Customer Reviews:
Philosophy - Libertarian perspective .......2007-06-18
This review will be mostly technical in nature. Some good reviews already exist that discuss the overview of the material.
1. Part 1 The Value of Freedom, 8 chapters.
2. Part 2 Freedom and the Law, 8 chapters
3. Part 3 Freedom in the Welfare State, 8 chapters
4. Postscript: Why I am not a Conservative, 13 pages
5. End Notes = 100 pages
6. Analytical Table of Contents (valuable for reference), listing sub-topics by page number = 7 pages
7. Name Index = 10 pages
8. Subject Index = 16 pages.
My Remarks: this is philosophy of government, plus some historical development, plus economic theory-and-practice. It is a rather tough read, exact logic and completed thoughts until each point is carefully constucted and then commented on.
There are many quote-able passages, and the exhaustive referencing confirms the scholarly style.
The print is small: 42 lines per page, 17 characters per inch.
So, the 3-stars are given so as to ward-off readers that are looking for libertarian views of a popluar nature. Though the reading is somewhat hard, the individual cases discussed make this a perfect source for a dedicated libertarian to reference.
The greatest political philosophy book of the 20th century.......2007-05-27
This is the most consistent level headed book of political philosophy I have read. The first section in particular has a new fascinating idea on almost every page. Hayek was not a libertarian. His thought allowed a fair amount of elbow room for public policy as the third section will show. I also found his postscript "Why I'm not a conservative" very interesting.
Individual Freedom.......2007-05-24
Frederich August Hayek
"Perhaps the fact that we have seen millions voting themselves into complete dependence on a tyrant has made our generation understand that to choose one's government is not necessarily to secure freedom."
"Freedom granted only when it is known beforehand that its effects will be beneficial is not freedom."
"If most people are not willing to see the difficulty, this is mainly because, consciously or unconsciously, they assume that it will be they who will settle these questions for the others, and because they are convinced of their own capacity to do this justly and equitably."
Excellent book service.......2007-02-20
The book came very quickly and was packaged well. Service excellent. Book was in excellent condition, even better than advertised. I appreciate the professional service.
Hayek--Orwell's Mentor.......2006-01-02
At the height of socialist popularism in England, cir. 1944, George Orwell, a leading proponent of socialism, believing in its promises as did many,if not most of Eurpose's leading intellectuals and politicians, wrote a review of Hayek's famous book, "The Road to Serfdom." Orwell wrote the review in the "Observer," London April 9,1944.
Hayek, mentions this fact as a footnote in chapter 17 of his classic book, "The Constitution of Liberty" published in 1960, as evidence of the disillusionment of socialist intellectuals, when they were confronted with the observation that individualism and socialism were mutually exclusive. Those same intellectuals had not accepted the proposition when advanced by Karl Mannheim in his book, "Man and Society in an Age of Reconstrucion" (1940). Mannheim had been a long opponent of socialism, but Orwell had only been converted after being exposed to "The Road to Serfdom." By 1960, when Orwell had become a world renowned author and staunch opponent of Big Brother doublespeak, Hayek recognized that the political proponents of socialsm which was dying as a political ideal, were now introducing the concept of the welfare state.
While virtually everyone alive today have been effected by Orwell's works and his prescient warnings about Big Brother, how many of us are aware of Hayek's infulence on him?
"The Constitution of Liberty" provides its readers with an enormous wealth of knowledge, of which this one footnote is only a small example. Each reader is bound to be effected in one way or another by the knowledge imparted to them, and this is one of the main lessons to be learned about "liberty" which requires the "rule of Law" to exist in today's society, but that Rule of Law must be understood. The failure of today's inteligencia is to fail to fully comprehend the meaning of liberty and its necessity in a world full of confusion from the confrontation of competing civilizations.
Unfortunately, Hayek is no longer alive to help guide us through the new millenium. Fortunately, he has left us a large volume of work, perhaps more relevant today than it was when written years ago. While "The Constitution of Liberty" is voluminous in itself, it should be kept as a reference book. Hayek's other works, "The Road to Serfdom" and his last published volume, "Fatal Conceit-the Evils of Socialism" published in 1980 is a magnificent continuation of Hayek's life long discertation on the evolution of mankind's growth from a tribal, familial society which did not require man to understand or protect Liberty, to a group of city-states that prospered because of the Liberties protected in Athens, but only moderately understood, so that such a great and wise philosopher as Aristotle would believe that freedom could only exist as far as a man could yell.
Hayek's understanding that Western Civilization has prospered from individualism, that it has grown and prospered from the freedom to travel, to trade, to exchnge property, material, real and intellectual. He explains why man must be humble, that humans progress from trial and error, not from conceited belief that one way or another way is correct. That to be free and liberated is to be free to make mistakes and government should exist to protect individuals'rights to make mistakes while they attempt to profit in their own ideals and beliefs.
Book Description
A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.
For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts.
Customer Reviews:
A insightful look at a incoherent method of judicial interpretation.......2007-10-05
Justice Bryer is the most dangerous justice on the Supreme Court. Time and time again, Bryer fails to declare laws that are unconstitutional, unconstitutional. Among the justices, Bryer declares the fewest laws unconstitutional. Out of context, this means little, if anything; however, the reasons for his actions, as outlined in this book, should be terrifying to any American that cherishes individual liberty. As other reviewers have noted, Bryer believes the constitution is essentially democratic, and his job as a judge is to encourage pragmatic decisions by the political branches. This view is inconsistent with the constitution, and Bryer's own opinions. It is inconsistent with the constitution because constitutional rights exist because those rights are not to be sacrificed to the majority. But Bryer's view requires exactly this. For example, Bryer has refused to uphold the Fourth Amendment, First Amendment, the Fifth Amendment, the Equal Protection Clause, and Federalism.... I could go on and on. The point is what Bryer refers to as judicial restraint is actually judicial negligence, because it is negligent for a judge not to do his solemn duty: uphold the constitution. Ironically, Bryer's view of an essentially democratic constitution contradicts his own judicial opinions. As noted above, Bryer has refused to protect enumerated rights of the constitution, often citing that he is encouraging the public's right to choose - I'd point out that oppression (denying fundamental rights) is not a right. But when it comes to unenumerated rights, Bryer has no problem taking those out of the political process. But wait, you say, I thought Bryer was suppose to encourage democracy; how does this fit in with his view of active liberty? The answer is it doesn't. Bryer has made up a method of interpretation that justifies some of his illogical decisions, but not all. To wit, abortion. An article in the Washington Post by Roger Pilon argues persuasively that abortion should be left to political branches (I've summarized it on wikipedia under Roger Pilon). Yet Breyer feels that concerning abortion, the constitution somehow becomes not what HE (emphasis added) claims it to be: essentially democratic, but the opposite, anti-democratic. I'm not arguing that abortion isn't protected by the constitution, but I am arguing that Bryer, who asserts that the constitution is essentially democratic, is a hypocrite when he asserts the right to choose to have an abortion is out of the political process.
I gave this book four stars because I think it is important for Americans to read and try to understand a very influential judge.
Love It or Hate It, It's Honest and Interesting.......2007-05-24
With many idealogical books, you will likely love them or hate them based on your own idealogy. Unlike most idealogical books, however, I think you will enjoy this one regardless of your own philosophy. Breyer clearly states his own method of constitutional interpretation and comes off as completely genuine.
Unfortunately he's often defending the indefensible. How in the world can sexual assault be considered interstate commerce? What about gun possession in a school zone as interstate commerce? Ludicrous! Yet Breyer clearly explains how he got there.
He tries to explain that he weighs the right of the people to govern themselves (democracy) against individual liberty. Sounds catchy. But wait... outside of a law that directly inhibits democracy doesn't that mean he can pick and choose which way to go on any other issue? He can uphold any law he wants by justifying it as democracy. Or he can strike down any law he wants as promoting individual liberty. How does he decide? To detractors the answer is obvious... he substitutes constitutional law with his own personal preference. Don't take my word for it though, read the book and decide for yourself. Is he really interpreting the constitution or just legislating from the bench?
Regardless of the holes and inconsistencies this book is still a great read. It's clear, concise, and Breyer lays it out there with an intellectual honesty you have to respect even if you don't embrace. Definitely read Scalia's Matter of Interpretation to get another approach used by Justices on the Supreme Court.
Short volume which is a reworking of a series of lectures.......2007-05-17
I had the pleasure of hearing Associate Supreme Court Justice Stephen Breyer speak. He's an engaging speaker, warm and funny. In preparation for his appearance I read his latest book, Active Liberty, a short volume which is a reworking of a series of lectures he gave at Harvard in 2001. In it, Breyer explains the concept of liberty and its responsibilities and his belief in the Constitution as a living, changing document. He also explains how the Supreme Court works, how it should work and how people whose opinions are sometimes diametrically opposed can still work together in a civilized manner, retaining respect for one another. The book reads like a lecture and the prose is not particularly colorful, yet this is a valuable book and the author presents a number of opinions that are surprising given his perceived political leanings.
Road to Serfdom.......2007-04-25
The "active liberty" advocated by Justice Breyer is another term for "passive tyranny." He substitutes his own personal moral judgment as opposed to ruling on the text of the Constitution. I don't care how Justice Breyer feels about an issue. A judge should not impose a moral viewpoint when the text of a law is silent. The Constitution can be amended as it has been 27 times before. But amendments are difficult to pass, as they should be, and those of Justice Breyer's political philosophy do not trust the people to get it right so they create terms like active liberty to confuse the uninformed. For those who agree with Justice Breyer I would like to play them in poker, with "active rules" which "grow" and "evolve" during the course of the game so that I can win every hand. You would be a fool to agree to play a game of poker with evolving rules and likewise should reject Justice Breyer's notions of "passive tyranny."
The Pro-Democracy Approach, Perspective, and Emphasis of Justice Breyer.......2007-04-02
The U.S. Supreme Court is seen by some as one of the most elitist of institutions. But the author of this book believes that it should be used for the most democratic of purposes.
The author contrasts active liberty--the freedom to actively participate in creating the shape and substance of governmental power, "sharing a nation's sovereign authority with its people--with the conservative ideal of negative liberty, protecting the public from the government. Both have their place, he says, but the the judicial interpretive decision-making process needs a greater emphasis on how a bill fosters active liberty.
"The people must have room to decide and leeway to make mistakes, " the author writes. If it is clear what the legislative intent was in a particular case, the court should seek to follow it, the author says. If it is not clear what the enacting legislative body sought to accomplish, then the court should adopt a "reasonable legislator" standard to seek to determine what was meant.
The author finds this far preferable to the approach advocated by others--the unnamed Justices John Scalia and Clarence Thomas, for instance--who seek to discern solely from the text what was meant. Legislators who write the bills may not be aware of the principles of statutory construction, the author writes, and so the court should not seek to enforce them over clear legislative intent. "And in the real world," the author writes, institutions and methods of interpretation must be designed in a way such that the form of liberty is both sustainable over time and capable of translating the people's will into sound policies."
The author approvingly quotes Judge Learned Hand as saying that the "spirit which seeks to understand the minds of other men and women," the "spirit which weighs their interest alongside its own without bias," is the "spirit of liberty itself." He quotes Justice Louis Brandeis as saying "we must ever be on our guard lest that we elect our prejudices into legal principles." Brandeis also wanted a judge to avoid being "wooden in uncritically resting on formulas in assuming the familiar to be the necessary, in not realizing that any problem can be solved if only one principle is involved but that ultimately all controversies of importance involve if not a conflict at least an interplay of principles."
The author believes the principle of democratic participation in government is eternal. "(T)he framers...wrote a Constitution that begins with the words "We the People." The words are not "we the people of 1787."
Rather their words, legal scholar Alexander Meiklejohn tells us, mean that "it is agreed, and with every passing moment it is re-agreed, that the people of the United States shall be self-governed." A self-governed people, the author makes clear, are free to go beyond the precise meanings their controlling document had at the time of its adoption over 200 years ago.
"In sum," the author states, "our constitution has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty. Our central commitment has been to "government of the people, by the people, and for the people....(T)his constitutional understanding helps interpret the Constitution--in a way that helps to resolve problems related to modern government."
The author takes pride in the constructive development of federal and state constitutions over time. He notes the radical Pennsylvania constitution of the late 1700's "that abolished the position of governor, substituting a twelve-member elected council; created a unicameral legislature with one year terms; imposed four year term limits; insisted that all public decision-making take place in public; and provided for a board of censors, a kind of statewide grand jury with separately elected members who would investigate all actions by the legislature and report to the public...."
But he notes that this "closer to Athenian version of democracy" soon failed. "Pennsylvanians found," he said, "that their government enacted conflicting policies, reflecting the vagaries of shifting public opinion, that through debt repudiation it had produced an insecure climate for business, and that those within government--a continuously changing group, were often at war with one another."
The author finds modern appplications of the principle of active liberty in six modern areas: speech, federalism, privacy, affirmative action, statutory interpretation,and adminstrative law. These discussions are perhaps briefer than they ideally would be, but they suffice to get the major point across.
Speech is an extremely broad topic: it includes warranties on labels, disclosure of information in securities laws and consumer protection laws, health laws forbidding tobacco advertising to children, discrimination laws banning statements of intent to discriminate, communication laws requiring cable broadcasters to provide network access, and campaign finance laws restricting citizen contributions to candidates. Different applications require different remedies: a one size fits all rule of speech can never be restricted in any cirucmstance would greatly limit many worthwhile democratic purposes.
"My argument," the author concludes after a detailed discussion of cases in numerous areas touching on free speech, "is that,in applying First Amendment presumptions, we must distinguish among contexts, and forms of speech. Reference to basic constitutional principles can help generate the relevant distinctions. And reference back to at least one general purpose, active liberty, helps both to generate proper distinctions and also to properly apply the distinctions generated. The active liberty reference helps us to preserve speech that is essential to our democratic form of government, while simultaneously permitting the law to deal effecitve with such modern regulatory problems as campaign finance and product or workplace safety."
The author's discussion of federalism embraces the regulation of toxic chemicals, the regulation of gun purchases, the ability of the federal government to commandeer local officials to enforce federal laws, improper state use of the intellectual property of others, toxic wastes,
tax assessments, Congress' Commerce clause powers relating to gun possession and violence against women, and issues of the "dormant Commerce Clause."
The author believes that more Congressional oversight and action is needed in these areas. "I am pointing to the Constitution's democratic objectives, explaining the complexity involved in attaining these objectives when modern technology is at issue, noting the related tension between these objectives and the recent cases, and suggesting that proper resolution of many such federalism issues cannot be left to the judiciary alone. There are likely better ways."
The author defines privacy to mean "a person's pwer to control what others can come to know about him or her." Privacy issues include trespass, wiretapping, eavesdropping, search and seizure statutes, personal data protection, video camera regulation, regulation of scanners and interceptors, customer purchasing profiles, medical records protection, genetic makeup of individuals, cell phone converstations, thermal imaging devices, and the meaning of reasonable expectations of privacy.
"The privacy example," the author writes, "...warns against adopting an overly rigid method of interpreting the Constitution--placing weight upon eighteenth century details to the point at which it becomes difficult for a twnety-first century court to apply the document's underlying values. At a minimum it suggests that courts, in determining the breadth of a constitutional holding, should look at the effect of a holding of a certain breadth on the ongoing policy-creating process. They should distinguish for these purposes between, say the "eavesdropping" and the "thermal imaging" kinds of cases.
"The example also makes it clear," the author concludes, that it is misleading to contrast "practical" and "legal" judicial concerns. In exercising caution, a judge is not deserting the judicial role of law interpreter in order to be practical. Rather, the judge is following the law, interpreting the Consitution in light of its own practical concern for an active liberty that is itself a practical process. That is to say, the Constitution authorizes courts to proceed "practically" when they examine new laws in light of the Constitution's enduring values."
In discussing affirmative action, the author focuses intently on the 2003 case that renewed, it, redefined it, and in different wasys restricted and expanded it. The Court re-affirmed that the Constitution could take account a a person's color in remedying past discrimination or achieving other worthwhile social objectives. Breyer approvingly quotes Justice Ruth Bader Ginsburg--"Actions designed to burden groups long denied full citizenship stature are not so sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated"--and Judge John Minor Wisdom--"Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination."
"When faced with one interpretation of the Equal Protection Clause that, through efforts to include, would facilitate the functioning of democracy and a different interpretation of the Equal Protection Clause that, trhough perceived exclusion, might impede the functioning of democracy, is it surprising that the Court majority chose the former?....(I)t is not surprising that that the Court interpreted the Equal Protection Clause in a way that diminishes the risk of serious racial division--a division that exclusion from elite educational institutions would aggravate....Sometimes reference to active liberty can help a court choose between competing interpretations of constitutional provisions that, on their face, seem based upon other values. Gutter shows how this is so."
The author's examination of statutory interpretation "contrasts a literal text based approach with an approach that places more emphasis on statutory purpose and congressional intent. It illustrates why judges should pay primary attention to a statute's purpose in difficult cases of interpretation in which language is not clear. It shows how overemphasis on text can lead courts astray, divorcing law from life--indeed, creating law that harms those whom Congress meant to help. And it explains why a purposive approach is more consistent with the framework for a "delegated democracy" that the Constitution creates."
This chapter uses cases dealing with the Foreign Services Immunities Act, the Federal Arbitration Act, and the federal habeas corpus statute as examples. The author favors the use of a "reasonable legislator" standard
to guide the courts when the leislative intent of a given statute as related to a particular problem is not clear because this standard "helps statutes mjatch their means to their overall policy objectives, a match that helps translate the popular will into sound policy. An overly literal reading of a text can too often stand in the way."
His final example of the value of the concept of active liberty lies in administrative law. "To achieve our democratically chosen ends in a modern populous society requires some amount of administration, involving administrative, not not democratic, decision-making. To achieve these same ends in a technologically advanced society requires expertise....Without delegation to experts, an inexpert public, possessing the will, would lack the way. The public understands this fact....As classically conceived, administrative law helpos to implement the legislature's choice of when and how to delegate decision-making to administrators and experts."
The author focuses upon the principle of judicial "deference" to agency interpretation of statutes, a principle that transfers the interpretive function from the judicial branch to the executive branch. Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is well-dissected for this analysis. The author favors treating the judicial deference this holding requires "not as an absolute rule, but as a rule of thumb."
The author finds that "In all likelihood a hypothetical reasonable member of Congress would have decided the delegation/deference question so as to help the statute work better to achieve its ends. And these ends usually reflect the general desires of the public....Active liberty provides a democratic rationale for better functioning administrative law."
In summarizing his argument after completing his examples, the author makes clear that "I am not arguing for a new theory of constitutional law....I have argued for a greater awareness of and emphasis upon, the Constitution's democratic imperative....(to)help Americans remain true to the past while better resolving their contemporary problems of government through law."
In the final section of his book, entitled "A Serious Objection," the author takes on the "textualists" and "originalists"--colleagues and scholars generally of the radically conservative persuasion who would strongly dispute his blandly presented views. For those who find conflict essential to understanding differences of ideology and nuance, this is the best section of the book, even though it carefully avoids mentioning the names of the author's adversaries or engaging in any personal attacks on them.
"Why do I point out the uncertainties, in close cases, of linguistic structure, of canons of interpretations, and of history," the author asks rhetorically. "Because these difficulties mean that the "textualist," "originalist," and "literalist" approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history or tradition apply now?....I do not believe that textualist or originalist methods of interpretation are more more likely to produce clear workable legal rules....Nor is clarity exclusively promoted through use of rules....(I)nsistence on clear rules can exact a high constitutional price...."
The author concludes that "the Constitution is not a document designed to solve the problems of a community at any level--local, state, or national. Rather it is a document that trusts people to solve these problems themselves. And it creates a framework for a government that will help them do so. That framework forsees democratically determined solutions, protective of the individual's basic civil liberties. It assures each individual that the law will treat him or her with equal respect. It seeks a form of democratic government that will prove workable over time."
The author's book can be read on different levels: as a brief overview of a moderately liberal justice's view of constitutional law, or as a detailed outline of the same. Reading it the former way can be done at one sitting, but agonizing over the detailed meanings of the many fine distinctions the author makes can take a long time.
This is a great book for those involved in the legislative process at state, local or federal levels, and those seeking to better teach or learn the law. The author writes not a call to arms, but a plea for an awakening of a new understanding. Justice Breyer lacks the outspokenness of Justice William O'Douglas, and the bridgebuilding issue-oriented passion of Justice William Brennan. But he has a zeal for the enabling of an active public role for the citizens of our country, and this book places that zeal in the context of how our Constitution functions and should function.
Customer Reviews:
Excellent Service!.......2007-05-10
Excellent service and turnaround time! Would definitely deal with this seller again!
Please get this book!.......2000-03-20
This is an excellent book.
Mr. Young devotes only a few pages of this thick volume to his own opinions, mostly just allowing those alive back in Constitution-making days to speak for themselves about the Second Amendment. And speak they do. Truthfully, I've never read the whole book straight through, but every time I crack it open to some random page I am amazed at the attitudes people had back then. How different from our modern sheep-like mentality, or the version of history we're fed by today's pop culture.
This book ought to be in every public library and on every citizen's bookshelf.
An outstanding collection of primary sources........1997-07-04
The book reprints approximately 500 documents from the period surrounding the introduction and ratification of the Second Amendment. Included are newspaper articles, pamphlets, letters to the editor, debates from the federal Constitutional convention, debates from the state ratifying conventions, and Congressional debates.
Author David Young has brought together, for the first time, all of the original source material regarding what the Second Amendment meant to the nation which enacted it. The book opens in the summer of 1787 with the federal Constitutional Convention debating Congressional powers regarding the militia.
One of the final major documents of the book is a January 29, 1791 article in the Independent Gazetteer (a Philadelphia newspaper), in which the author, who identifies himself only as "A Farmer" warns: "Under every government the dernier [last] resort of the people, is an appeal to the sword; whether to defend themselves against the open attacks of a foreign enemy, or to check the insidious encroachments of domestic foes."
In between the first and last documents are a treasure trove of American history. Leafing through these pages, you encounter the great men who founded our Republic, and whose words speak to us today. Wrote Tench Coxe, James Madison's friend, in the Feb. 20, 1778 Freeman's Journal: "Who are the militia? are they not our selves...Their swords, and ever other terrible implement of the soldier, are the birthright of an American."
Hear Patrick Henry thundering from the June 5, 1788 Virginia ratifying convention: "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force you are inevitably ruined."
The men who speak to us through The Origin of the Second Amendment harbor no fear that government would interfere with "sporting" guns or hunting. They express the greatest apprehension of select, uniformed military forces, such as the standing army.
As The Origin of the Second Amendment makes unmistakably clear, the great object of the Second Amendment was to preserve liberty by ensuring that the American people would have in their individual hands the weapons with which to resist federal tyranny. The "well-regulated militia" included almost every able-bodied free male.
In addition to collecting an excellent selection of documents, author David Young also provides a good introductory essay summarizing the historical context of the debate and ratification of the Constitution and the Bill of Rights, as well as an appendix giving the full text of all state Bill of Rights from 1787-89, and a very detailed index.
Besides supplying many hours of pleasure to anyone interested in American history, the book would also make an excellent gift to a local library
Customer Reviews:
Thomas Jefferson, slave master, slave trader.......2004-03-14
Biographers of Jefferson and historians of the American Revolution have a dilemma, resulting in the inspirational dayglow treatment of their subject. Why should should anyone in pursuit of the facts have a dilemma, the facts speak for themselves? This is an invaluable portrait in greyer hues and contains the delete button data in its two chapters on Jefferson beside a detailed and very interesting history of the slavery debate in the period of the Constitution. Since Jefferson was a man of his time and yet also a man in an extraordinary time almost out of time, the paradox finds what we might expect, a man blocked and buffered in a semi-conscious state of contradiction. Skip Nietzsche, here's the dull reality: in a strange way the realization Jefferson was 'multi-phrenic' rescues Jeckyll here. Yet this makes Jefferson interesting in a different way, in a very useful book (that won't make the bestseller lists). Good piece, fascinating. Ironically rescued Jefferson from my nervous disbelief in many yankee doodle treatments. Makes him fascinating all over again.
Possibly Definitive?.......2002-02-25
Unlike most historians who consider slavery as an unfortunate sidebar to the ideological and political foundations of America, Finkelman boldy places slavery at the center of America's founding. Beginning with the Constitutional Convention of 1787 and continuing through to Jefferson's Declaration of Independence, his views on race and slavery, and his relationship to a woman enslaved to him (Sally Hemings), Finkelman makes a very valid argument that the "traditional" political leadership of the Jeffersonian era was perpetually - not occasionally - in debate about the issue of slavery, with most of those leaders falling on the pro-slavery side of the argument. The real value of the book is Finkelman's two chapters on Jefferson, whose political influence and opinion where nearly as revered by his peers as they are by contemporary early American historians. While noted historians such as Dumas Malone, Joseph Ellis, and Merrill Peterson have stretched the bounds of interpretation of the few seemingly anti-slavery comments Jefferson made or wrote in order to cast him as the unfortunate victim of an institution which he disliked, Finkelman is one of the first to put all of Jefferson's views on slavery and race - the few that seem anti-slavery, the majority that are anti-black, all of which are contradictory - together in one place, IN THEIR PROPER CONTEXT, up for public scrutiny. For anyone wanting an approach to understanding Jefferson's true views on slavery - based on the historical evidence - this is the book to start and, for now, end with. I didn't give it five stars because its focus is kind of narrow, but that could be because Finkelman has done such a great job of narrowing his focus and successfully arguing his understanding of "Race and Liberty in the Age of Jefferson."
Book Description
The market leader in constitutional law casebooks, Constitutional Law and Politics, Fifth Edition, is a comprehensive text that presents excerpts and opinions from important Supreme Court cases and provides the background material necessary to understand the decisions and their historical significance. For the Fifth Edition, Professor O'Brien has refined the case introductions and headnotes, strengthened the pedagogical program, and added twenty-one new cases, including Bush v. Gore.
Customer Reviews:
NICE WORK IF YOU CAN SEE IT.......2007-02-23
Professor O'Brien must surely be making valuable contributions with his numerous works, and this one should have been most helpful to me. But he or his publisher have opted for pretty, pale grey print -- almost impossible for middle-aged eyes to read without strain. I had ordered five of his books from Amazon and reluctantly returned them all.
Book Description
Many important questions regarding the creation and adoption of the United States Constitution remain unresolved. Did slaveholdings or financial holdings significantly influence our Founding Fathers' stance on particular clauses or rules contained in the Constitution? Was there a division of support for the Constitution related to religious beliefs or ethnicity? Were founders from less commercial areas more likely to oppose the Constitution? To Form a More Perfect Union successfully answers these questions and offers an economic explanation for the behavior of our Founding Fathers during the nation's constitutional founding. In 1913, American historian Charles A. Beard controversially argued in his book An Economic Interpretation of the Constitution of the United States that the framers and ratifiers of the Constitution were less interested in furthering democratic principles than in advancing specific economic and financial interests. Beard's thesis eventually emerged as the standard historical interpretation and remained so until the 1950s. Since then, many constitutional and historical scholars have questioned an economic interpretation of the Constitution as being too narrow or too calculating, believing the great principles and political philosophies that motivated the Founding Fathers to be worthier subjects of study. In this meticulously researched reexamination of the drafting and ratification of our nation's Constitution, Robert McGuire argues that Alexander Hamilton, James Madison, George Mason and the other Founding Fathers did act as much for economic motives as for abstract ideals. To Form a More Perfect Union offers compelling evidence showing that the economic, financial, and other interests of the founders can account for the specific design and adoption of our Constitution. This is the first book to provide modern evidence that substantiates many of the overall conclusions found in Charles Beard's An Economic Interpretation while challenging and overturning other of Beard's specific findings. To Form a More Perfect Union presents an entirely new approach to the study of the shaping of the U.S. Constitution. Through the application of economic thinking and rigorous statistical techniques, as well as the processing of vast amounts of data on the economic interests and personal characteristics of the Founding Fathers, McGuire convincingly demonstrates that an economic interpretation of the Constitution is valid. Radically challenging the prevailing views of most historians, political scientists, and legal scholars, To Form a More Perfect Union provides a wealth of new findings about the Founding Fathers' constitutional choices and sheds new light on the motivations behind the design and adoption of the United States Constitution.
Customer Reviews:
A Compelling & Thorough Look at the Economic Interpretation.......2004-01-31
"In To Form a More Perfect Union, Robert A. McGuire attempts to provide the first solid modern analysis to quantify the impact of the personal economic interests of the Founding Fathers on the structure and content of the U.S. Constitution. Readers familiar with the literature in this area will immediately, and correctly, associate this book with Charles A. Beard's Economic Interpretation of the Constitution of the United States (New York: Macmillan, [1913] 1935). In that book, Beard concludes that the delegates' personal interests shaped their behavior with respect to the drafting and the ratification of the U.S. Constitution. His hypothesis was generally accepted until the 1950s, when most scholars began to question the analysis. An onslaught of counterevidence came during the 1950s and early 1960s, and today most academics believe that Beard's original interpretation was too narrow and that the general political philosophies of the Founding Fathers had greater importance in determining the nature and contents of the U.S. Constitution.
"McGuire essentially resurrects Beard's hypothesis and offers substantial evidence in favor of the view that the Founding Fathers' personal interests had a significant influence on the process of constitutional design and ratification. In light of the substantial body of empirical evidence this book provides, it is likely to bring the personal interest view back into widespread acceptance among academics. Although McGuire draws some of the analysis presented in the book from his previously published journal articles, at least half of what he offers is new and original. What makes the book so compelling is the use of today's significantly better empirical methodology to analyze data, in contrast to the techniques available during the 1950s, when the counterevidence to Beard's hypothesis was presented.
"Readers searching for a middle ground in the debate over whether personal self-interest shaped the U.S. Constitution will find refuge in this book. McGuire repeatedly makes clear that these personal interests were relevant at the margin in the Founding Fathers' decision calculus and that many other factors (such as general political philosophy) influenced these individuals' overall behavior. Among the most compelling findings: (1) personal interests played a bigger role in the specific content of the U.S. Constitution than in the document's overall design; and (2) the framers' debt holdings and slave ownership and the degree of commercialization in their local communities are significantly correlated with their observed behavior and, hence, with the content of the constitution they produced....
"One of the book's strengths is the amount of underlying background data and statistics provided. For example, McGuire includes tables that show not only each individual delegate's vote on an issue (the data used for the dependent variable), but also the predicted probability of a yes vote for that delegate from the estimated logistic regression model. As anyone who has estimated a logistic regression model knows, it is possible for these models to fit well overall but still do a poor job of predicting individual votes. Throughout the book, however, McGuire provides the evidence necessary to comfort readers worried about such potential problems. The book's main weakness is that at times it becomes rather lengthy and dull, but this aspect is simply a cost of being thorough, which is necessary in this case because of the controversial nature of the theory being tested.
"For the great number of readers who are likely to use the results of the book as a single-sentence footnote or reference in their own research, the eleven-page prologue provides all of the background and summary information necessary to make an informed citation of the work. The remaining three hundred or so pages merely fill in the sufficient details to support these conclusions. In that sense, the book reminds me somewhat of Bjorn Lomborg's Skeptical Environmentalist (Cambridge: Cambridge University Press, 2001).
"Had I been a reviewer for the book prior to its publication, the only suggestion I might have offered to improve it would have been for the author to include a fuller discussion of the debate surrounding the adequacy and structure of the document that preceded the U.S. Constitution, the Articles of Confederation.... Had McGuire presented this discussion, he would have provided a fitting framework in which to view the Founding Fathers' choices as marginal institutional changes relative to the existing constitutional order.
"To Form a More Perfect Union undoubtedly will elicit additional research in this highly debated area of constitutional research. Future research will benefit from the 122 pages of raw data and empirical results provided as appendix material. McGuire's book most likely will meet with a better initial acceptance than Beard's book received (it was banned from high school libraries in Seattle and condemned by President Taft and by the president of Beard's own university).
"One important implication of McGuire's book is that the condition of a Rawlsian `veil of ignorance,' putatively necessary to produce a `just' social contract, is not and cannot be satisfied in reality. Any constitution or social contract will be shaped by its designers' individual self-interests. Modern public-choice scholars who favor theories based on the premise of methodological individualism will find comforting reassurance as they read To Form a More Perfect Union."
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Excerpted from a review by Russell S. Sobel in "The Independent Review," Winter 2004.
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Cruel and Unusual Punishment: Rights and Liberties under the Law (America's Freedoms)
Joseph Melusky , and
Keith Pesto
Manufacturer: ABC-CLIO
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ASIN: 1576076024
Release Date: 2003-02-21 |
Book Description
This famous study — one of the most influential in the area of American economic history — brought a halt to Americans' uncritical reverence for their country's revolutionary past. Questioning the Founding Fathers' motivations in drafting the Constitution, it viewed the results as a product of economic self-interest. Perhaps the most controversial books of its time.
Customer Reviews:
Just because you're paranoid...........2006-05-05
A noted historian of the early twentieth century, Charles Beard was notorious for his non-traditional interpretations of economics as the driving force behind major historical events. In 1913, at the time of the original publication of this book, he was even considered to be a bit radical. Certainly, the main thrust of his monograph ruffled a few feathers, as it called into question the motives of our founding fathers, placing their feet firmly on mortal, fallible, self-interested grounds, as opposed to the lofty pedestals where they were usually enshrined.
Beard argued that although the delegates to the Convention had many diverse interests, they could actually be grouped into two main categories of economic self-interests: mercantile and land ownership. From a detailed analysis of their biographies, Beard identified a pattern that indicated an economic line of demarcation between Federalists and Anti-Federalists. Those with large property assets or investments in trade unanimously supported the fledgling Constitution, while its chief detractors were the debtors, that majority of new Americans who were among the "have-nots" and who placed more faith in the loose confines of the Articles of Confederation.
This book offers a compelling array of data, which the author himself refers to as a "long and arid survey' with the "nature of a catalogue". However, far from benumbing the mind of the reader, this use of simple exposition allows one to assess the proffered information and arrive on one's own at a conclusion that validates the author's thesis. Beard lists the material assets of each delegate, as well as their class status; not one was from a farming or mechanical class. Paired with evidence that many (including George Washington) were land speculators in the Northwest Territory, and that the implementation of the Articles of Confederation suppressed land values, a damning stain of greed and self-interest threatens to taint the motives behind the drafting of the Constitution.
Beard goes as far as to intimate that the creation of a constitutional government was in effect a "coup d'etat" in which a wealthy interested minority abused and exceeded the authority granted them by the government in order to create a legal document which would bolster their businesses and profits. Evidence is supplied that indicates delegates were restricted by property ownership, cash assets, and in some states by religion. Clearly, only a certain type of man was to be permitted to have a voice in the decision. When the debate opened up upon the quest for ratification, Beard offers anecdotal evidence of goon squads and thuggery to force votes into the Federalist camp. Clearly, this is a view of the nation's origins that goes against primary school heroic notions of 1787.
The most surprising thing about this book is that it was originally written in 1913. Charles Beard was often considered to be controversial amongst his fellow historians. Yet this monograph is shocking in that it is basically an accusation that the founding fathers indulged in a self-motivated and greedy overthrow of a government, which although weak and decentralized, was the preference of the downtrodden masses. He indicates that simply because future generations may have benefited from the decision s taken in 1787, the decisions were not necessarily just.
In an era where conspiracy theories abound and Americans are ever eager to point the finger of blame at any select few, this book seems to fit popular tastes. Yet it would be foolish to dismiss the evidence supplied in this text as pure conjecture or the patterns as easy coincidence. Even today this founding document can be used to interpret the rights of the individual as equal to the rights of a corporation; surely it must have had in its origins the seeds of economic self-interest. Based on the conclusions made apparent in this book, it is hard not to view the Constitution as an economic document, securing in cold verbiage the rights of the wealthy creditors, while incidentally providing for the protection of the debtors. Madison's noble sentiments in Federalist #10 ring hollow when taken in equal parts with Charles Beards Economic Interpretation of the Constitution of the United States.
A Good Place to Begin Thinking About What it Means to be an American.......2006-02-23
Jumping to the end of Charles Beard's book, his conclusions state the following:
i) The US constitution was enacted to protect the interests of: a) the moneyed classes (the rich), b) the bond and stock holding classes (the rich speculators), c) the manufacturing interests (rich capitalists), and trade and shipping interests (the rich capitalist speculators).
ii) The constitution was the result of an elite group of men representing the aforementioned interests.
iii) The constitutional convention held in Philadelphia was organized undemocratically by the aforementioned elite group of men to secure the aforementioned interests.
iv) Those not holding the aforementioned interests (the poor) were excluded from participation in the constitutional process.
v) Those participating in the Philadelphia convention personally benefited from the outcome of that convention (the constitution).
vi) The US constitution is a document protecting private property rights over that of a democratic people and/or its government.
vii) These assertions are on record as evidenced by the property and monetary interests of those who proposed and passed the US constitution.
viii) In the ratification of the US constitution, 3/4 of the qualified voters were excluded by some means or another, aiding the 1/4 who benefited from the passage of the constitution.
ix) The ratification of the US constitution was further narrowed down to where only 1/6 of the qualified voters participated in its passing.
x) Therefore, the majority of qualified voters did not participate in the ratification of the US constitution.
xi) This 1/6 who ratified the constitution were the same minority who held large holdings in money, bonds and stocks, manufacturing, and trade and shipping.
xii) The main societal divisions in the ratification of the US constitution were among classes cited in i) and the farming and debtor classes at that time.
xiii) The constitution was therefore not created by "the people," but by the those motivated by the monetary interests cited in i).
To see why Beard thought this you must read this book, which is a laundry list of those participating in the Philadelphia convention and the ratification process, and a catalogue of their documented monetary interests.
After reading Beard, then you can read the introduction by Forrest McDonald holding Beard's thesis up to the crucible of historical criticism.
After reading Beard and McDonald you can begin to reflect on the implications of Beard's materialist hypothesis and the host of corroborating and refuting philosophical considerations, then form your own conclusions, then repeat the cycle over and over.
This is probably a good departure point to begin examining your personal beliefs and expectations of what it means to be an American.
For Every Student of US History.......2005-11-04
Obviously, the top 500 reviewer Ryan Setliff has not read the book. His review stated
"_This book basically puts forward a theory that the founders just established the Constitution for their own personal economic gain._ This book is well-researched, but its premise is totally flawed. Moreover, it tries to portray all of the founding fathers as self-serving and looking out for their own economic interests."
Had Ryan read the book, he might have know that Charles himself says on page 73:
"The purpose of such an inquiry is not, of course, to show that the Constitution was made for the personal benefit of the members of the Convention." Beard explains, also on page 73, that he is trying to show, by researching the personal economic statuses of the members of the convention, that the members belonged to the "four [socioeconomic] groups... [that] were adversly affected by the government under the articles of Confederation, and that [the] economic motives [of those socioeconomic groups] were behind the movement for a recontstruction of the system..."
It is most unfortunate that seemingly educated people deride this book without having read it, and doubly so since it is such a valuable work, still accessible and readable today.
The real story, told by a brave man, an essential book for all,.......2005-08-20
Beard was a courageous man, not afraid to say the truth, not afraid to look into reality of American life and see the abuse of power, the denial of justice, and the real social interests at stake. This book establishes the real context of the constitution, displacing the usual hero worship of the "founders" as demigods and showing them as real men who served their class interests. Beard situates the constitutional convention in the great social struggles that went on in the period after the achievement of independence. Without such an understanding the struggle over the adoption of the constitution, and the role of the Bill of Rights are simply not understandable.
Post independence America was a place of economic crisis for the farmers, workers, and small tradesmen who had been the bulwark of the revolutionary struggle. Montarization of economic exchange in villages and towns where a large amount of the exchange had been based on barter, a massive inflation, and a growth of the power of the banks and other money lenders spread like a plague, particularly in the Northern States, especially New England. Farmers were losing their land; tradesmen were losing their shops; goods not made on the farms and villages became too expensive for many working people and farmers.
The power of the state governments, squarely in the hands of the merchants and planters, stood behind the seizure of the lands of farmers who could no longer pay the banks and merchants. Farmers and small tradesmen rose against this. Desperate farmers and their supporters shut down courts that met to authorize confiscation of farms. With no Bill of Rights, in Massachusetts set up kangaroo courts made up of merchants and bankers that made no attempt to be fair to the farmers. Newspapers and speakers who criticized the state government and the banks and big merchants were charged with treason.
Full-scale civil war broke out in Massachusetts, with the plebian rebels coming close--it is said only prevented by the delay of one detachment by a snowstorm--to seizing the national arsenal in Springfield. It was these threats to property that threatened the power of the wealthy and the order that had been established after the revolution. This is why the constitutional convention gathered, not some abstract interest in more ethereal and philosophical forms of government.
Whatever is said about divine motivations, the constitutional convention which gathered the wealthy and powerful, would have had to have been a bunch of insane dreamers, not to have had the interests of their wealth and power first in their minds in this situation. This Beard shows with abundant documentation.
Beard documents that this was by and large a gathering of the wealthy men of the country who had profited from the revolution and who had profited by the economic disaster farmers and tradesmen faced by buying up certificates for land in compensation for services to the revolution, many farmers and tradesmen had to sell in order to keep their own land. Beard indicates that the concern for a secure state that could safeguard these interests was the dominant question for constitutional convention. He also notes that the few delegates who were sympathetic to the popular struggle opposed the constitution. Others among the leaders of the American Revolution who opposed this trend stayed away.
Beard's book has been pilloried because it challenges the public myth about the constitution and the government that is needed to maintain the continued rule of the wealthy and powerful
The constitutional convention did not write a democratic constitution. There is no provision for national elections. There are only provisions for the state legislatures to select electors that would meet to select the president in what the constitutional convention thought would be another gathering of the wealthy and powerful.
The Bill of Rights was not part of the constitution they wrote or proposed. This was not an oversight, but because the authors of the constitution did not support these rights or democracy as it is understood today. As I mentioned above, in Massachusetts rather than a "jury of their peers," farmer rebels were tried by juries packed with merchants and bankers; rebels in Western farming communities like Springfield and Pittsfield were tried by juries from Boston. In states like Connecticut and Massachusetts, the Congregationalist church was an established church and membership in it was required to vote. Writers and speakers could be charged with treason for attacking the state governments.
Most people in the United States opposed the constitution that came out of the Philadelphia convention. Many cited as "founders" opposed it. The bill of rights was proposed as a compromise addition to safeguard the rights of the popular majority. Without it, the constitution would not have passed.
Even so, many provisions of the Bill of Rights were not actively enforced, some until the 20th Century. The establishment of religion continued in Connecticut and Massachusetts as states until 1820s and 1830s, and establishment of the Congregational churches by town government continued in many areas of New England until the late 19th and in a few places the early 20th century!!! Massachusetts's courts still charged and convicted newspapers for blasphemy in the 1840s.
Popular voting without property, religious, or other qualifications was not me insured in this constitution. This came only with the amendments others that followed the Civil War, which Beard famously termed The Second American Revolution.
Beard tells the real story here. For that, he was pilloried. Similarly, during and after WWII he documented, using congressional hearing testimony for the most part, how Roosevelt took the US into the Second World War. Again he was pilloried with new attacks generated against this book, even though this was written decades before.
We are lucky for a man like Beard who wasn't afraid to tell the truth, even when the truth clashed with myths that are propagated in the interests of the billionaires who run this society.
Classic Text.......2005-04-13
Charles Beard caused a minor scandal when this book was published in 1913. He argued that the Founding Fathers had foisted the Constitution on the country in order to protect their property interests in land and public securities. This was strong medicine 90 years ago when the public still thought of the Founders as demigods rather than conspiratorial politicians.
Despite its age, the book reads well and is refreshingly iconoclastic. Since rightwing politicians and jurists still talk as if the Constitution had a divine origin, Beard's message hasn't lost its relevance. However, there's no denying that his book is a one-sided lawyer's brief, which selects and presents only the evidence that supports its thesis while ignoring everything else. No one who has read The Federalist would even recognize Beard's description of it.
Modern readers who want a balanced and comprehensive history of the origins of the Constitution should look to books by Forrest MacDonald or other historians.
Book Description
A March of Liberty: A Constitutional History of the United States, 2/e, is a clearly written, comprehensive overview of American constitutional development. Covering the country's history from the founding of the English colonies up through the latest decisions of the Supreme Court, this two-volume work presents the most complete discussion of American constitutional history currently available. Reflecting the latest in contemporary scholarship, the authors successfully blend cases and court doctrines into the larger fabric of American political, economic, and social history. They discuss in detail the great cases handed down by the Supreme Court, showing how these cases played out in society and how constitutional growth parallels changes in American culture. In addition, this two-volume set examines lesser-known decisions that played important roles in affecting change, and also contains in-depth analyses of the intellects and personalities of the Supreme Court justices who made these influential decisions. This second edition of A March of Liberty addresses recent scholarship on race and gender, covers both constitutional and legal history, and examines federal, state, and private law. The text exemplifies the current trends in American constitutional history through its holistic approach of integrating the decisions of the state and lower federal courts with the decisions of the Supreme Court. Volume I covers the colonial period up through Reconstruction and explores central rulings on property law, religious freedom, slavery, and women's rights. It also examines the need for a governmental system of checks and balances, lesser-known rulings on land and water usage, and impeachment and treason trials. A March of Liberty, 2/e, features useful supplemental materials including the text of the Constitution, a chronological list of Supreme Court justices, and suggested further readings. Gracefully written and clearly explained, this popular two-volume set is indispensable for courses in American constitutional history and law.
Customer Reviews:
It's a textbook.......2007-02-13
As far as history textbooks are concerned, I like this one. Yes, it's dense, but it's dense subject matter. The book is a lot less dry than it could be. Yes, the book is biased, but that can lead to interesting class discussion (or just plain thought), especially if one reads other essays/books on the subjects.
I'm trying to imagine a better constitutional history textbook and I can't, though I will not claim to be an expert on history textbooks. At least this one gives plenty of information to understand the history that surrounds the Supreme Court cases. Everything's nice, connected, and easy to understand--if a bit dense.
Booooring!.......2005-09-05
Avoid this book! It will kill your interest in US History. It is a bad attempt at summarizing the events which shaped the Constitution. While it made a good point at stressing the importance of our "British Heritage", especially when it comes to the legal system in our country, the author brought in too much of his own bias (as another reviewer has pointed out). I think the accompanying text to this book, Documents of American Constitutional and Legal History, is better. It at least lets you draw your own conclusions from original texts.
A slightly skewed perspective.......2003-11-23
The completeness and comprehensiveness of this volume is commendable, however, there are some things that detract from its overall value as a text. Reading it, it is very easy to pick up the authors' blatant partisanship, with inumerable stabs at the current Presidential administration, and ideological interpretations of groups and viewpoints in history. This is dangerous, especially when used as a tool in colleges and universities. It is not the business of historians to tell students what to think about history; rather, it is their responsibility to present history in a non-biased form and allow debate and discussion, and permit students to draw their own conclusions. I find this is too often the case with modern history texts. If these discrepancies are repaired, it would be a fine text. But as I said, the text encompassed a vast amount of information, and was essentially complete in portraying the early republic.
Book Description
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett 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.
Barnett 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. He 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.
As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.
Customer Reviews:
innovative and interesting.......2007-04-03
I found this book very enjoyable as well as informative. I learned more from this book than I did from an enitre semester of constitutional law in law school. Barnett has a way of brillantly explaining a case, good and bad, like no one else could. He made me look at decisions, which I have always assumed were correct, in an entirely new way. For example, his anaylsis of McCulloh v. Maryland really demonstrated the flaws of Chief Justice Marshall's logic. His historical anaylsis is vivid, entertaining, and educational. However, I did find some flaws in his research. He doesn't present both sides of the issue. Espically concering the 9th Amendment, there is strong evidence for a multitude of meanings. Yet he only presents his own, and does not adequately expalin why he's is superior. His interpretation of the commerce clause suffers the same problem. He concludes, rather quickly, that commerece only includes economic actvities. The problem with this is it is directly contradicted by prominent constitutional scholar ahkil Amar. Amar argues that commerce is the more general relations between the enities stated in Art. 1 Clause 8. This interpretation expalins the power the federal government has over tribes. I do not see how Barnett's interpretation explain this power, especially since Barnett makes it very clear that he does not believe the federal government has inherent power. It's a major flaw in this otherwise brillant book. Finally, his "presumption of liberty" might be too drasitic of a change for the American public to take and compromise the crediabilty of the court. However, his arguement that his method would add to the court's crediabilty is fairly convicing. I would say that I like the book despite the flaws, but in truth, I like the book largely because of the flaws.
Yes Virginia, there is a constitution .......2006-08-30
In this excellent book, an academic page turner, Barnett resurrects and reconstructs the commerce, necessary and proper clause and the ninth amendment and the privileges and immunities clauses as meaningful, judicially enforceable restrictions on
governmental powers. Barnett takes rights seriously and points out that the Bill of Rights is merely the tip of an actually enacted iceberg of rights that the courts are bound by the constitution to enforce--but do not. Barnett calls on courts to do their duty by these clauses and points out that the refusal of courts, to meaningfully protect rights in the name of judicial restraint is anything but. Barnett exposes the narrowness of the current debate between so called judicial conservatives and judicial liberals by pointing out that all now subscribe to a much narrower definition of rights that the constitution actually provides. For Barnett much of importance in the constitution has simply been discarded by the courts because it gets in the way of the kind of government people now think they want. The great service of Barnett's book is that by showing what has been lost or actually deliberately thrown away he shows the way back if we choose to take it. The larger question is not only whether we should take rights as seriously as the framers but whether we should take written constitutions as seriously as they did as absolutely essential to the preservation of liberties.
Head & Shoulders above all other Constitutional Scholars.......2006-01-01
Having read most of the current batch of constitutional scholars, and while respectful of their opinions, I believe that none reach the level of Barnett's understanding of the Constitution and the importance his thesis is to all Americans if we want to protect our freedoms from those internally who would deny we even possess rights as individuals.
Barnett starts off by providing a strong, though subjective, philospohical basis for the legitimacy of government power over citizens claiming they are truly free. Because this is the only subjective topic reviewed in the book, I've been striving since he published this book to find evidence that rationally or empirically defeats his thesis, I've found none nor have I found anyone with a superior thesis, which is, paraphrased: Legitimate government power over a free populace acheives legitimate consent only as long as its power protects the greater rights of its populace over the lesser rights of others. For example, police power protecting citizens' property against those that would steal other's property.
Barnett goes on to make a bullet-proof case that original meaning is the only legitimate interpretative approach and using that approach, what does the constitution mean, especially in terms of what rights we reserve and what powers to gov't have we granted.
Constitutionalist theorists like Bork who claim originalist roots that claim we need to use framer intent as filtered by him because the framers didn't provide ample evidence of their meaning is smashed by Barnett. Not only does Barnett provide convincing empirical evidence of the original meaning of the Constitution and many of its important principles and clauses; Barnett even provides ample evidence of the meaning as interpreted by the State Ratifying committees and the understanding by the populace as expressed in the newspapers of the day. I won't divulge here what Barnett finds since i highly recommend purchasing the book and finding out for yourselves.
While reviewing the original meaning of the constitution, Barnett provides a surprising twist, he provides very few modern cases that compare the court's rulings to the original meaning. For me at least, that provided me with little chance to stereotype Barnett into an ideological camp. I found this initially frustrating because it forced me during the reading of this section of the book to spend more thinking time understanding his points, but at the end of this section, I was rewarded by embracing the concepts he promotes on their merit by not allowing me to filter his arguments through my own ideological prism.
The end of the book does have Barnett reviewing many modern consitutional issues and applying the original meaning as found by Barnett against these cases. The reader will be surpised when media pundits label Barnett as a conservative scholar, as he often is, when in fact his thesis easily destroys any justicification social conservatives have to leverage government power over the rights we reserve as free people.
The reader will also be surprised as to why Democrats don't embrace these concepts more since their political platform to protect individual rights is so well supported by Barnett's findings when studying our founding. I can only speculate that by embracing Barnett's positions, the Democrats would have to fight to increase government power through constitututional amendments to legitimatize regulatory power to protect the environment or business beyond commerce. My only criticism of his book is that he didn't address the Roe and Casey rulings, where I would be most interested in understanding his position - I can only speculate that he resisted commenting in order to not be stereotyped and labeled.
In summary, if you buy one book to better understand the current culture war over the legitimate rights of citizens relative to the granted power we've extended government, this is the book. If you are a dedicated student of constitutional law, than I guarantee this book will become of the most valuable books in your collection - Barnett is that good.
Splendid.......2005-09-12
"Imagine holding up a copy of the Constitution and seeing empty holes in the parchment where these passages once appeared-or seeing ink blots over them."
In the preface, Professor Barnett describes his disillusionment with the United States Constitution, how it drove him away from the field of constitutional law, and then describes how he was brought back. The early chapters are an attempt to bring the reader back with him. Borrowing the arguments of Lysander Spooner, a 19th century abolitionist, he proceeds to prove the Constitution illegitimate on traditional grounds and then builds it up again on a new foundation, the "Presumption of Liberty." The presumption of liberty is the antipode of the now-favored method of judicial review, the presumption of constitutionality (in short, when challenging legislation, the burden lies on the individual to prove that legislation is unconstitutional, and not on the government to prove that it is not). Drawing on theories of natural rights, he proposes a method of constitutional "legitimation."
After this prelude, Barnett goes on to concretely defend originalism (specifically, "original meaning" originalism, as opposed to "original intent": a dichotomy well explicated) as an attractive constitutional theory of interpretation, against critics ranging from Robert Bork to New Deal liberals. The groundwork laid, the major work of the book commences: discovery of the original meaning of the Constitution, or at least many of its pertinent parts, including most prominently the (forgotten) Ninth Amendment, the Fourteenth Amendment, the Interstate Commerce Clause, and the Necessary and Proper Clause. The conclusion will be unsurprising to many: the original meaning of the Constitution has been grossly distorted. In his words:
"For some political agendas to advance, the heart of the Constitution must be excised, and so it has been, clause by inconvenient clause, until the Constitution has been distorted and lost."
Throughout, Barnett writes accessibly and lucidly. Even those parts of the book one would expect to be most dry--the analysis of constitutional clauses by usage of contemporary sources, including dictionaries, issues of The Federalist, and period newspapers--vibrate. Despite the libertarian undercurrent, the book is never partisan: indeed, great pains seem to be taken to invite readers of all political stripes to come along. Only in the conclusion does one begin to sense the great weight of what's been written, and--in my case--feel the gratitude towards the author for writing such an interesting, excellent, and--certainly--heroic book.
Toward a jurisprudence of original meaning.......2005-03-05
What should we do with the Constitution? In this excellent work, Randy E. Barnett proposes a predominantly libertarian answer to that question. (I say 'predominantly' because Barnett is quite clear-eyed and honest in his recognition of the handful of nonlibertarian elements in the document.)
Barnett initially addresses the question why we should consider ourselves bound by the Constitution at all, since the idea that it really speaks for every single one of 'the People' for all time is clearly a fiction. His answer will surprise everyone but libertarians: we should regard ourselves as bound by the Constitution because, insofar as, and so long as it is used to enact those laws that preserve and protect our liberty rights.
On this foundation Barnett develops a theory of Constitutional interpretation based on 'original meaning' (carefully distinguished from 'original intent' as originally defended by Bork and Meese). The heart of his thesis is that, wherever possible, we ought to prefer a reading that comports with the public understanding of the Constitution at the time it was ratified (which may not, of course, be a precise match for the 'intent' of the framers). He has James Madison on his side here. (Of course a similar argument applies to the various Amendments as of the times _they_ were ratified, so Barnett's 'original meaning' isn't a haven for those who want to undo the Fourteenth Amendment.)
Barnett then applies this interpretive approach to the judicial power in order to demonstrate that judicial review -- specifically including the power to nullify unconstitutional laws -- was part of the original understanding of this power. This chapter is quite well argued and, in my view, altogether conclusive on the issue. It's also, unfortunately, quite necessary, because there are people calling themselves 'conservatives' who seem to think judicial review was conjured out of the ether in _Marbury v. Madison_ (1803). (Mark Levin's recent _Men In Black_, for example, is hopelessly muddled on this issue, as Levin fails to distinguish carefully among judicial review, a judicial veto, and judicial supremacy. See my review of that book for further criticism.)
Having established that judicial review is part of the original Constitutional scheme (and part of the Constitutional meaning of 'due process'), Barnett then applies his original-meaning methodology to determine just how the Supreme Court ought to interpret various portions of the Constitution in reviewing the legitimacy of legislative enactments. The Necessary and Proper Clause turns out, on his analysis, to delegate to Congress only the power to enact legislation strictly requisite for the exercise of its enumerated powers ('necessary'), and only to the extent that such legislation does not infringe liberty rights ('proper'). The Fourteenth Amendment's Privileges or Immunities Clause turns out to bind state governments to the entire Bill of Rights. (See Michael Kent Curtis's excellent _No State Shall Abridge_ for a fine analysis that reaches the same conclusion.) And the Ninth Amendment turns out to protect all liberty rights of any kind, whether enumerated or not.
Barnett is then able to arrive, in consequence, at his central thesis: the twentieth century's 'presumption of constitutionality' should be reversed, and the Supreme Court should conduct judicial review on the basis of a 'presumption of liberty'. Instead, that is, of presuming that (say) a piece of challenged Congressional legislation is Constitutional unless an opposing party can show otherwise, the initial burden should be on the government to show why such legislation _is_ 'necessary and proper'.
Barnett then applies his analysis to the Commerce Clause and the police powers of the states, concluding that the scope of each is far narrower than recent jurisprudence allows. A closing chapter looks at a few 'hard cases' (though hardly, of course, an exhaustive list).
The analysis is excellent throughout. As he did in _The Structure of Liberty_, Barnett has thrown down a gauntlet here and I can't imagine what a successful response might look like.
There are minor points I could nitpick. (For example, Rep. John Bingham, drafter of the original version of the Fourteenth Amendment, was from Ohio, not -- as Barnett says on p. 193 -- New York.) The index could also use a lot of work; a random spot-check turns up a number of problems. (For example, a reference to Richard Epstein that actually appears on p. ix is indexed for page xi; Michael Kent Curtis appears on pages 61, 62, 108, 115, 203, and 348 but is indexed only for p. 61; some references -- e.g. to Henry Veatch, whose excellent _For An Ontology of Morals_ Barnett cites on p. 83 -- aren't indexed at all; and a reference to Murray Rothbard on p. 346 is indexed for p. 246. And yes, 'anal-retentive' _does_ take a hyphen; why do you ask?)
More seriously, perhaps, I'd have liked to see a bit more analysis of 'hard cases' that are controversial even among those inclined toward libertarianism. Even on Barnett's understanding of the Ninth and Fourteenth Amendments (which I think is utterly correct), it's not clear that abortion falls within the scope of retained liberty rights (as the interests of another party are pretty obviously adversely affected). Even here, though, Barnett's analysis is of tremendous help in posing the question correctly, whatever one's views on the answer.
It's a brilliant book from start to finish and it's probably the single best volume of Constitutional legal theory currently available; naturally there's lots of really cool stuff in it that I haven't even begun to summarize here. It's also a wonderful antidote to the spate of recent 'conservative' Court-bashing literature that persistently misidentifies the problems and tosses out the Constitutional baby with the bathwater.
If the Constitution is of interest to you, don't miss this one. By the way, Barnett is also the coauthor of a brilliant _amicus curie_ brief submitted by the Institute for Justice in _Lawrence v. Texas_; look that up too.
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