Many libertarians are giddy over the Supreme Court’s recent pro-gun-rights decision, District of Columbia v. Heller. Just as many were outraged over the 2005 eminent domain case Kelo. Which should tell you something: Hailing the Court as the protector of our rights while railing against its callous disregard for our rights reveals a type of schizophrenic dependence on one’s abuser, much like the beaten wife who defends her husband from prosecutors or his enemies.


Needless to say, these same schizo-activist “libertarians” howl with apoplectic rage when a fellow libertarian demurs from their state-cheering in one case and from their caterwauling in another. If you rail when they hail, or cheer when they jeer, you are in for it. I have in mind here the furor over my comments on Kelo (such as this one (alternate version) by Tom Palmer); and over Kevin Gutzman’s and my comments on Heller (see, e.g., Tom Palmer’s intellectually dishonest criticisms of Guzman’s provocative, sincere, and thoughtful comments on this matter and Palmer’s remark (June 26, 2008) in that thread that my argument is “stupid” and is motivated by my hatred of Palmer; Skip Oliva’s denigration and dismissal of Gutzman; and Tim Sandefur’s Stephan Kinsella’s idiocy reaches new lows).


Now what was behind my arguments behind both Kelo and Heller was a radical libertarian distrust for the American central state–the most powerful state in the history of the world–and recognition that the original constitutional scheme of enumerated federal powers was meant to be one of the chief limits on the central state. It was based on a realistic cynicism about said central state’s grabbing more power on the pretense of protecting our rights.


For example, in Kelo, my point was simply that the original Constitution, and the Bill of Rights, were meant to limit federal power. [HERE INSERT MCAFFEE STUFF]


Despite the fact that the Constitution and Bill of Rights were meant to limited federal power, the federal government has–with the support of modern centralist libertarians!–engaged in constitutional legerdemain to turn these limits on their head, into grants of power. The feds have employed the illegally-ratified Fourteenth Amendment to erode federalism and the enumerated powers scheme in the Constitution and as a grant of additional power. Perversely, we have mainstreamoid and centralist and pro-war and neo-connish libertarians such as Objectivists and Catoites cheering on the Fourteenth Amendment and the seizing of greater and greater power and jurisdiction by the most dangerous criminal organization ever to stain the face of the earth: the American central state. Of course they go ballistic when a genuinely radical libertarian speaks reality and truth, pierces their over-optimistic activist bubble and calls them on their state-worship. It is to be expected.


It’s also not surprising when even decent libertarians are heartened by the Heller decision–so desperate are we for good news, for any sign of progress, of a victory, that, like a starving cur, we greedily lap up crumbs from the master’s table. Even when the decision is 5 to 4, and hanging by a thread. Even when the decision puts so many conditions and limits on the right as to turn the case into an excuse to secure the state’s right to regulate us.


But this does not mean we ought to cheer when our self-appointed “masters” deign to temporarily, fleetingly, and conditionally grant us very limited rights that we already by rights, should have had. Look what it has led to–the Chairman of the “Libertarian” Party celebrating that the Supreme Court has “established an individual right to gun ownership in America!” (Giddy-rube-activist-huxter-rah-rah-blue-hat-convention-going exclamation point in original) Well. THANK YOU, Dear Supreme Court, for establishing this (conditional, limited, temporary) right for us! What would we do without you? (Er, nevermind the Kelo decision, shhh, shh.)


Now these issues are not easy for libertarians struggling with the right way to view the Constitution, especially given the origins of many libertarians in Randianism or conservativism, which fostered a very rosy view of early America, picturing it as a virtual quasi-libertarian paradise (except for slavery, of course! but let’s overlook that!). The questions I’ve gotten recently, and over the years, in email and elsewhere, on these issues, confirms this. So let me elaborate here just a bit on some of my reasoning and these issues, using a critique by Timothy “Lincoln Idolator” Sandefur as a foil. In a post entitled Stephan Kinsella’s idiocy reaches new lows, Sandefur hurls a lot of smears and vilification. First, he implies I’m not a libertarian. This, from someone who is a literal statist–that is, he is not an anarchist. He is not even a minarchist, and barely a libertarian, as far as I can tell. This, from someone who has said “slavery is so evil that it was worth all the awful depredations of the Civil War to end it, and would have been worth more“. Wow. These are the words of a mighty powerful moral retard. As Joseph Sobran said in reply, “I’ll raise [Sandefur]–I’ll stipulate that 600,000,000,000 deaths would have been a cheap price to free a single slave.”


I mean, here we have a Lincoln-worshipping, war-justifying statist calling a genuine radical, anarchist libertarian a defender government power. It’s breathtaking. Writes Sandefur, there is no “that Kinsella’s driving concern is to maximize the power of local governments to tyrannize over people without their having any rescue from federal authorities” (emphasis added). Notice this implicit, unrealistic, and absurd faith in the federal government as our “rescuer”. Total disconnect from reality. And again, note the bizarre and false accusation that I want to “maximize” the power of local governments to do anything–I am an anarchist and would abolish the feds and the states alike, unlike the neocon statist Tim Sandefur. These little DC centraloid Randist libertarians seem to have an obsessive-compulsive desire for “order” and “neatness”: the idea of the diversity and plurality of a genuine market order drives them nuts. This is why Objectivists are really one-world government types: they want a single, final decision, a final authority, even if that Grand Narragansettian High Court is fallible. And our modern sell-out activists want progress, and now, damnit! You have to “work with” the “existing order.” You have to have an office in DC and court the hangers-on in the corridors of power. You have to make incremental changes. You have to have soirees at your house and invite Republican donors. You have to honor Newt Gingrich and Rudy Giuliani. You have to distance yourself from radicalism and principle–from Rothbard and Mises and Lew Rockwell. If you want to somehow achieve an intellectual revolution and seize the reins of the machinery of power to implement your erstwhile libertarian ideas, watered down as they are, you need to recognize the validity of that machinery. Why, if we deny the authority of the sainted federal government to supervise the laws of the 50 states, how will we ever get uniform libertarian results, if we are ever to achieve a libertarian takeover of the federal government? Or even if we are to achieve limited, ad hoc victories, like in Heller, what good will it do if we can’t force all fifty states to comply? (Nevermind that bad decisions are also enforced nationwide; as when the feds override local medical marijuana initiatives.)


Those whose lives are vested in political activism unfortunately develop a type of chronic and pervasive dishonesty: an inability to name truth. They must bite their tongues and speak the mealy-mouthed cocktail-party bromides of the demopublican ruling class.


Now. Back to the issue in Heller. Kevin Gutzman had a very provocative and intriguing argument about this issue. Gutzman argued that the Bill of Rights was meant to limit only the power of the federal government, not the states. It could be argued that even if the Bill of Rights does not apply to the states, it applies to the federal government, and to D.C., a “part of” the feds. But as Gutzman contends, “Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.”


Of course, the argument that D.C. is merely an arm of the feds and thus subject to limits on federal power is a respectable argument. But Gutzman’s makes more sense to me. Why? Well, it is true that the Constitution gives Congress power to legislate over D.C. But as Gutzman notes, “Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress.” In other words, it is not Congress, but D.C. itself, as a separate entity, that is legislating. If this is true, then why would anyone think that limits on Congress limit D.C., anymore than limits on Congress also limit Louisiana, Pueroto Rico, Quebec, or the Ivory Coast?


Some have contended (in email with me) that because Congress created D.C., D.C. is subject to the same limits Congress is. But this does not follow. The U.S. helped to create the U.N. and NATO, and neither are subject to the Bill of Rights, any more than China is. And the U.S. in effect “created” new states from the territory of the Louisiana Purchase, and other territory, and this does not imply that these States were bound by the Bill of Rights.


Others have countered that because the federal government “has control over” D.C., this means that D.C. is subject to the limits placed on the feds. But the federal government has assumed control over the states by the interstate commerce clause and by broad readings of the Fourteenth Amendment. This does not itself make the Bill of Rights apply to the States. And Congress has assumed great powers over the lives of American citizens–but individuals are not subject to the Bill of Rights. So the assertion of control by the central state over D.C. does not itself mean that the Bill of Rights applies to it.


Some might object that Congress had no authority to create D.C. But so what? After a while, even illegal or unauthorized actions take on de facto “legal” validity in our current legal order–take, for example, the original Constitutional Convention (a coup); the Louisiana Purchase (unconstitutional); the Civil War (illegal under international law and unconstitutional); the Fourteenth Amendment (illegaly ratified); and so on. So Congress didn’t have the authority to create a semi-sovereign, quasi-state, legislation-issuing authority in D.C. So what? It did (arguably). (In fact, D.C. wants to enact its own mini-bill of rights, if only the feds would let them!–see the Constitution for New Columbia, Art. I, “Bill of Rights”).


The federal government was granted only limited and enumerated powers. This was the chief mechanism expected to keep the feds from encroaching on the turf of the states or enacting general laws that restricted the liberty of citizens at large. The Bill of Rights simply emphasized several specific limits on the federal government’s power, at the insistence of the Anti-Federalists, just to be sure. The Bill of Rights, especially with the Ninth Amendment’s “open-ended” rights limitations, corresponds to the limited powers nature of the federal government. That is, structuring a government to have only enumerated powers (original constitutional structure plus tenth amendment), is complementary to a virtually unlimited set of rights that limit government power (the first eight amendments of the Bill of Rights, plus the Ninth Amendment). But where the federal government was to have control of a limited territory, like military bases or D.C., of course its power here was not enumerated and limited. It was plenary and general, as is the legislative power of the states. And it makes no sense to limit the feds here to “limited and enumerated powers” (they have to be free to outlaw murder in D.C., after all). But as the Bill of Rights was meant only as emphasis to this enumerated power scheme, how could it have changed matters? And consider this: the states who ratified the original Constitution: would they have been especially concerned about the federal government censoring speech on a military base, or even in D.C.? I think not: neither would threaten the states’ turf (since restricted to a puny portion of land under federal control); and could not be the basis of general, national legislation.


Now, I’ll grant that the argument that the Bill of Rights does not apply to D.C. is not airtight. It is certainly respectable and does not deserve the insulting, dismissive comments of craven liars like Tom Palmer and Tim Sandefur–but it is not “final.” Arguments the other way carry some weight too.


Which, to me, just emphasizes the indeterminacy of artificial systems of meta-law, like our constructed, utopian Constitution. As the rule of law is a myth and like all myths, it is designed to serve an emotive, rather than cognitive, function. The purpose of a myth is not to persuade one’s reason, but to enlist one’s emotions in support of an idea. And this is precisely the case for the myth of the rule of law; its purpose is to enlist the emotions of the public in support of society’s political power structure. John Hasnas notes in The Myth of the Rule of Law,

“The law human beings create to regulate their conduct is made up of incompatible, contradictory rules and principles; and, as anyone who has studied a little logic can demonstrate, any conclusion can be validly derived from a set of contradictory premises. This means that a logically sound argument can be found for any legal conclusion. … [B]ecause the law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. It should be noted, however, that this vastly understates the degree to which the law is indeterminate. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.”

Now, whether this is true of law in general is a separate question, but it is certainly true of artificial legislated schemes such as the Constitution, which is full of uncertainties, vagueness, gaps, and inconsistencies. This inevitably invites political manipulation of the law. The law becomes a creature of the state, like roads, police, and the education system. Of course we should distrust anything states do–especially the most powerful state of all time, good ole’ Uncle Sam.


Now consider the Bill of Rights. The Federalists said that merely limiting the feds to enumerated powers would be sufficient to keep them from exceeding their bounds–from acting ultra vires. But the Anti-Federalists were more skeptical; they wanted a second line of defense, and insisted on the Bill of Rights. Now, as it turns out, the Anti-Federalists were more right than they knew: neither the enumerated powers scheme or the Bill of Rights were sufficient. The feds have slipped their bonds. Still, one could argue that the Bill of Rights has done some good–that it has occasionally limited federal power. Maybe, but this is thin gruel. It took over two centuries to recognize the Second Amendment, and this recognition was limited to measly self-defense, not the absolute right to shoot any criminal, including state agents. And it was used as an excuse to bolster the feds’ right to regulate and license and limit. As for freedom of speech–it is chilled and hemmed in by affirmative action and anti-discrimination law, by state control of education, by regulation of “commercial speech,” by political campaign laws, and so on.


And worse, the Bill of Rights has been used by the feds as a justification for seizing more federal power, primarily via “incorporation” into the Fourteenth Amendment to apply to the States–under federal control, of course. Had there been no Bill of Rights, we would still have in place a stronger vertical separation of powers–“federalism”–one of the most effective of the structural restraints on central power–far more effective than the flaccid Bill of Rights has been.


This is why I say, down with the Bill of Rights. Anything the federal government is for, we’d be better off without.


Recommended Reading


John Hasnas,

Kevin Gutzman, Gun Control and the Second Amendment

Gene Healy, The 14th Amendment and the Perils of Libertarian Centralism

_____, States’ Rights Revisited, The Freeman

_____, Contra Centralism (libertarian states rights scholar Gene Healy takes on Clinton Bolick, Roger Pilon, and John McClaughry, advocates of liberty through federal power);

_____, Roger Pilon and the 14th Amendment;

_____, Libertarian Reflections (Gene Healy on Waco, Paul Johnson, neocons, war, and left-libertarian nonsense);

_____, The Squalid 14th Amendment (ratified by trickery during the federal military dictatorship over the South, this treacherous appendage to the Constitution is an attack on liberty and its American political foundation, states rights);


Kinsella, The Great Gun Decision: Dissent, LRC Blog, June 26, 2008

_____, A Libertarian Defense of ‘Kelo’ and Limited Federal Power

_____, When Did the Trouble Start?

_____, Fourteenth Amendment Resources, LRC Blog, July 8, 2005

_____, Healy on States’ Rights and Libertarian Centralists

_____, Thomas on Marijuana;

_____, Libertarian Centralists.


Forrest McDonald, “The Bill of Rights: Unnecessary and Pernicious,” in The Bill of Rights: Government Proscribed, Ronald Hoffman & Peter J. Albert, eds. (1997); discussed in Carl Watner, “The Illusion Is Liberty – The Reality Is Leviathan”: A Voluntaryist Perspective on the Bill of Rights



“This article was sparked by an essay written by Forrest McDonald entitled “The Bill of Rights: Unnecessary and Pernicious,” in which he presents the thesis (which he shares with some other historians) that the first ten amendments to the federal Constitution were essentially a legitimizing device used by those favoring a strong central government. In other words, many Americans who otherwise might not have supported the new central government were won over to it by the adoption of the Bill of Rights.”


Thomas B. McAffee, Inalienable Rights, Legal Enforceability, and American Constitutions: The Fourteenth Amendment and the concept of Unenumerated Rights, Wake Forest L. Rev. (2001)


McAffee: n. 16: “McDonald, supra, at 390 & n.6 (quoting Rufus King & Nathaniel Gorham, “Response to Elbridge Gerry’s Objections,” in Supplement to Max Farrand’s The Records of the Federal Convention of 1787, 284 (James H. Hutson ed., 1987)) (observing that Rufus King and Nathaniel Gorham had contended that a Bill of Rights was essential where there is a legislature of “full power & authority,” but not where its powers are “explicitly defined”). ”


and at p. 752 and n. 18: “When the Constitution was briefly considered by Congress prior to its transmittal to the states, Nathaniel Gorham of Massachusetts explained that ‘a bill of rights

in state governments was intended to retain certain power [in the people] as the legislatures had unlimited powers.’ … This is why “no previous state constitution featured language precisely like the Ninth’s–a fact conveniently ignored by most mainstream accounts.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 124 (1998). [emphasis added by NSK]”


  1. 751: “In The Federalist, for example, Madison posed the question: “Is a Bill of Rights essential to liberty?” He answered that the “Confederation has no Bill of Rights.” The basic idea was the simple one that if you have granted limited powers, you have accomplished the same thing as if you had included a bill of rights. … The Constitution’s defenders believed that the system of enumerated powers raised an inference against government power and in favor of liberty. By contrast, state constitutions started with a presumption in favor of government power. It was the standard view that the state governments, “unlike governments of delegated and enumerated powers, had (as representatives of the sovereign people) all powers not constitutionally forbidden them.”


See n. 16 of McAffee, quoting G. Alan Tarr & Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation 50 (1988) (recognizing that “[alccording to traditional legal theory, the state government inherently possesses all governmental power not ceded to the national government, and thus a state constitution does not grant governmental power but merely structures and limits it”).


Watner: “Forrest McDonald … labeled the Bill of Rights as ‘Unnecessary and Pernicious.’ They were unnecessary because most of them were already embraced by the common law. They were pernicious because they helped legitimize the Constitution in the minds of the American people. Furthermore, McDonald points out that ‘The Bill of Rights has never been an especially effective guarantor of rights. … One by one, the provisions … [of the Constitution] have been eaten away, and nobody seems to have noticed or cared. The illusion is liberty. The reality is Leviathan.'”



From DiLo:


ou should incorporate some of this article, and the reference to Forrest McDonald, who is an intellectual giant who makes Sandefur and Palmer look like ass zits by comparison.


Some first thoughts:


Mention how the whole game with the libertarian centralizers is to hope, hope, hope, that they can educate the lawyers on the Supreme Court to be like them. Cite Gene Healey’s smashing of this stupid idea. They are ignorant of the original constitution, which never intended that a few government lawyers with lifetime tenure would be the sole guardians of everyone’s liberty.


So the federal government “saves” us? Point out that it was the federal government that enforced the Fugitive Slave Acts for several generations, and that Lincoln himself proposed in his first inaugural to enshrine slavery in the Constitution. And by the way, why did the Supreme Court allow hundreds of gun control laws to exist all over the country, and only today, in 2008, speak up FOR THE FIRST TIME EVER in defense of our second amendment rights? This is protecting our rights? And what if Anthony Kennedy voted differently? Does that mean that our natural rights to self preservation are to be determined on a whim by ONE MAN? Why, yes, that’s the Sandefur/Palmer position.


They are ignorant of the idea of dual sovereignty, or true federalism as Madison saw it. The citizens were to have veto powers over THEIR federal government, while the federal government was supposedly to protect life, liberty and property as well. Since 1865 only the latter part has existed, and it’s been a farce, of course. The last thing politicians want to do is to expand our liberty and therefore diminish their power and wealth.


Hamilton was the preeminent Federalist. The Constitutional convention was his idea. He lobbied for it for seven years, promising only to amend the Articles of Confederation. They scrapped them completely instead. His view was that the Constitution should be viewed not as a check on federal enumerated powers, but as a potential rubber stamp on anything and everything the federal government wanted to do. He constantly called for a government of “more energy”; was a consumate tax increaser; wanted a standing army to intimidate AMERICAN TAXPAYERS, not for defense; and was a complete statist and interventionist. Jefferson was the exact opposite: He wanted to enforce the enumerated powers to bind government “in the chains of the Constitution.”


Woods: I suppose you might emphasize a bit more how mind-boggling it is that guys like this actually pretend that you’ve made up this position, that this is the Stephan Kinsella view of the world. No, it was the view of Jefferson, Patrick Henry, John Taylor, and the vast bulk of the illustrious Virginia tradition. If they are going to smear you from ignorance, they have no right to stop there — on to Jefferson and Henry!


Thanks for your comments. A few responses.

I am glad you are an anarchist. It is hypocritical of a non-anarchist (statist) to pretend to be holier than thou than an anarchist, as I am.

You said, “But I also believe in individual rights, and I believe that it is good when individual rights are protected.”

I fully agree wit this, of course.

“When a government, any level of government, is blocked from violating individual rights, I think that’s a good thing.”

Of course it’s a good thing. This is a libertarian or political judgment. But this does not mean that (a) the Constitution supports this judicial decision; or (b) that it’s an *unadulterated* good thing.

I do not believe I have argued that it’s a bad thing if a federal court stops the states from violating rights. This part of it is, of course, good. But if this good thing is achieved at the expense of the central state becoming more powerful by acting without legal authority–by acting as if it does not need legal authority–this can be an “on the other hand…”.

Libertarians often trumpet decisions like Lawrence, Heller, or criticize those like Kelo, not only on libertarian grounds–but on grounds that the decision is consistent (or not) with the Constitution. It is this that I take issue with. For example, if the Court decided that the income tax was unconstitutional, I would cheer, but I would not dishonestly claim that their decision was supported by the Constitution–it’s just that I wouldn’t care; I care more about rights, than the Constitution. People like Palmer feel a need to pretend that they are always the same.

“For an explanation of why I don’t trust democracies, especially local democracies, to protect the rights of individuals, one can do no better than to look to Federalist 10.”

I do not trust them either. That does not mean that the government of Zimbabwe is legally authorized to interfere with the “democracy” in California; nor that the US has a right to interfere with Canada’s internal affairs; nor that the UN has a right to tell Houston what to do.

The blatant dishonesty and lack of integrity shown by people like Tom Palmer is not in their political opinions, or even in the dishonesty of their insistence that the Constitution is libertarian, but in characterizing people like me as being in favor of the unlibertarian actions of a local state, merely because I do not recognize that the Constitution authorizes the central state to intervene. It is incredible.

“One other thing: I’m not sure if the Constitution really does empower the federal government to stop the states from violating people’s rights.”

Good. Then we are in basic agreement.

“I think Randy Barnett makes a pretty good case to that effect, though.”

I think this is basically wishful thinking. But anyway, this is merely a constitutional-legal question, not a libertarian one.

“Besides, even if the Constitution, as it stands, doesn’t empower the federal government to enforce a strong presumption of liberty against the states (on 9th and 14th Amendment grounds), why don’t you and Ron Paul vocally support altering the Constitution in that direction?”

First, I don’t speak for Ron Paul, but I believe he has advocated any number of constitutional amendments that would move us in the right direction. Second, I have advocated altering it in any number of ways, in plenty of publications. I am an anarchist and advocate for it to be abolished. But I would be in favor of any number of structural reforms to improve matters. Giving the feds–the most powerful and dangerous central state on the face of the earth–more power vis-a-vis the states would not be one of them, however, because I believe this would further erode federalism. And federalism itself, in my opinion, was the chief limit on the central state’s power; and it is this that should be revised. I would advocate reviving the Kentucky Resolution of Jefferson and give states the power to nullify unconstitutional acts of the feds. As for the states, I would advocate strict limits on their power–something along the lines Barnett suggests in either a state constitution (applying to state law) or a federal one (applying to federal law) would be great. I would not even mind the feds having veto power over state law if states had a similar power over the feds, so that it’s bilateral, and so that the feds don’t come to dominate and thus become unlimited, as they virtually are now.

For just a sample of some of the things I’ve recommended, see my “Legislation and the Discovery of Law in a Free Society” or “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights”, both available here: https://www.stephankinsella.com/publications.php — where I list several ways to limit the power of states (mostly the federal government), such as:

* The amendment proposed by Marshall de Rosa:
”When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.”

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”

* Because *legislation* is a dangerous and pernicious way to “make” law, I would support an amendment requiring supermajority requirements for any statutes at all to be enacted (even in states)

* Limit any statute to replace a single judicial decision.

* Sunset provisions that automatically repeal any legislation after a given time, if not renewed.

* Jury trial in ALL cases, even civil.

* Another Amendment proposed by Joseph Sobran: “Any state may, by an act of its legislature, secede from the United States.”

*amend the Constitution to repeal the incorporation doctrine

*to eliminate judicial supremacy (sometimes confusingly referred to as “judicial review”), the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. Instead, the original scheme of separation of powers required concurrent review, sometimes referred to as Jefferson’s tripartite theory of constitutionalism. Under concurrent review, each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of government action.


I just put the article online:
McDonald, Forrest, The Bill of Rights: Unnecessary and Pernicious, in The Bill of Rights: Government Proscribed, Ronald Hoffman & Peter J. Albert, eds. (1997); discussed in Carl Watner, The Illusion Is Liberty – The Reality Is Leviathan”: A Voluntaryist Perspective on the Bill of Rights


“A little earlier [than 1944], the Court had upheld the presidential seizure of the property of certain Russian-Americans on the strength of an executive agreement, the so-called Litvinov Assignment of 1933–again despite the Fifth Amendment. On the basis of that and two related decisions, the president might theoretically bargain away the rights of all all citizens merely by agreeing to do so with a foreign head of state.n30″

“30. United states v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942).”

“So Ron Paul doesn’t believe in incorporation. He believes the Bill of Rights only applies to the federal government. If this is what he believes, then he’s committed to the position that there would be nothing illegitimate about a state completely banning firearms, or putting people in jail for criticizing the Governor.”


ou guys do NOt have to reinvent the wheel, you konw. ARe you even aware of the whole Bricker Amendment movmetn? Jesus. This si why they tried to get htat done, out of fear of this:


The precedent most often cited by critics of “treaty law” was Missouri v. Holland.[41] Congress had attempted to protect migratory birds by statute,[42] but federal and state courts declared the law unconstitutional.[43] The United States subsequently negotiated and ratified a treaty with Canada to achieve the same purpose,[44] Congress then passed the Migratory Bird Treaty Act of 1918 to enforce it.[45] In Missouri v. Holland, the United States Supreme Court upheld the constitutionality of the new law. Justice Oliver Wendell Holmes, writing for the Court, declared:

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.[46]

Proponents of the Bricker Amendment said this language made it essential to add to the Constitution explicit limitations on the treaty-making power. Raymond Moley wrote in 1953 that Holland meant “the protection of an international duck takes precedence over the constitutional protections of American citizens.”[47]



This is completely incorrect. It is the Tom Palmer way of “reasoning.” Just because one does not believe the U.S. federal government has been granted the constitutional authority to overturn state laws does NOT mean one thinks those state laws are illegitimate! Come on. This is like saying that unless you are in favor of one-world (libertarian) government, you believe there is “nothing illegitimate about” unlibertarian acts of local states. This is like saying that unless the you agree that the federal government has the right to enact a general law banning murder (which they do not have), then you are in favor of murder!

Terrence, surely you are aware that until the 1920s or so, the Bill of Rights clearly did NOT apply to the states? When the Bill of Rights was ratified in 1791, some states had an official state religion! Recognizing this reality does not mean one thinks this was a legitimate practice.

“If you reject incorporation, then you’ve committed yourself to the acceptance of tyranny.”

This is utterly and completely false, unfair, and unreasonable. First, it is very clear, in my mind, that–whether I like it or not–the Fourteenth Amendment does NOT “incorporate” the Bill of Rights. Now, it MIGHT apply a “broad range” of fundamental rights to the states, but that is directly, through the privileges & immunities clause, not through incorporation. But notice that the P-I clause does not even mention rights. As Raoul Berger explains, that phrase only meant a narrow set of rights. See his Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977). https://www.stephankinsella.com/texts/berger_judiciary.pdf

As to why it can’t incorporate the bill of rights, consider this: first, it can’t incorporate the 10th, since that’s federalism–or do people think the 14th meant to transform the states into mini-federalist governments of enumerated powers not having even the power to outlaw murder? And it can’t incorate the ninth amendment, since the open-ended grant of rights, or open-ended restriction of power, is counter to the nature of states as having plenary legislative power (as opposed to the feds, which have enumerated power, so the Ninth makes sense with respect to them — see on this this post: The Squalid Bill of Rights: “will go a great way in preventing Congress from interfering with our negroes” http://www.lewrockwell.com/blog/lewrw/archives/021794.html ). So what’s left, amendments 1 thru 8? Well what about the original first 2 amendments, one of which was never ratified, the other which was ratified recently–now the 27th amendment. Should that be “incorporated” too? Anyway, what about the 5th amendment? It guarantees due process rights. So I suppose that’s incorporated too. But if so, why does the 14th Amendment have a due process clause? Isn’t this superfluous, if the P-I clause already incorporated the DP clause of the 5th Amendment?

The bottom line is that there is something deeply wrong with libertarians trusting the federal government–the most powerful and dangerous state ever to have existed–as a benefactor and protector of our rights! That criminal gang certaintly doesn’t ESTABLISH our rights, as one LP bozo recently said. http://www.independentpoliticalreport.com/2008/06/libertarian-party-marks-heller-victory/

To believe we can approach the criminal gang known as the US government in hopes that we can tweak or reform or persuade it to assume more power to police the states and stop the states from violating rights (and refrain from stopping states from, oh, legalizing marijuana), is more than stupid and naive, it is obscene and unlibertarian.

Posted by: Stephan Kinsella



Redacted email from brillian ninth amendment/con law scholar Thomas McAffee to me a few years ago. I think it was in response to an email where I told him I thought it made no sense for the Ninth Amendment to ever be incorporated against the states (or for mini-state bill of rights to include them) because the Ninth amendment is an open-ended series of rights–which makes sense when opposed against a limited powers state like the feds; but which makes no sense when paired with a plenary powers state govt. McAfee agrees w/ this, below, and also in his article:

Thomas B. McAffee, Inalienable Rights, Legal Enforceability, and American Constitutions: The Fourteenth Amendment and the concept of Unenumerated Rights, Wake Forest L. Rev. (2001)


McAffee: n. 16: “McDonald, supra, at 390 & n.6 (quoting Rufus King & Nathaniel Gorham, “Response to Elbridge Gerry’s Objections,” in Supplement to Max Farrand’s The Records of the Federal Convention of 1787, 284 (James H. Hutson ed., 1987)) (observing that Rufus King and Nathaniel Gorham had contended that a Bill of Rights was essential where there is a legislature of “full power & authority,” but not where its powers are “explicitly defined”). ”


and at p. 752 and n. 18: “When the Constitution was briefly considered by Congress prior to its transmittal to the states, Nathaniel Gorham of Massachusetts explained that ‘a bill of rights in state governments was intended to retain certain power [in the people] as the legislatures had unlimited powers.’ … This is why “no previous state constitution featured language precisely like the Ninth’s–a fact conveniently ignored by most mainstream accounts.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 124 (1998).” [emphasis added by NSK]”


As Amar notes (123-124): “As Professor McAffee has shown, the [Ninth] amendment’s legislative history strongly supports an enumerated-powers, federalism-ased reading. … on a federalism-based reading, the Ninth and Tenth fit togther snugly, as their words and their legislative history makeclear; but each amendment completments the other without duplicating it. The The Tenth says that Congress must point to some explicit or implicit enumerated power before it can act; and the Ninth addresses the closely related but distinct question of whether such express or implied enumerated power in fact exists. In particular, the Ninth warns readers not to infer fro the mere enumeration of a right in the Bill of Rights that implicit federal power in fact exists in a given domain. Thus, for examplel, we must not infer from our First Amendment that Congress was ever given legislative power in teh first place to regulate religion in the states, or to censor speech. … [T]he federalism roots of the Ninth Amendment, and its links to the unique enumerated-power strategy of Article I, help explain why no previous state constitution featured language precisely like the Ninth’s–a fact conveniently ignored by most mainstream accounts. … by the 1860s the federalism readingof the Ninth Amendment had faced considerably, as many post-1791 state constitutions did echo the wording of the Ninth Amendment, but not the Tenth. And so clauses that originally dovetailed later came unglued; thsu we now tell ourselves that the Tenth Amendment is about states’ rights while the Ninth is about individual rights.”


Email text (redacted):



” It pleased me immensely that someone who’s a careful student of the amendment so fully grasped the signicance of the mini-9th Amendments. If you want to see a contrasting view, see John Yoo’s Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (1993). What’s interesting is that Yoo was almost certainly “influenced,” to some degree at least, by Akhil Amar, who was his teacher at Yale. And in his Bill of Rights book, Amar relies rather heavily on Yoo’s work to reinforce his 14th Amendment theory–you recall, his view that the original framers did not draft the Ninth Amendment to secure unenumerated fundamental rights, but really as a “federalism” provision, but the 14th Amendment folks still intended to “incorporate” a misreading of the original Ninth. Yoo totally rejecte Amar’s understanding of the original meaning, and concludes that the 9th was “! declaratory” of inherent and natural rights all along. At one point, he even goes so far as to assert that “[t]he presence of these provisions in state constitutions undermines the reading of the Ninth Amedment as a rule of construction.” 42 Emory at 968. Yoo also relies rather heavily on In the Matter of J.L. Dorsey, 7 Port. 293 (1838), an Alabama case the involved that state’s so-called “mini-Ninth Amendment.” Yoo correctly saw that Alabama’s highest court read the provision as suggested that the state legislature was one of enumerated powers, and therefore found that it lacked the power to implicitly prohibit dueling by someone wanting to be admitted to the state bar. Dorsey’s a very odd decision, and does seem to use the state version of the Ninth to help justify a restrictive reading of state power in the interest of securing what it deemed a right. Yoo therefore said it stood for mini-Nin! th Amendments as “powerful rights-bearing texts. See 42 Emory L.J. at 1016-18. Yoo omits that more recently the same court has stated that “the federal Constitution is a grant of power, while the state Constitution is only a limitation of power.” Alford v. Sstate, 54 So. 213, 222. It has followed numerous other states in the view that the “Legislature . . . is plenary and unrestricted except by specific limitations in the Constitution.” Johnson v. Robinson, 192 So. 412, 415 (Ala. 1939). I totally agree that Amar’s theory, thought “not insane,” as you observe, is “just not supportable.” The Wake Forest article develops my reasons for thinking so; it is interesting to me that, notwithstanding the tendency on occasion for American courts, both state and federal, to engage in what Tom Grey calls unwritten constituitonalism, virtually no state courts have based such decisions on s! o-called mini-Ninth Amendments–with an exceedingly rare exception as in the Dorsey case cited above. The first case in the modern era–state or federal–to rely on the Ninth Amendment to justify finding and imposing fundamental and unenumerated rights, was the Goldberg concurrence in Griswold. I do also agree that the Fourteenth Amendment presents a bit of a mess; the framers were mainly aiming at ensuring equality before the law. If incorporationism makes any sense, it would only be because some framers thought that denial of a right so fundamental that it found its way into the Bill of Rights, could not be denied to any class of citizen–especially the freedmen–without in effect denying them equality before the law.


I don’t know if you’ve followed the stirrings about the Iraq war, etc., but Yoo is also the Berkeley law professor who was a member of the Office of Legal Counsel for the Justice Department and authored the “infamous” torture memo, arguing that federal statutes prohibiting torture of war prisoners would be unconstitutional if applied to the American military as invading the President’s authority as Commander-in-Chief. The most remarkable thing he argued is that decisions about what interrogation techniques to authorize–including ones that would amount to torture–would be the equivalent of moving soldiers on the battle field and generally making tactical and strategic decisions about how most effectively to fight a war. The other night I saw Colin Powell on Larry King Live, where he acknowledged that the only “exception” to his “complete retirement” from public life was ! lobbying on behalf of John McCain’s bill trying to codify the army field manual in interrogation. When Larry King, of all people, asked Powell: what about the President’s power as commander-in-chief? Powell responded by referencing art. I, section 8, cl. 14, which enumerates Congress’ power “To make rules for the government and regulation of the land and naval forces.” Beyond Congress’s enumeration of power, Powell might have said (but didn’t), the American commitment not to use torture in interrogating prisoners–the very obligation that the acts of Congress were attempts to implement–were the product of treaties that the President himself had negotiated and agreed to. It is difficult to imagine that the President has authority–as commander-in-chief–to ignore solemn national commitments not to use torture, commitments that a President negotiated and signed off on.


You alluded to Bybee being on my resume, commenting: “an LSU law prof, if I am not mistaken, no?” Then: “He came there after I left in 1991, I believe.” You’ve got the timing of Bybee’s arrival at LSU about right (if I’m remembering correctly). Bybee then accepted an offer to teach here at William S. Boyd law school in Las Vegas, Nevada. It’s from here that Bybee went to head up the Office of Legal Counsel at Justice–where he was the ultimate signor of the “infamous” torture memo–the one described above, which was written in fact by Professor Yoo–before it went on to Alberto Gonzalez as White House Counsel. Bybee is now a judge on the Ninth Circuit–appointed, of course, by Bush. I was trying to figure out what you meant in saying that Bybee went to LSU “after I left in 1991.” Did you teach at LSU? Or di! d you go to law school there? I ask partly because a present colleague of mine, Chris Blakesley, also taught law at LSU. Blakesley and I, I’m afraid to admit, disagree sharply with Jay about the Geneva Convention, the anti-torture statutes, the commander-in-chief authority, etc. Bybee was assistant White House Counsel under the first President Bush. Blakesley and I are both old hands on the side of congressional power in war-making. We both worked with Ed Firmage, a U. of Utah law professor who has long been a strong proponent of congressional power in war-making. Firmage co-authored, with Francis Wormuth, To Chain the Dog of War: Congress’s War Power in Law and History.


I had to take off because we had Eric Foner, the reconstruction historian visit the university–and the law school–today. I’m back now, but will soon need to take off because we’re taking him to dinner. So I’ll have to take home and study a bit your “extreme federalist” theory. I’ll definitely come up with some kind of reaction. I appreciate the thoughts on generating a website. I definitely need to do that. I may even go to the site you suggest, unless I chat with one of our computer people here and they seem confident that they can just help me do it. I read a couple of reviews of Barnett’s earlier work, so I’ll have to take a look-see at yours one of these days. No question that if you push the libertarian agenda via the 9th and 14th Amendments–a’la Barnett–you necessarily become something of a “nationalist.” You will have definitely! come an awfully long ways from the Antifederalists, who unquestionably feared, first and foremost, distant power. I confess to mixed feelings. An ironic twist of Barnett’s new book is that it is dedicated to Madison–who would have had a “fit” at Barnett’s reading of federal power to invalidate state law a’la the 9th Amendment–and Lysander Spooner, the abolitionist, who would be more pleased at Barnett’s results, but brought an a-historical agenda to reading the Constitution. Barnett–unlike Charles Black, Calvin Massey, Norman Redlich, etc. etc.–at least tries to hold on to the idea that the Ninth Amendment itself doesn’t apply to the states (although, if his logic is solid to begin with–that it refers to rights invariably “retained” under social contract political theory–it remains a mystery to me why the same idea wouldn’t just apply to state governments with or without a text). I think Barnett knows, however, that ! if your read the Ninth Amendment as referring to rights deemed “inherent”–and the concept therefore as limiting state governments–your necessarily have immediately cause there to be significant and quite legitimate doubts about the constitutionality of slavery. Yet Barnett seemed extremely dismayed at my suggestion that the 9th might well, on his sort of reading of the text, apply as a limit on state government. I presented, Does the Federal Constitution Incorporate the Declaration of Independenc?, and he seemed quite unhappy with me that I would intimate that the substantive reading of the amendment he offers would be hard not to apply to limit the states. Alas . . . . . . . . . . . . . . . .


I’ll get back when I’ve read your selection on independent and adequate state grounds.


Down with the Bill of Rights

Heller and it Central State Cheerleaders


Various points:

Rich that Sandefur the statist (non-anarchist; not even minarchist as far as I can tell) is challenging my libertarian credentials.


His lie about my favoring state power to violate rights. Also his ridiculous comments about the 14th.


Squalid—from Gene Healy.


Indeterminism: from Hasnas.


DC as a “quasi-state”: first: fact of federal control is not dispositive; after all they control us, and other states (via the 14th). Second, fact of federal creation is not dispositive (UN; NATO; NAFTA; states creating federal gov’t; newer states). Third, the “way it was supposed to be” is not dispositive: 14th Amendment itself; Louisiana Purchase; Constitutional Coup (convention); Civil War.




Freedom Under Fire: U.S. Civil Liberties in Times of War

By Michael Linfield (1990)

  1. 23: “During the Civil War, the Constitution was put into a deep freeze:
  • Complete censorship was imposed on all telegraphic communications;
  • Anti-administration newspapers were closed, their editors jailed or banished;
  • Tens of thousands of civilians were arrested and tried by military tribunals, or were simply arrested and kept in jail without any charges being brought against them;
  • Confederate leaders were jailed after the war without ever being brought to trial;
  • Property was confiscated from pro-slavery whites; slaves, rather than being freed, originally became the property of the U.S. government;
  • Habeas corpus was illegally and unconstitutionally suspended.


And let’s not forget that whatever protections the BoR afforded whites, this was not so for blacks until after the Civil War.  Even in the four slave states that remained in the union, during the civil war “Slaves had no right to habeas corpus, trial by a jury of their peers, freedom of speech or of the press, or any of the other rights guaranteed by the Constitution. Even the slaves’ right to life itself was dependent upon the whims of their masters.” P. 29, n *.



Plenary: p. 388: “there was a logic to these inclusions [of declarations of rights in state constitutions during the American Revolution], for the new state governments, unlike governments of delegated and enumerated powers, had (as representatives of the sovereign people) all powers not constitutionally forbidden them.”


407, n.31: The Court in In re Rahrer, 140 U.S. 545, 554 (1891) held that the police power “is a power originally and always belonging to the States, not surrendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive.”


Enumerated powers sufficient:


  1. 390: According to Col. Joseph B. Varnum “in Massachusetts, ‘the legislative have a right to make all laws not repugnant to the Constitution,’ and if that were true of the United States Constitution, ‘there would be a necessity for a bill of rights.’ But that was not the case; under Articl I, Section 8, all powers were ‘express, and required no bill of rights.’”
  2. 6: Rufus King and Nathaniel Gorham: “When the constitution vests in the Legislature ‘full power & authority,’ . . . a Declaration of Bill of Rights seems proper, But when the powers vested are explicitly defined both as to quantity & the manner of their exercise,” a bill of rights “is certainly unnecessary & improper” (ital. added).


  1. 390: reason for bills of rights in England, as James Iredell noted, was b/c there was no written constitution that showed “plainly the extent of that authority which they were disputing about.” But if there had been a written constitution in place, “a bill of rights would have been useless.”


Rights converse of power:

  1. 391: James Wilson: regarding the difference between state constitutions and the federal constitution: “A bill of rights to a constitution … is an enumeration of the powers reserved [by the people]. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. [Thus] an imperfect enumeration would throw all implied power into the sale of the government, and the rights of the people would be rendered incomplete.”


Inapplicability to states:

  1. 397: An earlier draft of the amendments that became the bill of rights, passed by the House, had them applying to the states as well as to the federal government; the Senate then removed their applicability to the states.



Uselessness of paper guarantees:

  1. 402: “the Court has not been willing to enforce or honor the Bill of Rights whenever one or more of seven sometimes overlapping conditions are present: (1) the justices feel that the integrity and independence of the judiciary are in danger of compromise or destruction by the political branches; (2) the president and Congress are united in support of particular policy objectives; (3) the Court sympathizes with or is indifferent to specific violations of the Bill of Rights; (4) the nation is gripped by a widespread sense of emergency, local or national; (5) the country is at war; (6) groups or individuals targeted by repressive policies are extremely unpopular; and (7) the revenues of the national government are at stake. To repeat, whenever any of these conditions is present—which is to say, precisely the circumstances in which individual rights are most imperiled— the Supreme Court tends to look the other way, at least until the conditions disappear.”


  1. 417: “the Bill of Rights has never been an especially effective guarantor of the rights of people vis-à-vis the national government, and indeed … it has tended to be least effective in those circumstances wherein its protection was most needed.” (emphasis added)


  1. 406: s in a section showing how the bill of rights has done little to stop the federal government from violating rights in the bill of rights:”A little earlier [than 1944], the Court had upheld the presidential seizure of the property of certain Russian-Americans on the strength of an executive agreement, the so-called Litvinov Assignment of 1933–again despite the Fifth Amendment. On the basis of that and two related decisions, the president might theoretically bargain away the rights of all all citizens merely by agreeing to do so with a foreign head of state.n30″”30. United states v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942).”


See also http://en.wikipedia.org/wiki/Bricker_Amendment


403: the abuses of the Bill of Rights and the Constitution by Lincoln during and after the Civil War.

  1. 404: After Franklin Roosevelt’s court-packing plan, the Court started approving his unconstitutional New Deal measures, and “[d]uring the next generation …, despite countless overt violations of the Bill of Rights, the Court held only one act of Congress and one action of a president unconstitutional.”


Jefferson himself: see If Even Jefferson Was Bad…


  1. 414: During WWII, “the incarceration in ‘Relocation Centers’ of 115,000 persons of Japanese descent, of whom about 70,000 were American citizens.”


  1. 2, p. 389: “the Virginia constitution of 1776 … whose bill of rights … read ‘that all men are by nature equally free and independent,’ but which did not result in freeing the slaves.”


393, n. 9: Madison believed bills of rights were mere “parchment barriers,” and that “experience proves the inefficacy of a bill of rights on those occasions when its control is most needed”.


401: n discussing the Third Amendment’s prohibition on quartering troops in private homes, he has a great quote by Edward Dumbauld, who noted that the armed services “have not put soldiers into the houses of citizens; they have simply removed the citizens from their houses and put them in the army, navy, and air force.” Well, thank goodness that the Third Amendment, at least, wasn’t violated! See my The Useless Third Amendment.


  1. 398: “the Ninth Amendment sought to guarantee that the first eight would not be dangerous, and the Tenth declared them to be unnecessary.”

407: Despite the Tenth and Ninth Amendments, broad construction of the IC clause by all three branches of the federal government has “laid the foundation for the development of an enormous federal police power, not contemplated by the original Constitution, that enables the federal bureaucracy to flout the Bill of Rights wantonly.”

See also: Tom Dilorenzo, The Founding Father of Constitutional Subversion: “Hamilton was also likely to be the first to twist the meaning of the Commerce Clause of the Constitution, which gave the central government the ability to regulate interstate commerce, supposedly to promote free trade between the states. Hamilton argued that the Clause was really a license for the government to regulate all commerce, intrastate as well as interstate. For “What regulation of [interstate] commerce does not extend to the internal commerce of every State?” he asked. His political compatriots were all too happy to carry this argument forward in order to give themselves the ability to regulate all commerce in America.”



Even dangerous:


393: Hamilton: listing rights (lack of power) is “not only unnecessary … but would even be dangerous,” because the listing of certain rights would contain “exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”


  1. 399: July 14, 1798, “Congress passed and Adams signed the Sedition Act, making ita federal crime to publish ‘any false, scandalous and malicious writing’ against the president, congress, or the United States government.” Note the word “false”. Under common law, truth was not a defense to seditious libel (unlike for normal libel). By making truth a defense under the Sedition Act—by having higher standards for seditious libel than under the common law—“the act augmented rather than rather than abridged freedom of the press.[] The first of many instances in which the federal government suppressed freedom of the press was thus justified by the First Amendment.”
  2. 400: Under the common-law in pre-Bill of Rights America, because juries could exercise jury nullification, “[i]n practice they were the government, declaring what the law was, finding its source in nature and in principles of natural equity. When they saw fit, they disregarded the instructions of the judge as to what the law was, and even the plain language of an act of Parliament or of a colonial or state legislative enactment.” But the Seventh Amendment then provided “that no fact tried by a jury could be reexamined in a higher court. By implication, limiting the exemption to reexamination of facts effectively confirmed the power of appellate courts to overturn jury findings in matters of law.” Thus, within a couple of generations, “the power to decide questions of law had been almost totally taken away from juries.”


Second Amendment: not only useless, but used now as a grant of power:

More Heller-aceous Damage to Gun Rights


And via incorporation: p. 418: “the application of the doctrine of incorporation has effectively completed the destruction of the federal system.”


Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.



Danger of relying on Bill of Rights or any paper constitution: They’ll never stop: See Tom Palmer’s “Absolutism Redux,” criticizing Cass Sunstein’s The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever, in which “Sunstein seeks to give constitutional status to welfare rights.”


See also

Constitutional Structures–Finnish Idea

As many libertarians are aware, there are a variety of constitutional structures and mechanisms designed to reduce or slow the inevitable growth of the state (on the inevitable growth of the state, see on this Hoppe’s various works on monarchy and democracy, at www.HansHoppe.com). Some of the structures include having a written constitution, horizontal separation of powers (tripartite system of legislature, executive, and judicial) and checks and balances, enumerated powers, a bill of rights, vertical separation of powers (federalism), etc. Others measures could include a requirement to cite the specific grant of authority in any federal statute; jury nullification; explicit recognition of the power of concurrent review (each branch can “veto” laws it things unconstitutional); and right to exit (secession) and emigrate. Supermajority requirements… and the right of the states to overturn Supreme Court decisions are other ideas. Sunset laws (statutes expire unless renewed) and jury trial requirements (combined with double jeopardy), and having a decentralized common-law type system instead of a legislation-based system have also been used or proposed. (I have summarized and discussed various other measures in a couple of articles–Taking the Ninth Amendment Seriously (Conclusion section), and Legislation and the Discovery of Law in a Free Society (p. 175-177).) Recently, in reviewing the draft chapter on Finland’s e-commerce laws for a legal treatise I edit, I came across the following interesting constitutional provision:

The Constitution provides for a possibility of enacting limited exceptions to the Constitution by passing legislation observing the procedure of enactment used for amending the Constitution. In this manner, the legislator can avoid an issue of unconstitutionality arising with regard to legislation that is in its substance contrary to the Constitution. Such laws do not, however, acquire the high normative status of constitutional amendments, but are like ordinary laws; they can be repealed in the general enactment procedure. Under normal conditions, the above procedure is not widely used; indeed, the Parliament has stated the procedure shall be used “only under quite exceptional circumstances and for very pressing reasons”.

What this means is that if the legislature wants to enact a statute that is unconstitutional, instead of having to actually amend the Constitution (with supermajority and other procedural requirements), the legislature can pass the questionable statute with the same supermajority and other procedural requirements otherwise required to amend the Constitution, and that law itself will be constitutional but it will not be viewed as having more fundamental normative implications than it would if it were put in the Constitution itself. Also, unlike amendments to the Constitution, it can be repealed in the same way a normal statute could be. I don’t know if it’s a good idea or not but it is interesting, and would seem to be one way of reducing the mischief of amending the Constitution. OTOH, Congresscritters are mighty creative at finding ways to circumvent the Constitution.

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