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The Presumption of Liberty: Protecting Rights without Listing Them

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever ... More

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.Less

Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The ... More

This chapter examines the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment in order to determine what stance federal courts should take toward state laws. The original Constitution contained several explicit restrictions on state power. In the early years of the Republic, federal courts actively scrutinized state enactments to ensure they did not violate these expressed prohibitions, especially the Contracts Clause. When it came to legislation not implicating these prohibitions, however, the courts deferred to states in their exercise of their police power. The chapter first considers what the term “privileges or immunities” encompasses before discussing the Supreme Court decision in the so-called Slaughter-House Cases, which set aside the original meaning of the Privileges or Immunities Clause. It then looks at the Due Process Clauses and shows that the due process of law includes judicial review.Less

Holland as a Body Politic, I: The Habsburg Era, to 1567

James D. Tracy

in The Founding of the Dutch Republic: War, Finance, and Politics in Holland, 1572-1588

Was Holland a mere collection of towns? Or was it a body politic? Clearly it was both. Towns were divided not just by local rivalries but by repeated clashes over the inland waterway: while cities ... More

Was Holland a mere collection of towns? Or was it a body politic? Clearly it was both. Towns were divided not just by local rivalries but by repeated clashes over the inland waterway: while cities tied to decaying industries (Leiden, Gouda) clung to the traditional route, those profiting from the growth of maritime trade (Amsterdam, Rotterdam) incessantly cut new channels. Yet outside forces pushed the towns to make common cause. Holland's vital Baltic trade was threatened by the Hanseatic League (Lübeck), supported by the populous county of Flanders. Attacks from the duchy of Guelders, a French ally, gave all of Holland a common foe. Finally, the government's anti‐heresy campaign, setting aside cherished legal privileges, roused universal opposition, as if all the provinces made up a single country. As iconoclast rioters moved from town to town and province to province (1566), the government faced its worst crisis.Less

Introduction

John Finlay

in The Community of the College of Justice: Edinburgh and the Court of Session, 1687 –1808

This chapter sets out the composition of the College of Justice and the privileges held by its members. It also examines the ways in which the College formed a community and explores what that means.

Making concessions

Kriston R. Rennie

in Freedom and protection: Monastic exemption in France, c. 590-c. 1100

The law of monastic exemption is seldom viewed through an early medieval lens. Overcoming this historiographical problem, this chapter defines the character and growth of monastic exemption in a ... More

The law of monastic exemption is seldom viewed through an early medieval lens. Overcoming this historiographical problem, this chapter defines the character and growth of monastic exemption in a period comparatively lacking in legal expression and rhetoric. It examines how it operated, how it was defined, and what it meant to contemporaries. In what ways did its early practice shape later canon law? What were the precedents which framed later legal developments? To advance our understanding further, the technical form of exemption is stripped down to its constitutive elements. This methodological approach offers a richer understanding of monastic exemption in the early Middle Ages, in turn revealing its inherent value to the papacy in making concessions to the law over many subsequent centuries.Less

The House of Commons: the slow erosion of self-regulation

David Hine and Gillian Peele

in The regulation of standards in British public life: Doing the right thing?

This chapter analyses the process by which, in the 1990s, the House of Commons reformed its arrangements for regulating standards. The chapter examines the new machinery including the Parliamentary ... More

This chapter analyses the process by which, in the 1990s, the House of Commons reformed its arrangements for regulating standards. The chapter examines the new machinery including the Parliamentary Commissioner for Standards, a new Standards and Privileges Committee and a new Code of Conduct. Though an improvement on the old system, there were still weaknesses especially in the lack of independence of the Parliamentary Standards Commissioner. MPs tended to see themselves as ethically accountable mainly to their own voters, and there were few efforts to promulgate values through systematic ethical induction processes. The expenses scandal prompted further more radical change in the system.Less

The House of Lords and reluctant reform

David Hine and Gillian Peele

in The regulation of standards in British public life: Doing the right thing?

This chapter shows how the House of Lords was initially reluctant to follow the House of Commons in strengthening its regulatory machinery. One constraint was the absence of sanctions for misconduct ... More

This chapter shows how the House of Lords was initially reluctant to follow the House of Commons in strengthening its regulatory machinery. One constraint was the absence of sanctions for misconduct but peers generally preferred to rely on an honour system. Gradually opinion shifted and more formal machinery was introduced. The chapter assesses the reforms and analyses the extent to which the House of Lords remains vulnerable to abuse.Less

"Of Consequence to the Service:" The Rationale behind Cartographic Surveys in Early Eighteenth-Century Newfoundland

Olaf U. Janzen

in War and Trade in Eighteenth-Century Newfoundland

This chapter examines two cartographic surveys carried out during the eighteenth century on the southern coast of Newfoundland, in order to determine their purpose. It seeks to prove that the ... More

This chapter examines two cartographic surveys carried out during the eighteenth century on the southern coast of Newfoundland, in order to determine their purpose. It seeks to prove that the rationale was not, as stated, for the benefit of trade and commerce, but instead a question of sovereignty and a response to the shift from French to British rule due to the Treaty of Utrecht. It places the sovereignty struggle into historical context, then explains how it affected activity on the Newfoundland fishery. It analyses the treaty and explores how French fishermen were reluctant to give up their lucrative fishing territory. It then analyses the surveys themselves, and concludes that these early surveyance efforts demonstrate the way British maritime merchants became involved in asserting British to serve their own commercial needs.Less

The Slaughter-House Cases

Lackland H. Bloom

in Do Great Cases Make Bad Law?

The Slaughterhouse Cases provided the Court with its first opportunity to interpret the recently ratified Fourteenth Amendment. Although the case did not attract the type of public attention ... More

The Slaughterhouse Cases provided the Court with its first opportunity to interpret the recently ratified Fourteenth Amendment. Although the case did not attract the type of public attention characteristic of great cases, the justices clearly understood that they were deciding a case of monumental importance. Writing for the majority, Justice Miller rejected the contention that the Privileges or Immunities Clause of the Fourteenth Amendment protected the right to pursue a common calling. Justice Field dissenting disagreed vigorously. The chapter explains how the very momentousness of the case prompted the majority to minimize the Privileges or Immunities Clause which had been intended to be the very core of civil rights protection. It also traces the significant doctrinal impact of the case, which though heavily criticized, remains a solid precedent.Less