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Restoring the Lost Constitution: The Presumption of Liberty Hardcover – January 4, 2004
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Winner of the 2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books
"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
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2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books --This text refers to the Paperback edition.
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and liberties as they where outlined in our constitution and how they are being
infringed upon by our various levels of government.
To the contrary, it addresses the judicial function of "construing," and should carry no implication of a power to enforce these philosophically-defined rights. At that time, the states pre-existed the formation of the federal government, and they were the repository and guarantors of all human rights. This function had to incloude the power of the state to legislatively define and limit natural rights. Basically, "freedom" meant the right to do whatever one wanted, so long as the acxt was not aimed at injuring others, and I believe this to be the source of "natural rights." It was intended that the power protecting those rights should be the state legislature, selected by and answerable to the people of the state.
Asdide from this, an excellent and thoughtful work.
Barnett initially addresses the question why we should consider ourselves bound by the Constitution at all, since the idea that it really speaks for every single one of 'the People' for all time is clearly a fiction. His answer will surprise everyone but libertarians: we should regard ourselves as bound by the Constitution because, insofar as, and so long as it is used to enact those laws that preserve and protect our liberty rights.
On this foundation Barnett develops a theory of Constitutional interpretation based on 'original meaning' (carefully distinguished from 'original intent' as originally defended by Bork and Meese). The heart of his thesis is that, wherever possible, we ought to prefer a reading that comports with the public understanding of the Constitution at the time it was ratified (which may not, of course, be a precise match for the 'intent' of the framers). He has James Madison on his side here. (Of course a similar argument applies to the various Amendments as of the times _they_ were ratified, so Barnett's 'original meaning' isn't a haven for those who want to undo the Fourteenth Amendment.)
Barnett then applies this interpretive approach to the judicial power in order to demonstrate that judicial review -- specifically including the power to nullify unconstitutional laws -- was part of the original understanding of this power. This chapter is quite well argued and, in my view, altogether conclusive on the issue. It's also, unfortunately, quite necessary, because there are people calling themselves 'conservatives' who seem to think judicial review was conjured out of the ether in _Marbury v. Madison_ (1803). (Mark Levin's recent _Men In Black_, for example, is hopelessly muddled on this issue, as Levin fails to distinguish carefully among judicial review, a judicial veto, and judicial supremacy. See my review of that book for further criticism.)
Having established that judicial review is part of the original Constitutional scheme (and part of the Constitutional meaning of 'due process'), Barnett then applies his original-meaning methodology to determine just how the Supreme Court ought to interpret various portions of the Constitution in reviewing the legitimacy of legislative enactments. The Necessary and Proper Clause turns out, on his analysis, to delegate to Congress only the power to enact legislation strictly requisite for the exercise of its enumerated powers ('necessary'), and only to the extent that such legislation does not infringe liberty rights ('proper'). The Fourteenth Amendment's Privileges or Immunities Clause turns out to bind state governments to the entire Bill of Rights. (See Michael Kent Curtis's excellent _No State Shall Abridge_ for a fine analysis that reaches the same conclusion.) And the Ninth Amendment turns out to protect all liberty rights of any kind, whether enumerated or not.
Barnett is then able to arrive, in consequence, at his central thesis: the twentieth century's 'presumption of constitutionality' should be reversed, and the Supreme Court should conduct judicial review on the basis of a 'presumption of liberty'. Instead, that is, of presuming that (say) a piece of challenged Congressional legislation is Constitutional unless an opposing party can show otherwise, the initial burden should be on the government to show why such legislation _is_ 'necessary and proper'.
Barnett then applies his analysis to the Commerce Clause and the police powers of the states, concluding that the scope of each is far narrower than recent jurisprudence allows. A closing chapter looks at a few 'hard cases' (though hardly, of course, an exhaustive list).
The analysis is excellent throughout. As he did in _The Structure of Liberty_, Barnett has thrown down a gauntlet here and I can't imagine what a successful response might look like.
There are minor points I could nitpick. (For example, Rep. John Bingham, drafter of the original version of the Fourteenth Amendment, was from Ohio, not -- as Barnett says on p. 193 -- New York.) The index could also use a lot of work; a random spot-check turns up a number of problems. (For example, a reference to Richard Epstein that actually appears on p. ix is indexed for page xi; Michael Kent Curtis appears on pages 61, 62, 108, 115, 203, and 348 but is indexed only for p. 61; some references -- e.g. to Henry Veatch, whose excellent _For An Ontology of Morals_ Barnett cites on p. 83 -- aren't indexed at all; and a reference to Murray Rothbard on p. 346 is indexed for p. 246. And yes, 'anal-retentive' _does_ take a hyphen; why do you ask?)
More seriously, perhaps, I'd have liked to see a bit more analysis of 'hard cases' that are controversial even among those inclined toward libertarianism. Even on Barnett's understanding of the Ninth and Fourteenth Amendments (which I think is utterly correct), it's not clear that abortion falls within the scope of retained liberty rights (as the interests of another party are pretty obviously adversely affected). Even here, though, Barnett's analysis is of tremendous help in posing the question correctly, whatever one's views on the answer.
It's a brilliant book from start to finish and it's probably the single best volume of Constitutional legal theory currently available; naturally there's lots of really cool stuff in it that I haven't even begun to summarize here. It's also a wonderful antidote to the spate of recent 'conservative' Court-bashing literature that persistently misidentifies the problems and tosses out the Constitutional baby with the bathwater.
If the Constitution is of interest to you, don't miss this one. By the way, Barnett is also the coauthor of a brilliant _amicus curie_ brief submitted by the Institute for Justice in _Lawrence v. Texas_; look that up too.