Restoring the Lost Constitution : The Presumption of Liberty

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Summary: Reversing the decay
Review: Like an old that has been allowed to become run-down and dilapidated through neglect and abuse, the US Constitution of today is not the one meant by its authors. Randy Barnett, professor of law at Boston University, lays out a plan to salvage it in his latest book Restoring the Lost Constitution: The Presumption of Liberty. He chronicles the Supreme Court's two hundred-year steady hollowing of the principles underpinning the US Constitution and then proceeds to build a case on how to salvage it.

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. Man's dark side of exploiting and imposing his will on others was well known to the Founders. They incorporated constructs into the Constitution to impede special interests 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. He 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 (liberty) rights as those inherent rights people held apart and beyond the reach of government. 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.

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. 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 resides 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."

Barnett reviews the Court's corruption of clauses meant to restrain government power 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).

Barnett points to Justice Kennedy's revolutionary decision in Lawrence v. Texas (2003), which rejects the state of Texas' case for supporting its ban on sodomy, as the way out of the current situation. Kennedy based his argument not on the right of privacy, but on the right to liberty as found in the 14th Amendment. 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 the ending is not a "happy" one.

I have two critiques. The first is unavoidable. Barnett is not aiming for the lay reader, but to those familiar with Constitutional debates on originalism. 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.

Rating:
Summary: important book that should be read by judges
Review: Randy Barnett has written a fascinating and well-argued book. The book is composed of four parts: "Constitutional Legitimacy," "Constitutional Method," "Constitutional Limits," and "Constitutional Powers." The first part takes seriously Lysander Spooner's arguments in "No Treason: The Constitution of No Authority" that the Constitution is not and cannot be binding on people who did not explicitly consent to it- the "we the people" in the preamble is a fiction. Barnett argues for a view that a Constitution can be legitimate and binding in the absence of explicit consent only if it incorporates appropriate limitations on government to safeguard individual rights. This is the most philosophical section of the book, and I found it the weakest--while I think Barnett had good arguments against tacit or implied consent, I'm not sure his alternative really provides the legitimacy it purports to, nor am I particularly persuaded by his account of natural rights. (I am a strong proponent of individual rights, but I am unconvinced that they are grounded in nature, as opposed to being justified by a combination of empirical fact and subjective values.)
In Part 2, "Constitutional Method," Barnett argues that the Constitution is properly interpreted by a form of originalism based on original meaning, as opposed to original intent. He argues persuasively that the arguments against originalism which target original intent do not work against original meaning. I found this part much more persuasive than Part 1, and I think he has formulated a consistent and rational methodology of Constitutional interpretation that takes seriously what is written in the text.
Part 3, "Constitutional Limits," is where things start to get really interesting. Barnett examines the judicial history of the "necessary and proper" clause of Article I, Section 8, and argues that the Supreme Court made a wrong turn way back in 1819 in McCulloch v. Maryland by adopting an expansive interpretation of this clause where "necessary" meant "convenient" and "proper" was virtually ignored. He extensively reviews contemporary sources to argue for the meaning of this clause and that it requires judicial review of laws to make sure they are grounded in specific powers granted in the Constitution. Barnett begins this section with a quote from Justice Clarence Thomas in FCC v. Beach Communications, showing that Thomas has bought completely into the view that there is a "presumption of constitutionality" for acts of the legislature, whereas Barnett favorably cites Justice Stevens' response to Thomas that "judicial review under the 'conceivable set of facts' test is tantamount to no review at all."
Barnett also argues that the "privileges and immunities" clause of the 14th Amendment was used incorrectly (too narrowly) in the 1873 Slaughter House cases, but the "due process" clause of the same Amendment was used correctly in Lochner v. New York in 1905. He argues that both federal and state legislatures which act to limit the liberties of the people need to show that it is within the enumerated powers of Congress or within the police powers of a state, respectively, and otherwise overturned by the courts.
Finally in this section, Barnett turns to the meaning of the Ninth Amendment, which reserves unenumerated rights to the people, and takes issue with Footnote 4 of the 1938 case United States v. Carolene Products. The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation. The requirement of a specific enumerated right was then expanded in Griswold v. Connecticut by allowing additional rights not specifically enumerated, but found in "emanations and penumbras" from the other rights. Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights. (E.g., a regulation can restrict time/manner/place of speech, but not content; speech itself cannot be prohibited on the basis of content without improperly infringing the right.) Barnett gives an entire chapter on the presumption of liberty, and how to identify rights that have not specifically been enumerated.
In Section 4, "Constitutional Powers," Barnett looks at the commerce clause of Article I, Section 8, and argues that the Supreme Court went wrong with Gibbons v. Ogden in 1824 by equating "commerce" with "intercourse" and allowing Congress to regulate that in every case where it merely affects more than one state. Barnett argues, again by citing a wide variety of contemporary sources, that "commerce" was distinguished from "manufactures" and "agriculture," and was synonymous with "trade." Thus, Congress has no legitimate power to legislate regarding manufacturing and agriculture, only regarding trade between states, with foreign nations, and with the Indian tribes.
He also includes a chapter on the police powers of states and what they can constitutionally do on his account, and another on the application of his view to judicial doctrines and cases. He argues that this yields something which is rather libertarian, but not entirely so.
Barnett puts forth a position which takes the language of the Constitution seriously, and which would require us to be explicit about making changes to it when we find that it has become out of date, rather than allowing a flexibility to the language to such an extent that the original wording no longer has any meaning at all. He spells out a view in which there is real content to judicial review, justified directly by the language of the Constitution, and in which the court has strong checks and balances against the legislature and the executive (and vice versa).
This book deserves to be widely read and taken seriously by those in the judiciary.