Restoring the Lost Constitution
The Presumption of Liberty
Randy E. Barnett

Copyright 2004, Princeton University Press
ISBN: 0691115850

Randy Barnett is a law professor at Boston University, a highly respected constitutional scholar, a contributor to the high-profile Volokh Conspiracy legal blog, and probably a shoo-in for a Circuit, if not Supreme Court nomination under a wildly hypothetical Libertarian administration. Restoring the Lost Constitution is essentially Barnett's constitutional law manifesto, touching on the foundation, form, adjudication, and limits of constitutional government.

To begin with, Barnett raises the question, a longstanding one in political theory, of what makes for legitimacy in a system of government, and particularly the American system of government as established in that nation's constitution. Drawing on the work of the arguably "proto-libertarian" anarchist theorist Lysander Spooner, Barnett rejects traditional "social contract" theory, that legitimacy is a product of citizens' consent to grant sovereignty, which in a state of nature each holds over himself, to a central government. Barnett argues that government cannot claim legitimacy or a duty of obedience to its laws in this way unless consent is active, unanimous, and continuous, qualifications which make this means of legitimation impossible. Instead, Barnett argues that a government may claim legitimacy if it is organized in such a way as to act only in a just manner, with justice mostly defined as respect of and accordance with preexisting natural law rights.

Moving on from this topic, on which I guarantee I have not done justice to Barnett's views, our professor establishes his approach to constitutional interpretation. He describes this approach as an "original meaning" originalism, which he distinguishes from "original intent" originalism. This latter form of originalism, which Barnett associates with the 1980s works of Meese and Bork, asserted that the Constitution was a expression and institution of the will of the people, and so the constitutionality of a particular action should be judged against the will of the society and culture in which the Constitution and its various amendments were first drafted.

Among the criticisms of this approach was the point that discerning the "true intentions" of a wide variety of people, frequently in dispute with each other and in any case mostly dead for several centuries, was impossible, and scholarly lacunae would necessarily be filled in with politicized inference. This aside, there was the inconvenient fact that it was not at all clear that adherence to original intent was, well, what the drafters originally intended.

Barnett's "original meaning" approach, which he suggests effectively, if not explicitly, underlies much recent scholarship across ideological boundaries, instead suggests that the Constitution should be interpreted in light of the manner in which the text would be understood at the time of its adoption. This philological approach suggests that judges seeking to understand the meaning of particular constitutional phrases should search contemporaneous documents for cases where the same words and/or grammatical constructions were used to determine how such language was employed and understood at the time.

In accordance with Barnett's rejection of popular sovereignty as a basis of constitutional legitimacy, this approach abandons any claim to represent the will of any particular historical group. In return, it satisfies his requirements for system in which a justice-producing structure can be "locked in". In addition, as Barnett sees it, this approach avoids the bootstrapping flaws of previous originalist theories. Where "original intent" interpretation could not be shown to be within the original intent of the drafters, Barnett argues that textual originalism is inherent in the textuality of the Constitution. Much in the way that the widely accepted, fundamental constitutional principle of "separation of powers", or "checks and balances", while not explicitly stated in the text of the Constitution, is implicit in the tripartite structure of the government, the Constitution's status as a formal, written document implies that it should be taken to have an established, unchanging meaning and effect, set at the time of drafting. In a context in which the American founders retained British common law jurisprudence with few major changes, Barnett suggests, to break with the centuries-old and much-trumpeted Anglo tradition of an "unwritten constitution" was no casual, meaningless act.

Having established the basis of his original meaning approach, Barnett spends much of the rest of the book demonstrating its application and implications, examining several sections of the Constitution with respect to contemporary usages. One of the first and most important issues Barnett addresses in this way is judicial review. He argues that the power of the courts to evaluate legislation and government action against the limits of the constitution and of natural law, and to strike it down where it exceeds these boundaries, was widely understood as a fundamental aspect of the "judicial power" at the time of the Constitution's drafting, not simply invented out of whole cloth in Marbury v. Madison. Establishing this power as constitutionally based is important, as when taken together, Barnett's interpretations suggest a fairly active role for the courts in policing these boundaries against the overweening ambition of the legislature.

Other Barnett readings specify where he believes courts should draw these boundaries. For example, in addressing the Commerce Clause, he points to the tendency of newspaper and other accounts to refer to "manufacture" and/or "agriculture" alongside and separate from "commerce" when speaking of export-oriented industries as a basis on which to grant federal jurisdiction only to the interstate exchange of trade goods, and not, contra Wickard v. Filburn, these goods' production. Elsewhere, he argues that "regulation" and "prohibition" were recognized as fundamentally different concepts, and the power to regulate should not be read to incorporate the power to prohibit, as it frequently has.

The work gets meatier when Barnett goes on to argue that the Necessary and Proper, or "Elastic" Clause is not in fact a constitutional escape hatch allowing the government to act in manners not specifically authorized otherwise, but rather a further restriction. This clause, in Barnett's view, conditions the ability of the legislature to enact legislation on both the necessity and the propriety of the proposed laws.

After a lengthly study of historical meaning, Barnett concludes that "necessary" here means that laws may only serve as implementations of otherwise enumerated powers, and must do so in the least onerous manner feasible. Barnett then interprets "proper" largely to mean "within the power of the government". In many ways this propriety overlaps with necessity, but Barnett points out areas where the two are not coterminous. For example, Section VIII clearly grants Congress the "Power to lay and collect Taxes, Duties, Imposts and Excises". To prevent smuggling and thus collect all taxes due, it might be practically necessary to grant customs agents "general warrants" to search all shipments for undeclared, untaxed goods. To do so, however, would not be proper, as the 4th Amendment establishes that only specific and particular warrants may be issued.

In this way, Barnett's "necessary and proper" can be roughly described as testing the legitimacy of both ends (necessity) and means (propriety). In establishing this formulation through frequent reference to legal tradition and recorded debates on constitutional drafting ratification, he takes time to highlight the extent to which involved parties regularly assumed that these boundaries would be judicially enforceable.

The claws come out further in addressing Privileges and Immunities Clause of the 14th Amendment, and especially the 9th Amendment, a major interest of Barnett's, and one on which he has produced a wealth of highly respected scholarship. It is mostly these two areas of which Barnett is speaking when he talks about the "Lost Constitution", as they have been mostly considered "dormant" and unenforcable since the Slaughterhouse Cases and US v. Carolene Products' "footnote four", respectively. The 9th Amendment protects the "unenumerated rights" of the people against the federal government, and as Barnett would have it, the Privileges and Immunities Clause was intended to make rights actionable against the state governments, as well. (In the absence of a vital P&I clause, this "incorporation" was mostly carried out under the aegis of the 14th Amendment's "equal protection" and "due process" clauses, but not until the mid-20th century and even then in an awkward, patchwork way.)

The problem is, then, that since "footnote four", the Supreme Court has largely abandoned any attempt to enforce unenumerated rights in a coherent way. As things stand, the Supreme Court generally grants legislation a "presumption of constitutionality", which is to say that the burden of proof lies on those seeking to prove a law unconstitutional, which with few exceptions they may do only by proving that it infringes on a "fundamental right". Fundamental rights include (for the most part) the rights specifically granted in the Constitution, mostly in the Bill of Rights. The government does protect some claims not specifically enumerated. Griswold v. Connecticut and Roe v. Wade, for example, relied on the inclusion of the unenumerated fundamental right of "privacy". Such claims, however, are not legitimated under the aegis of the 9th Amendment, but by reference to the implications of other, enumerated rights (thus Griswold's vague "penumbras and emanations"), or to claims of tradition and "ordered liberty".

Critics say that the classification of a claim as a "fundamental right" or a lesser "liberty interest" follows no clear pattern and appears to be an ex post facto justification for protecting things that, well, the Justices really like. I'm inclined to agree. In any case, mere "liberty interests" may be impinged upon freely, as long as the government action doing so meets a rational basis test. As currently employed, the rational basis test is practically a rubber stamp. If the government can offer any purpose for passing a law - and it doesn't have to be a good purpose, or a purpose in accordance with enumerated powers, or even the purpose that the people passing the law really had in mind - and it's not completely obvious that this is merely a pretext for discrimination against some group, the law is judged constitutional.

All this gets Barnett's blood boiling. Yes, he appreciates the difficulty of determining exactly what an "unenumerated right" is, but to elide the 9th Amendment and not even try is a grave abdication of the judiciary's constitutional duty. He argues that the Court must abandon much of its jurisprudence since Lochner v. New York, a sort of "last hurrah" for aggressive judicial review before the "Switch in Time that Saved Nine" in which the Supreme Court struck down as unconstitutional state labor regulations limiting the working hours of bakers. Barnett is not alone here, and is but one of many legal scholars who have recently been rehabilitating pre-footnote four jurisprudence, previously a subject of general disdain in mainstream legal circles. These thinkers have recently been described as working together to restore the "Constitution in Exile", although most claim not to see themselves as part of an organized movement.

Barnett concludes by arguing that the proper readings of the Necessary and Proper Clause, Privileges and Immunities Clause, and 9th Amendment, plus the natural law supporting constitutional legitimacy, suggest that in place of the "presumption of constitutionality", the judiciary should operate under a "presumption of liberty", thus accounting for the tome's subtitle. Effectively, this would really be a "presumption of unconstitutionality", a presumption which could be overcome only by showing the necessity and propriety of the law. Thus, all actions which infringe on the liberties, enumerated or unenumerated, of the people whould be subject to a test similar to the current "strict scrutiny" test currently applied in select cases, a test that state action almost invariably fails. The question then remains, what are liberties? Barnett suggests that this category includes all, where "rightful" is understood in a natural law framework to be those which respect others' fundamental rights, with the rightness of any given act to be evaluated by judges.

This is where most of the book's critics, most prominently Cass Sunstein, take issue. Many simply find him too precocious in deducing a system which essentially boils down to the harm principle-governed "night watchman" state idealized by many libertarians. Others question the prominent role of the judiciary in this scheme. They argue that practically, judges cannot be saddled with the philosophical task of deciding right and wrong in every case, and that politically, it amounts to little more than a justification for conservative "judicial activism".

Barnett preemptively addressed some of these concerns in the book, noting that the idea of judges making rulings on right and wrong is the very basis of common law, on which the American legal system is founded, and that almost all non-criminal law in America functions (quite well) on the basis of this judicial, precedential approach. He further points out that the very existence of the category of "liberty interests", which the judiciary at least rhetorically recognizes as legitimate, even if they may be suppressed with impunity, as opposed to unjust "license" which the judiciary extends no protection to, suggests that the courts are plenty capable of making such distinctions.

As for expanding the power, and thus influence, of the courts, Barnett acknowledges that this is an inevitable consequence of a presumption of liberty, but argues that the power he would grant the judiciary is a proper and constitutional one, and the status quo is not one in which this power remains with the people, but rather one in which it has been improperly arrogated by the legislature. He believes also that the inevitably increased politicization of the judiciary following such a shift will prevent the courts from sailing directly into the wind of popular will, but that when lifetime tenure and the abstracted nomination process are taken into account, the courts will mostly serve as a countercyclical force of moderation. Hardly blind to the political value of this tract in promoting himself as a compromise candidate, Barnett takes pains to point out that under such a system both liberals and conservatives will see benefits in the form of affirmation of their favored rights (say, abortion and the right not to have one's taxed income support religious activities on one hand, gun ownership and home schooling on the other).

Despite this, I have to agree with some critics in questioning Barnett's upbeat estimation of the flexibility of the political system, and the proposition that such a change could be made without the rest of the government, and the structures through which citizens and political forces relate to that government, radically restructuring itself in response. I fear the recent proposals to invoke the "nuclear option" to prohibit Senate filibusters against judicial nominations, a potentially major shift in the established balance between the branches of government conducted in the absence of any single dramatic provocation, would look like cake by comparison.

This might all have been manageable in the early days of the republic, back when the political calculus was such as to render such a change unnecessary, but in the face of the majoritarian reforms instituted since the adoption of the Constitution, like universal adult suffrage and directly elected senators, I fear a reaction which might well leave our liberties in a worse place than they started. While I don't want to descend into Borkian defeatism, I must note that alongside the emphasis on rights, the libertarian tradition also includes a strong Hayekian current emphasizing the unpredictability, uncontrollability, and raw danger inherent in attempts at sudden sociopolitical change, and perhaps Barnett's proposals would gain from being tempered by such wary caution.

Amazon page -
Barnett at The Volokh Conspiracy -