Norton's Losing Liberty Judicially now online

jbone at jbone at
Sat Nov 8 21:26:12 PST 2003

In the spirit of the previous op-ed about judicial discretion re: 
pregnancy, here we go --- the broader topic.  Necessity:  a judiciary 
that makes constitutional decisions instead of ones based on individual 
liberty or partisan politics.  Threat:  legislating from the bench;  
threat demonstrated by both far-right and far-left appointees.  
Response:  appoint strict constitutionalists rather than discretionary 
moral authoritarians or partisans...


Norton's Losing Liberty Judicially now online

One of the few voices for constitutionalism during the early and middle
20th century was Thomas James Norton, a lawyer who mainly practiced in
the Chicago area. While it was fashionable to make major departures from
original understanding, he held firm for strict construction and the
rule of law.

He wrote a number of books. His first major work was /The Constitution
of the United States: Its Sources and its Application/. The work for
which he may be best known was /Undermining the Constitution/, published
in 1950, online at . But
we have now rendered one of his earlier works, /Losing Liberty
Judicially/, written in 1928,
. Written during the height of Prohibition, it examines the
constitutional issues involved, such as his position that the power to
regulate did not imply the power to prohibit, or to impose criminal
penalties, and his critique of the case of Mugler v. Kansas, 123 U.S.
623 (1887), which sustained a state prohibition of alcohol, but also
defined state police powers in a way that Norton found constitutionally
objectionable. He traces a line of Supreme Court precedents that drifted
away from original understanding, and attacked the practice of stare
decisis that treats recent precedents as more authoritative than
original text. His arguments are still relevant today, adapted to the
"war on drugs".

This book captures a moment in constitutional history on the eve of the
Depression, the New Deal, and the "Switch in Time that Saved Nine".
Through Norton's analysis we can see that the groundwork for the "New
Deal Revolution" was actually laid years before. For legal historians it
provides insight into how constitutional thought was evolving during
that critical period, and how few were the voices for fidelity to the

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