Randy Barnett at Stanford
So the famous libertarian professor came today to give his talk promoting his new book "Restoring the Lost Constitution." His argument is that we've excised certain portions of the constitution (9th and 10th Amd., enumerated powers for federal government) and by doing so have changed our societal system from one of islands of federal power in a sea of liberty to islands of liberty in a sea of federal power. While it was particularly enjoyable to watch the professor scavenge the "emenations and pernumbras" line in Griswold designed to make the case fit in Carlone Products Footnote Four, I truly wanted to agree with Barnett's conclusion as to the ideal system.
Barnett wants us to return to the Original meaning of the Constitution, where the presumption is that all liberty carries a presumption of validity against state action unless the state action is NECESSARY and Proper (he feels the court has excised the former). While careful not to endorse the harm principle (laws are valid that prevent harm to other people), he was unable under questions to show how his system would be sustainable. Who is to determine what is necessary if we returned to Barnett's system? If the definition was corrupted once (as Barnett and I both agree), wouldn't it be likely to get corrupted again in the future?
Barnett, after the talk, agreed that these were valid concerns (shared by some of my liberterian professor mentors at Stanford), but he still thought the fight was worth making. I, on the other hand, feel that he gave me a nice dream, which makes the reality of the hopelessness of its implementation all the more painful.