Is the Constitution Libertarian?

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In honor of the 221st Constitutional Day, guest speaker Randy Barnett gave the Annual B. Kenneth Simon Lecture at the Cato Institute in an effort to set the record straight about whether the Constitution is libertarian.

Randy Barnett, a professor of legal theory at Georgetown University Law Center, explained that the Constitution is a governing document which governs those who are in power and who govern others. However, he explained that the Constitution also defines the limit of powers on those who govern us.

“As it turns out, this is not an easy question to answer,” Barnett said. “There is a difference between constitutional interpretation and constitutional construction.”

“The original Constitution protected the rights of life, liberty and property against infringement by the federal government in two different ways: First, and foremost, Congress was not given a general legislative power, but only those legislative powers herein granted, referring to the powers that were specified in Article 1, Section 8,” Barnett said. “You don’t need the Tenth Amendment; just look at the first sentence of Article 1 which defines legislative powers and limits those powers herein granted. It is striking how these powers, the powers on the list, Article 1, Section 8, avoid expressively restricting the rightful exercise of liberty.”

Thus, Barnett explained that the first ten Amendments only restricted federal powers, but the states still retained their power to enslave some of their citizens. This, Barnett explained, “caused the original Constitution to be greatly flawed from a libertarian perspective.” However, he pointed out, “fortunately, it was amended, which made it far more libertarian.”

Barnett explained that modern libertarianism is based on five principles:

• defense of self and others;
• restitution;
• first possession;
• freedom of contract; and
• private property.

Nevertheless, he explained that the original Constitution was far from a libertarian base since it allowed the states power to enslave people.

According to Barnett, “there are only three powers on that list that might be construed as restricting the rightful exercise of liberty.” Thus, Barnett explained that the Necessary and Proper clause, the power of Congress to promote science and useful arts, and the power of taxation rate high on the list in restricting individual liberties. For example, Barnett explained that the Necessary and Proper clause gives Congress the power to make all laws that are necessary and proper. Conversely, libertarians are divided about granting exclusive rights to some authors and inventors that might violate the rights of others through their writings and discoveries. Also, Barnett briefly explained that the power to tax can also pose a problem concerning liberties.

“I would just merely say that whether a general power to tax does or does not violate the pertaining rights of the people to their property, it is certainly a restriction of liberty on a different order than a direct tax: regulation or restriction on the property rights that we have.”

“Of course the Supreme Court has upheld countless federal laws restricting liberty, primarily under the powers of Congress to regulate commerce, with an open-ended reading of the Necessary and Improper clause, Barnett said. “Pretty much every Commerce clause case that has been used to restrict liberty has been done in combination with an over-broad reading of the Necessary and Proper clause; it’s done by not using the Commerce clause alone.”

Barnett explained that “the courts have upheld the power of Congress to spend tax revenues for purposes other than procuring its enumerated powers.” “With respect to federal power, the text of the original Constitution is far more libertarian than the retroactive Constitution enforced by the Supreme Court.”

Barnett explained that the Thirteenth Amendment abolished slavery, but pointed out that it was “the Fourteenth Amendment that radically altered the federalism of the original Constitution.”

“For the first time,” Barnett explained, “Congress and the courts could invalidate any state laws that abridged the privileges of immunities of the citizens of the United States.”
However, Barnett explained that we have more than the Constitution to ensure liberties now, because two years after the Constitution was enacted, the Bill of Rights was adopted onto the Constitution.

Barnett explained that the Bill of Rights gave American citizens express liberties; liberties that included freedom guarantees, such as Freedom of Speech, The Right to Bear Arms and The Right to Peaceably Assemble.

According to Barnett, “The Bill of Rights provided different procedural assurances that laws would be applied accurately and fairly to particular individuals.” Further, he added, “All are consistent today with libertarian philosophy.”

Barnett also indicated that he believed that “the United States Constitution is the most liberal document ever adopted into law.”

Irene Warren is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.