In Reply to Randy E. Barnett’s “Seinfeld Hearings”

July 14, 2009

Many thanks to Caffeinated Thoughts author Shane Vander Hart for calling my attention to an interesting piece by Randy E. Barnett on the recent Senate Judiciary Committee’s confirmation hearing for Sonia Sotomayor.  I was dismayed to see an article in such a publication as the Wall Street Journal miss the mark so often with respect to some very basic issues Constitutional Law, so I wrote a response to some of the questions Mr. Barnett raised.

Mr. Barnett feels some of the following questions ought to be asked of the prospective Supreme Court Justice:

Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.)

I’m afraid Mr. Barnett is mistaken here. Nowhere in the text of the Constitution is there a mention of “an individual right to arms,” rather the Second Amendment protects a collective right to keep and bear arms, to wit: “the right of the people to keep and bear Arms shall not be infringed.”  Moreover, the recent precedent set by certain activists justices in D.C. v. Heller appears to have broadened this right significantly.

Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why?

I certainly hope the Senate Judiciary Committee does not waste Mrs. Sotomayor’s valuable time in asking this question.  Simply put, yes the Fourteenth Amendment incorporates the Bill of Rights.

Does the Ninth Amendment protect judicially enforceable unenumerated rights?

As to the function of the Ninth Amendment, this can be a confusing subject, however upon some research I found a quote from Prof. Lawrence Tribe that sums up Mr. Barnett’s mistake quite nicely: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”  So to ask whether the Ninth Amendment protects anything is really a logically incoherent question.

Does the Necessary and Proper Clause delegate unlimited discretion to Congress?

The “Necessary and Proper Clause,” Art. I Sec 8 Clause 18, does indeed delegate sweeping authority to the Congress, but it is by no means “unlimited,” if for no other reason than that the Bills of Rights and the Constitution itself serve to limit that power.

Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

The “so-called Spending Power” (and it is indeed called so by lawyers and judges) is found in Art. I Sec. 8 Clause 1 of the Constitution, though much like the Dormant Commerce Clause that permits regulation of interstate commerce, it not stated explicitly, rather it is implied by the power to collect taxes. It is essentially the other side of the coin, if Congress can lay taxes, they must implicitly have the power to spend the revenues so collected. And indeed there are severe limitations, see: Article I, Section 9, Clause 7. This is particularly curious of Mr. Barnett’s concerns, since the questions that are usually associated with the Spending Power is not whether it exists but whether the Congress may place conditions on its spending to effectively bribe states into adopting legislation, as was done during the Reagan administration, withholding federal highway funds from states that did not raise the drinking age to 21.

Even asking whether “We the People” in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

As to the Dred Scott case, there is really only one acceptable opinion from a Supreme Court nominee with respect to this decision: that that case was wrongly decided.

Perhaps the Wall Street Journal ought to do some better fact-checking in the future, and I certainly hope that none of the Senators on the Judiciary Committee are silly enough to take Mr. Barnett’s advice and waste time with these questions.


4 Responses to “In Reply to Randy E. Barnett’s “Seinfeld Hearings””

  1. Argon said

    “Perhaps the Wall Street Journal ought to do some better fact-checking in the future…”

    I don’t think the Wall Street Journal fact-checks articles on the Opinion page. If they did, it could save a couple pages of print each day…

  2. Argon said

    “Perhaps the Wall Street Journal ought to do some better fact-checking in the future…”

    I don’t think the Wall Street Journal fact-checks articles on the Opinion page. If they did, it could save a couple pages of print each day…
    Ooops, should have added good post! Waiting for your next one!

  3. A. J. B. said

    And thank you for your comment, I look forward to your next one as well. Also I enjoy your blog, I am a bit of a numismatist myself!

  4. Lisa Graas said

    Thanks for your comment on my post. I’ve provided an update and a link back to your commentary here.



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