Restoring the Lost Constitution: The Presumption of Liberty [Paperback]

Randy E. Barnett (Author)

Book Description

Publication Date: July 5, 2005 | ISBN-10: 0691123764 | ISBN-13: 978-0691123769

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.

Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.

As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.

Editorial Reviews

Review

A hopeful work--provocative, documented, resolute, reasoned, readable--delightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road. (Willian H. Peterson Washington Times)

This book is terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution. . . . [A]n excellent work. (Ronald Kahn Law and Politics Book Review)

From the Publisher

2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books

See all Editorial Reviews

Product Details

• Paperback: 384 pages
• Publisher: Princeton University Press (July 5, 2005)
• Language: English
• ISBN-10: 0691123764
• ISBN-13: 978-0691123769
• Product Dimensions: 6 x 0.9 x 9 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 4.2 out of 5 stars  See all reviews (13 customer reviews)
• Amazon Best Sellers Rank: #383,996 in Books (See Top 100 in Books)
  • #24 in Books > Law > Family Law > Child Advocacy

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Most Helpful Customer Reviews

88 of 95 people found the following review helpful

4.0 out of 5 stars important book that should be read by judges June 6, 2004

By James J. Lippard

Format:Hardcover

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. Read more ›

46 of 48 people found the following review helpful

4.0 out of 5 stars Reversing the decay June 2, 2004

By Francois Krodel

Format:Hardcover

Like an grand old building 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. Read more ›

42 of 45 people found the following review helpful

5.0 out of 5 stars 9th Amendment: Void Where Prohibited by Law August 16, 2004

By Carl Bitzer

Format:Hardcover

For those who love liberty and want to be better informed about how our Supreme Court has eroded our liberties "Restoring the Lost Constitution" is a book you must read. Barnett, the author, is the Austin B. Fletcher Professor at the Boston University School of Law. In the Preface he recounts how as a student he was disturbed by what he learned in his Constitutional Law class. On the basis of that experience he decided to specialize in contract law where the practice of law was more rational. There he remained until he was tenured. He "came out of the closet" when quite by accident he was asked to give a short talk about a constitutional law issue -- a fascinating story in its own right.

Barnett brings his considerable knowledge and experience to bear on constitutional law in "Restoring the Lost Constitution." The first part of the book takes up the subject of constitutional legitimacy. Have you ever had an argument with someone who says, "I never signed onto the constitution, so I'm not bound by it?" Barnett takes that person's side and demolishes one counter argument after another. In reading his arguments I became more and more frustrated. I thought to myself what do I have to tell this guy? The constitution is in place; if you don't like it, make the most of it. But Barnett is much more gentle than that, in part I suppose, because he has an ace up his sleeve. He then figuratively turns to the person he was defending and asks a simple question. "What is the foundation for your belief that you are not bound in conscience to the constitution?" When I got to that point I said to myself, "Gotcha!!" Perhaps you can guess what the answer was and how Barnett uses it, but I am not going to spoil your fun by revealing it.... Barnett then proceeds to demonstrate with impeccable logic that the person in question cannot offer that answer without knocking the foundation out from under his own objection to being bound in conscience to a properly formed constitution.

He then takes up the subject of constitutional method. Here he makes the vital distinction between intention and meaning. One simply cannot be a mind reader who ferrets out the intentions of the framers of the constitution. In fact, in the tradition of contract law the intentions of the framers is not even primary. What is much more important is the understanding of the ratifying assemblies as to what they were signing onto. However, there is something akin to original intention which is really the only proper way to interpret the constitution. That is original meaning. Later on in the book he takes up the much abused Commerce Clause and examines the original meaning of "commerce", "to regulate", and "among the several states." He looks at the definition of commerce (for example) in Samuel Johnson's "Dictionary of the English Language. He examines every instance of the word in records of the Constitutional Convention, "The Federalist", records of the ratification conventions, the constitution itself, and seventy-two years of "The Pennsylvania Gazette." Even if all these documents are available electronically, this is a monumental task.

In the next part Barnett expounds on constitutional limits. He examines the meaning of the Necessary and Proper Clause and the Privileges or Immunities Clause. He shows how the constitution was turned inside out by the infamous "Footnote Four" in the 1937 "Carolene Products" case. In the concluding chapter he addresses the books subtitle in depth in a chapter entitled "The Presumption of Liberty: Protecting Rights without Listing Them."

The final part addresses constitutional powers and discusses the meaning of the Commerce Clause, the proper scope of state power, judicial doctrines and application to cases. The last short chapter is entitled "Restoring the Lost Constitution."

Barnett writes with brilliance and clarity. If, like me, you have trouble with legal language or 18th Century speech, not to worry. When he inserts a quote, more often than not, Barnett anticipates your problems and explains the author's message in simple straightforward language. The only negative I encountered was his use of the feminine instead of the traditional masculine third person. That's a little disorienting to me, but it occurs only five or six times in the entire book.

In reading this book I experienced a new respect, bordering on reverence, for our constitution and the framers who choose their words so carefully. I also gained a new respect for the law and those who practice it as it should be, could be, and perhaps one day again in the future will be practiced.

If you want to twist the constitution to fit your pet views of how things ought to be, this is not the book for you. On the other hand, if you have a consistent non-contradictory devotion to liberty and are willing to let the chips fall where they may, then this book along with the United States Constitution restored to it's original meaning is definitely for you. Whatever you may feel you have lost in the process is more than compensated by the tremendous gains. Read more ›