The presumption of liberty

I've just started slowly moving through a scholarly book by Randy E. Barnett, a Boston University prof and senior fellow at the Cato Institute, called "Restoring the Lost Constitution: The Presumption of Liberty." By the time I got four pages through the first chapter, the musings on the Ninth Amendment that I posted yesterday were crystalized. The bad news is Barnett says the Ninth is treated with derision and scorn by the average legal mind, "as in, 'what are you going to argue, the Ninth Amendment?'"

But as if to drive home the point, Bill St. Clair the other day found an interview with Judge Andrew Napolitano about his book "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws." The key point and headline of the Pittsburgh Tribune-Review article: "The default position is freedom" in constitutional matters.

The bad news, of course: The message of Napolitano's book is "That rights are not guaranteed, even though the Constitution says they are. That government will labor mightily to make holes in the Constitution to avoid and evade it. And that a government that breaks its own laws in the act of prosecuting people is not your friend. It doesn't have a happy ending, this book. It's filled with horror stories!"

The good news is "our rights come from our humanity - they don't come from government - and our humanity comes from God. So we have the right to speak freely, to think freely, to travel and to associate - whether or not it's written down and whether or not the government chooses to protect it, because those are natural rights that no government in a popular democracy can take away."

Napolitano came by his beliefs through practical experience: "After about a year and a half on the bench of trying criminal cases, I began to see that the Constitution does not mean what it says to the government. And that every single government lawyer who came before me, whether it was jaywalking or murder and everything in between, seemed to be spending all their time justifying ways around the Constitution, trying to pull the wool over my eyes, and claim that the things that the police did that were so obviously and patently illegal and unconstitutional were in fact condoned by higher courts."


I'm not sure what to do as a solitary soul against a massive force intent on throttling our inalienable rights. The easiest and most practical course is to ignore it, fly under the radar as best as you can, and hope to be left alone. As the fictional Malcolm Reynolds put it so eloquently to The Operative sent by the massive force in his world, "I got no need to beat you, I just want to go my way."

Perhaps it is enough to coax people into reading the words and conjuring what kind of state we'd have if we insisted that the Constitution means what it says. I realize that for now I'm preaching to the converted with these musings and my "Constitution in Plain English" theme; the handful of readers who visit here regularly are long familiar with these arguments. But laying these thoughts out there like this is planting seeds; hopefully some of these seeds will take root in fertile minds as they surf past here on their way somewhere else. And we'll see where it grows from there.