By: Wes Robinson
On September 26, 2011 Georgia Political Review’s Wes Robinson had the chance to sit down with the Libertarian Party’s 2008 nominee for President of the United States and former U.S. Congressman, Mr. Bob Barr. Congressman Barr represented Georgia’s seventh congressional district from 1995 to 2003. In congress, Bob Barr served as a senior member of the Judiciary Committee and as a member of the Committee on Financial Services. Prior to serving in the U.S. Congress, Mr. Barr served as an official for the CIA and was appointed by President Ronald Reagan as a U.S. Attorney. Mr. Barr is now President and CEO of Liberty Strategies, LLC, a public policy consulting firm. In honor of Constitution Week (September 17-23) Wes discussed fundamental rights and constitutional interpretation with the noted libertarian.
Since we just finished up with Constitution Week, what is your definition of a fundamental right, for which the government protects?
A fundamental right has nothing to do with the constitution. A fundamental right are those things we inherit from our creator as human beings. Referring to life, liberty, and the pursuit of happiness, for example, are fundamental rights. The right to protect oneself is a fundamental right. The right to be free to associate with those people you wouldn’t associate with in terms of establishing a contractual relationship is a fundamental right. The right to travel from point A to point B; these are fundamental rights that, in my view were intended to be protected, for example, against either federal action or state action by the constitution and many provisions in the Bill of Rights. The Bill of Rights in the constitution, the constitution was supposed to define the government and what it could do and what couldn’t do and to apportion the specific responsibilities among the three branches. The Bill of Rights were placed there expressly to limit government, including limitations on government’s power to infringe, limit, or curtail fundamental rights. We’ve done a pretty poor job of it over the decades, of course.
Do you think policy makers draw certain principles or rights from sources outside the text of the constitution, such as the Declaration of Independence, or any of those other documents. Do you think those are legitimate sources?
Sure, it would be completely unrealistic to limit government and its exercise of power in those activities which it engages, only to those things that are expressly noted in the Constitution. There has to be a certain level of flexibility built into it. For example, that’s why we have the necessary and proper clause in the constitution. But, what’s been lost over the decades is the notion that ours is a government of limited powers. So, you have courts that from time to time say, well as long as the government does something that helps the general welfare, that’s OK. Or as the government taxes, if it taxes everybody, it’s OK. Or whatever government decides is necessary and proper, is OK. None of those interpretations of the constitution are OK. They are all wrong. The necessary and proper clause simply says that there has to be a degree of flexibility when the government carries out one of it’s express or clearly defined powers, it’s not an affirmative grant of power, which is the way a lot of people think about it nowadays. The same as the General Welfare clause, it’s not an affirmative grant of power.
So do you think that each clause of the Constitution needs to be looked at individually and how they explicitly relate to one another, or is there rather an overarching theme to the Constitution?
Well there certainly is an overarching theme that ours is a government with limited powers and unless power is expressly or necessarily implied to the federal government, the government does not have it. That’s the overarching theme, the overarching principle. The different clauses have to be read the way the framers intended them to and if you have, for example, in article I section VIV, which enumerates powers to the legislative branch, you can’t just pick and choose a particular clause, you have to look at the way that entire—it’s one long sentence—is constructed. You can’t look at each one of those in isolation. That’s what the courts sometimes do, they’ll say, “well we see here the government can do something in the general welfare, well we’re going to pull that clause out, and say whatever the government wants to do as long as it’s in the general welfare is OK”, and that’s nonsense. The entire clause in that article 1 section 8 of the constitution has to be read together, and it says what those things that congress can do and enumerates certain things that it can do; limited by making sure that they are in the general welfare and that the actions the government takes to implement them are indeed necessary and proper to carry out those enumerated powers.
So then you don’t think there is any overarching theme of preservation, or liberty, or equality found in the Constitution, that those are rather separate American values.
Well they’re fundamental values that are incorporated in the constitution. The constitution is intended to protect those, absolutely.
Do you think politicians cherry-pick from the Constitution? And if they do, do you see it more in rhetoric or do you actually see it in policy-making as well?
You see it in both—in courts also—cherry-pick the particular clauses they want in the constitution. Lot of people do it; prominent members of congress, presidents, members of administrations, and courts as well. It’s very easy to do, because that way you can justify almost anything that you want to do by finding some clause that you can interpret so that what you want to fits into it.
When you said the courts, were you referring to Living Constitutionalists in the Supreme Court, like a Thurgood Marshall, or were you thinking more of state or lower court?
No, I’m talking primarily about Federal Courts and interpreting the US Constitution. Back during the beginning of the late 1930s, for example, with the New Deal and many of the judges that were in power back in the 1930s and 1940s. Charles Evans Hughes, for example, very, very well known Chief Justice wrote, to me, some horrendous opinions because they greatly expanded government power by, as you indicated, cherry-picking and just picking out particular clauses and then fashioning entire justifications for government programs around them. But it is continuing even today, as well. Another problem is the Supreme Court and the Federal Courts are often overly deferential to the Congress. They say, basically, “well if Congress decided it, we have to presume they had a good reason for it.” Which is nonsense, so they allow pretty much whatever congress decides. That’s not the way the system was intended to operate.
Do you see a value in precedence, in Supreme Court rulings, for instance? They may make a ruling based largely on precedence, and may not come directly from the Constitution. So do you see a value in precedence still, or are you looking more directly at the Constitution, and only from the Constitution when it comes to these decisions?
Ultimately, when push comes to shove, one ought to look at the Constitution. The Constitution is the foundation of our republic. It is the foundation of government and our society. And precedent is important so you have some degree of certainty. So that people know that if they enter into a contract, for example, that if they enter into a contract because there are certain cases that indicate that the contract will be enforceable end enforced by the courts—that’s important. Otherwise, you’d be in a situation—I was in Haiti, a couple of weeks ago, where you have no precedent. You have no certainty. Therefore, nobody wants to enter into a contact and nobody wants to invest in the country because of that. So, yes, it is important to have certainty, and that comes from consistency and precedent in your court system. But that does not mean that simply because something is a precedent that it is a proper interpretation of the Constitution. There have been some very bad, bad cases. If you go back and look at a case called the Slaughterhouse Cases back in the early 1870s, a very, very bad opinion, in my view, because it severely limited what ought to be considered fundamental privileges or immunities to citizenship. Yet, because of precedent, it has been used by Supreme Court justices for one hundred and thirty five years, or whatever, to deny protection to certain, what clearly in my view, are fundamental rights, such as the right to keep and bear arms.
We have one final question; people who see this will largely be Political Science or International Affairs students. What would you say to someone looking to get into politics as a career?
Do it, but do it for the right reasons. Do it because you love this country, you want to improve this country, you want to open up the political system, and you want to get us away from politics-as-usual—which is way too parochial and way too oriented toward favors from the Federal Government.
