A Randy E. Barnett Review

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Restoring the Lost Constitution : The Presumption of Liberty
Published in Hardcover by Princeton Univ Press (December 15, 2003)
Author: Randy E. Barnett
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An Argument For Restoring Freedom

In a scenario undoubtably repeated countless times across America: local people passing indifferently for years by old neighborhood homes, dilapidated and neglected as far back as collective memory can recall. Then, a few curious and intrepid souls delve into forgotten local history and learn, to their amazement, of the beauty and grandeur that once were these homes. Moved by the tragic loss, these brave people set out to restore the edifices to their former glory.

Randy Barnett, professor of law at Boston University, sets out in a similar task in his latest book Restoring the Lost Constitution: The Presumption of Liberty. He chronicles the Supreme Court´s two hundred­year steady hollowing of the principles underpinning the US Constitution. Clauses meant to restrain government power are deformed in landmark decisions to suit convenience: Necessary and Proper Clause - McCulloch v. Maryland (1819), Commerce Clause - Gibbons v. Ogden (1824), Privileges or Immunities Clause of the 14th Amendment - The Slaughter-House Cases (1873), Commerce Clause again - Wickard v. Filburn (1942), and the Ninth Amendment - United Public Workers v. Mitchell (1947).

But how did this happen? Barnett revisits the architect of the US Constitution for clues. James Madison believed, as did most Founding Fathers, that the foundation for a just and moral constitution lay in one based on the presumption of liberty. Since the beginning of time there have always those who want either what another has got. Or, there are those who seek to force their will upon others, be it out of malevolence or benevolence. In either case, the result is always the same - tyranny. This dark side of man was well known to the Founders from their readings of radical Whig philosophy, an ideology to which they adhered. As a consequence, they incorporated constructs into the Constitution to deprive factions of as many legal avenues as possible to act upon these impulses. Inevitably, there arose those who began to regard such safeguards as roadblocks to "desirable" results.

And the way to get those results is to delegitimate the Constitution´s principles by viewing the document as a "living" one. Barnett strikes back in the first few chapters to build a novel case for a binding adherence to the founding principles of liberty. Inspired by an essay by Lysander Spooner, Barnett argues that constitutional legitimacy cannot be grounded simply on the basis of the "consent of the governed": "...is one morally obligated to obey any law that is enacted according to constitutional procedures?" (p. 12). Furthermore, how can one bind a citizen to a constitution agreed to by neither himself nor his ancestors? The answer: ground the constitution in the moral force of natural rights.

The Founders viewed natural rights as those inherent rights people held apart and beyond the reach of government. As long as one does not interfere with the rights of another, his rights may not be intruded upon by either another individual or government without compelling justification. Without such bounded freedom, there can be no "society in which people can pursue happiness, and in which civil society can enjoy peace and prosperity."(p. 82). But such a concept of liberty displeases those, both on the left and the right, who desire to commandeer government´s near monopoly on violence to achieve desired ends.

Unsurprisingly, they oppose attempts at "originalism," a legal doctrine that interprets the Constitution as understood by the authors. Barnett notes that although originalism has taken a ferocious beating in the past few decades, a resurgent wave of scholars, including himself, has come to the rescue. Instead of making a case on "original intent", which he finds wanting, Barnett retrieves comments by both Madison and Spooner to argue for "original meaning", an interpretation of the Constitution as understood by the general reader at the time of enactment. And, as Barnett notes, having a constitution written down serves a clarifying function to provide "good evidence of what terms were actually enacted when later they might be disputed"(p. 101). This "locks in" lawmakers from altering the law to which they themselves are bound. The responsibility for enforcing such restrictions lies with the judiciary branch. In the controversy over the legitimacy of judicial review, Barnett argues that though the Constitution is not explicit, the overwhelming historical evidence supports the judiciary´s power to nullify unconstitutional laws. Thus, the burden of proving constitutionality rests in the legislature. The existence of the Necessary and Proper Clause, the 14th Amendment, and the Ninth Amendment all support this view. However, the Supreme Court, from its beginning under John Marshall, has steadily shifted its stance to one of "presumption of constitutionality." That is, the Court assumes legislation as constitutionally sound except when an enumerated right is expressly violated. This deference to the legislature has allowed a " ... system of islands of powers in a sea of individual liberty rights at both the state and national levels .... " to become "... islands of rights in a sea of state and federal power."

In part Article I, Section 8 grants national government the authority to " ... make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers .... ". The prescient Anti-Federalists viewed this clause with suspicion as they were concerned that it would cede too much power to the Federal government. Madison, aware of this potential usurpation, argued vigorously against any interpretation of "implied powers." He, along with Jefferson and Hamilton, drew a distinction between "necessity" and "convenience", without which the limits placed on the power of the federal government would be eroded. Thus, federal powers must be limited to the execution of responsibilities enumerated in Article 1. The issue came to a head with the creation of the national bank. With Marshall´s less restrictive view of "necessity"in McCulloch v. Maryland, the door was now open for the federal government to expand its powers.

Several decades later, the federal government began to intrude upon the authority of states. Up to the Civil War, the Court maintained the view established by the Marshall Court in Barron v. Baltimore (1833) that the Bill of Rights applied only to the federal government. During this period, the states were able to routinely suppress free blacks and abolitionists. In reaction, the 14th Amendment was enacted after the war to extend protection of civil rights to all Americans. Yet it took a mere five years for the Privileges and Immunity Clause of the 14th to come under attack. Under The Slaughter-House Cases, the Supreme Court made a differentiation between federally protected rights and those protected by states. The very protections that citizens had gained were now being dismantled. In later years the Supreme Court would broaden the Commerce Clause to involve itself in state commerce. In Champion v. Ames, for example, the Court found the clause to permit Congress to actually prohibit economic activities not approved of. But things got in to full swing in the 1930´s. The FDR Court found all manner of excuse to expand federal powers. The Ninth Amendment was no exception. Madison, the author of the amendment, made clear its purpose in protecting unenumerated powers was twofold: guard against "a latitudinarian interpretation of enumerated powers when those powers are used to restrict the liberties of the people" and to limit "both the ends of government and the means by which these ends can be legitimately be pursued" (p. 241).

After Marshall, the Court´s presumption of legislative constitutionality waxed and waned over the course of the 19th century until the FDR Court enshrined it in the infamous Footnote 4 of the 1938 case U.S. v. Caroline Products. Now the Court gave Congress wide berth to regulate the economy and society unless it violated most enumerated rights. (Though an enumerated right, the Second Amendment was no longer seen as worthy of protection.) The Court steamed ahead in the ensuing decades until Roe v. Wade. Ironically, New Deal sympathizers were now forced to defend abortion rights on the very doctrine they fought so hard against: unenumerated rights. Since, the Court has begun to steer itself, somewhat, in a direction Barnett finds sanguine.

In the 2003 case Lawrence v. Texas, Justice Kennedy based his rejection of the state of Texas´ case for supporting the its ban on sodomy on two revolutionary points. First, he based his argument not on the right of privacy, but on the right to liberty as found in the 14th Amendment. Second, he jettisons the post-New Deal doctrine to defend exercise of liberty even when not fundamental. This direction is one that Barnett finds as the salvation of restoring the Constitution. Based on the Ninth Amendment, Barnett´s prescription is to return the philosophy of judicial review to its rightful origins: the presumption of liberty. Barnett concedes the need for reasonable restrictions on rightful acts for example when such regulations "are shown to be necessary to prevent the future violation of rights of others." When a court is faced with a hard case, he feels that in order for the rule of law to be maintained, society must accept the outcome even when it is not a "happy" ending.

This has been a summary of a rather detailed and well-crafted case for the presumption of liberty. Barnett has gone to great length in both digging up historical evidence and preparing a defense from the myriad of inevitable critiques from those opposed to restoring the libertarian foundation of the Constitution. Yet I have critiques myself. The first is unavoidable. Barnett is not aiming for the lay reader, but rather to colleagues or others familiar with such Constitutional debates. Thus, he assumes a familiarity of the Constitutional issues involved that the general reader will unlikely possess, and thus, keep the book from reaching the wider audience it deserves. Despite difficulty appreciating the nuances of the argument, such a reader should still be able to grasp the central theme. Second, I wish Barnett had spent a little more time shoring up the moral moorings of natural rights philosophy. By doing so, his case for liberty rights would pack more of a punch in the moral debate.

Nonetheless, Randy Barnett has come up with a great book which I hope isn´t his last in this much needed debate. He ends with an optimistic view that all is not lost. That grand old house called the US Constitution, long neglected and run down, is waiting for citizens to breath new life into it and return it to the greatness envisioned by its architects. Now, all is left is for enough republican-spirited citizens to make it happen. - Francois Krodel