My use of the term "libertarian presumption" should not be confused with today's libertarian doctrine. It simply means that a person claiming to have official authority may exercise only delegated powers, that delegations of powers are strictly interpreted, that, with respect to government, any person has an "immunity" to do whatever there is no delegated power to disable legislatively, and that such immunities are to be interpreted broadly. In other words, when in doubt, the presumption is that a power has not been delegated, and that leaves an immunity to do anything there is no power to restrict. That can be seen in the history of the writs of quo warranto and habeas corpus, of documenting all kinds of official authority with various instruments, such as writs, letters, etc., of challenging anyone who doesn't bear such a document, and in the presumption of innocence, in the requirement for a unanimous jury verdict, the burden of proof on the plaintiff, etc. The summary of the principle lies in the Ninth and Tenth Amendments, properly understood as restatements of each other.
Eugene has complained about lack of cites on such points, but doesn't like us to cite entire treatises or long works, such as the ones I have edited and published on my web site. Unfortunately, the Founders did not always reduce their key ideas to pithy passages that lend themselves to being quoted. Some of their ideas simply require a lot of reading of their works, and of the works they read that most influenced them. There are not always easy ways to get into their heads without a lot of reading.
And as the editor of the digital editions of most of the more important primary sources of constitutional history, law and government, I have done a lot of reading. Hopefully, now that I am making it available online, indexed by search engines, it will be a lot easier for future generations of scholars to find and trace the key ideas expounded. It is likely that from now on, most if not all of the publications of most of these works will be copies of mine, except for a few facsimile editions.
Clayton E. Cramer wrote:
I'm not sure that I see a libertarian presumption on the part of the Founders. This is one of the great disputes about this period: should the civic republicanism sentiment or the individualist/libertarian sentiment be regarded as the presumption?
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