Three Important Lessons I Learned from Georgetown Professor Randy Barnett

By Alan W. Cohen

The one thing I learned while I was in college was that scholars are pretty much set in their ways, and are rarely open to new ideas, especially if those new ideas challenge their entire way of thinking. At 57, I was pretty set in my ways. I had attended a top journalism and law school, had practiced in my field for more than 25 years, writing and teaching seminars. I thought I knew it all, or at least had a firm grasp. I had just published my book, America Solved, my attempt to reverse the destructive federal  child support policies of the past fifty years.

That was almost a year ago. I had been a converted Democrat, and time had transformed me into a Libertarian, with Reason Magazine as my bible. That is where I learned about Randy Barnett and his new book, Our Republican Constitution, and it was in that book that I learned the three important lessons that would lead me to my book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce.

Lesson One: When in law school, I was taught that the source of fundamental rights was the Constitution. It made sense. We have First Amendment rights to free speech, etc. Yet, as are most Americans, I didn’t quite understand the source of those rights not specifically mentioned, especially the Right to Privacy. Practicing in family law, I relied on two of those rights not enumerated, the Right to Parent and the Right to Marry. I accepted those rights because the Supreme Court recognized them as fundamental, although I held on to the view of Mr. Justice Goldberg that those rights exist in the Ninth Amendment. Randy Barnett taught me, however, that the source of these rights lay not in the Constitution, but what was written in the Declaration of Independence. The People have inalienable rights. They transfer some authority to state government, where their elected servants administer their appointed duties for the public good. The People also transfer some to the federal government, i.e., the Constitution, to protect them from foreign intrusion. But since those rights are inalienable, the People lack the ability to transfer, or give up those rights, and thus any act of state or federal legislatures that violate those fundamental rights is void at is inception. Suddenly, it all made sense. The Bill of Rights does not confer rights. It defends them. Congress shall make no law …

Lesson Two:  Elections are based on majority rule, and it has been drilled into us that the view of that majority that should prevail.  We are constantly bombarded from the left and the right, each claiming that their view is correct because they represent the majority. What I learned from Randy Barnett, however, is it that the Constitution is not We the People as the majority, but We the People as a collection of  individuals. As an amateur historian, I recall the folly of the Kansas-Nebraska Act, based on a theory that one group of people could vote to enslave another.  The same question applies to those majority who would restrict the Right to Marry. In 2015, in Obergefell v. Hodges, the Supreme Court made a finding that marriage in America began as a purely private affair, and then evolved. My book,  Private Vows, answers the question of how that happened. But I could not have accomplished that goal without this lesson that I learned from Randy Barnett. Since We the People is a collection of individuals endowed with inalienable rights, and since one of those rights is the Right to Marry, the People could not transfer to their elected representatives the authority to restrict that right. Therefore, state regulation of marriage and divorce is unconstitutional, as are federal laws that impact the Right to Parent.

Lesson Three: Whether it be the current state action to void the Trump Travel Ban or during the Civil Rights Era, where George Wallace and his fellow segregationists so argued, the idea of State’s Rights always intrigued me. Yet, Randy Barnett taught me that State’s Rights is a fiction. States don’t have rights. The Tenth Amendment recognizes that the people did not give complete authority to the federal government. Elected state officials have authority, and that authority is limited to what is specifically conferred. For Private Vows,  Barnett made me fully appreciate that the Tenth Amendment is not a source of authority for what the Supreme Court as recently as 2013 declared, that domestic relations was traditionally left to the states to regulate. Barnett taught me that tradition is not a Constitutional argument. We have to look to our Founding Documents.  Rather, the Declaration of Independence instructs us that the People have the inalienable right to marry, to parent, and to the Pursuit of Happiness. States do not have the authority to regulate marriage and divorce because the Constitution gives the the People’s elected servants no such authority, and any act to interfere in purely private acts is void at its inception.

Thank you Randy Barnett for teaching this old dog a new trick, and I will be forever grateful. You have given me a greater appreciation of the wisdom of our Founders than I thought possible. My personal goal is to share what I learned from you, and to broadcast it for the better of the people of the United States of America.

Alan W. Cohen is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University (St. Louis) School of Law. Now a full-time author and blogger, he practiced Family Law in the St. Louis area for more than 25 years. His books are available on Amazon.

Syria Bombing: Why History Trumps Libertarian Beliefs

By Alan W. Cohen

Presidential adviser Steve Bannon once commented that we Libertarians do not live in the real world. And, from some of the commentary coming out of Cato and other outlets, I can see why he might believe that. More on that later in the week.

Just as we do not believe in the murder of those unfortunate souls that lay beneath those 59 Tomahawk missiles that struck that Syrian airfield Thursday evening, we Libertarians believe in the Constitution first and foremost. Yet, just as murder must be justified in times of war, we must look past our immediate regrets for the President taking unilateral action to send a message to the world.

In 1916, an infamous German chemist convinced himself and the Kaiser that he could end the bloody stalemate at the trenches with a new weapon. The gas attacks that followed were as horrid as they were ineffective, just as the inventor of the machine gun had believed a quarter century before. Yet, while millions of young men died on Flanders Field and all across Europe after blindly going over the wall, it was the gas attacks, not the machine gun that stuck in the world’s collective consciousness. Poison gas was banned by all civilized nations, and it remains so today, just as they have banned torture. Hitler employed poison gas in his Final Solution. It is the weapon of cowards and barbarians, not to be tolerated. Ever.

Thus, when President Trump had a visceral reaction to the pictures of children going through that unspeakable torture, it was understandable. Yet, history is bigger than that. Barrack Obama appeared to morph into Neville Chamberlain in his passive approach to hostile extremism, the Iran Deal being his biggest contribution to receding American power. Just as Chamberlain believed you could make a deal with the Devil, Obama, Susan Rice and John Kerry were convinced they could deal with his minions, and were equally naive. As late as this January, Obama and his acolytes were praising themselves for ridding Syria of chemical weapons.  This is the world that Donald Trump inherited.

Thus, while just as Christians and Jews must go against their religious teachings to wage war, Libertarians must recognize there is an exception to every rule. Evil exists.  It is the job of the President to protect us from that evil. If Trump’s message has a positive impact on protecting our liberty, then we can justify that limited military response. But Rand Paul is right. We must not tread further. Be wary of the war mongers, and remember our past mistakes. Like the Constitution, it is a very delicate balance.

Alan W. Cohen is a retired attorney and author. His most recent book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce is available on Amazon.

Journalistic Ethics is a Myth, Just Like in Any Other Business; Long Live Journalism

By Alan W. Cohen

Conservative commentator Sean Hannity says Journalism is dead. The truth is, however, it was never truly alive, at least not in the sense that journalists want the public to believe. From the beginning of our country, journalism, that is newspapers, were political instruments. Both Alexander Hamilton and James Madison published what we now fall the Federalist Papers under pseudonyms in “friendly” newspapers. The election of 1800 was marred with false rumors published in similar friendly outlets. The election of 1824, certainly the most mean spirited in our history, was highlighted with a claim that Andrew Jackson’s wife was a bigamist. The turn of the 20th Century was the era of the muckrakers. These were the original investigative journalists, the high minded that saw the evils of the Gilded Age, with its sweat shops and child labor. Yet, the bottom line was that the business of journalism was to sell newspapers. Circulation increases advertising, and advertising revenue pays the bills.

These high minded ideals were painted on the hallowed halls of the nation’s first journalism school, where I am still a proud to have graduated. There I was indoctrinated in the myth of my new profession, that we were seekers of the truth, where ever that might lead. The real truth was that all publishers, owners of radio and television stations have a political agenda. They hire like minded journalists to preach their agenda to the masses of respective readers, listeners and viewers, not the truth mind you, but their version of the truth. Every story has an angle, a spin. Yet, like any good snake oil salesman, the job of the news outlet is to convince the world that their truth is unvarnished. We see it in their advertising. Channel X, your trusted name in news. The news you can count on. And so on.

Like many of my era. I was once a true believer, drawing inspiration from the muckraking work of Woodward and Bernstein, Yet, when I graduated from Mizzou in 1981, I entered a world completely unprepared for the truth about my new profession. There were no idealists out there, just people trying to make a living, doing anything and everything to please their bosses, including, and especially obeying their edicts as to story choice and placement. Anyone who violated those rules was sent packing.

We have returned to the era of Yellow Journalism, when the very wealthy publishers had no illusions of purity.  Their agenda was to create the news and to shape public opinion. Their goal is to create as many auto bots as possible to carry their message forward. We see that in politics with the likes of billionaire globalist George Soros who finances scores of agenda driven organizations of the far left and the libertarian leaning Koch brothers on the right.  Big Media is nothing more, using past reputation as fodder to convince the masses, attempting to destroy any that would oppose their views. Journalism used to be about protecting free speech. Now it is about protecting only the speech of those that agree and support your message. We see this scenario play out over and over again on the streets of Ferguson and Baltimore, and on college campuses across the nation, as  the media driven auto bots repeat the hate and intolerance while at the same time proclaiming themselves as completely right. At the same time, the media justifies their violence and destruction as protected protest.

Yet, true journalism lives on in the spirit of the muckrakers that did deep to uncover corruption, especially of those in power. Unfortunately, those are few and far between. What remains are the snake oil salesmen that pitch their truths to anyone who will listen. The worst of these are the sanctimonious who actually believe their version is pure. Ironically, if every reader, listener or viewer attended journalism school, they would know how to filter truth from the politically driven garbage that masquerades as news.

Alan W. Cohen is an attorney and author. His most recent book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce is available on Amazon.