Restoring the Lost Constitution —The Presumption of Liberty
by Randy E. Barnett (Princeton University Press, 2004); 366 pages; $32.50
Sometimes a picture really is worth a thousand words.
The dust jacket of this superlative book shows the first page of the U.S. Constitution with numerous holes in it, as if words and passages had been cut out — a very descriptive cover for a book in which the author wants to convince his readers that the Constitution as it is now understood and enforced by the Supreme Court bears little resemblance to the original Constitution and Bill of Rights. Randy Barnett, professor of law at Boston University, here argues persuasively that key parts of the Constitution, especially the Ninth Amendment, have been virtually cut out, while others have been “interpreted” in ways so audaciously at odds with the intent of the Constitution’s drafters that the justices might as well have applied some Wite•Out and then rewritten the passages to their liking.
There have been a lot of books written on the Supreme Court’s nasty habit of turning the Constitution into a charter for the expansion of government rather than a barrier against it. What sets Restoring the Lost Constitution apart are two features: the remarkable depth of Professor Barnett’s research into the intended meaning of the document and his masterful argument that the proper analytical approach for jurists to take in constitutional cases is to employ a presumption of liberty.
That is, whenever the Constitution gives government the authority to act — which in Barnett’s originalist understanding is a very small subset of the enormous range of legislation and regulation we must now endure — courts should apply a demanding test to determine whether an enactment is really necessary and proper. Laws that infringe upon liberty should be presumed invalid unless the government can show that they are the least restrictive means of achieving their declared objectives.
“One thing is certain,” Barnett writes. “The original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court.” If the analytical approach he advocates were to be followed, the Constitution’s intended function as a guarantor of the people’s liberties against government encroachment would be restored.
Barnett opens with a question that hardly any contemporary legal theorists or philosophers would think to ask, namely, what makes government power legitimate? When statutes and regulations are enforced, what makes them morally binding on the citizenry? Or, putting things more sharply, what makes government different from a band of thugs and robbers?
After getting over the shock of that radical question, the typical American might answer, “Well, we have consented to be governed.” Barnett proceeds to demolish the consent argument, freely acknowledging his intellectual debt to that brilliant but overlooked philosopher Lysander Spooner. Not one of the various forms of the consent argument holds up — not voting, not the receipt of government benefits, not the decision to remain within a government’s jurisdiction. (Libertarians may be familiar with Barnett’s line of argument, but most nonlibertarians will be shocked to find out that the consent of the governed is just an assiduously cultivated myth.) People sometimes do consent to restrictions on their freedom, as is the case in many new residential developments, but in the absence of such actual consent, Barnett argues that government is legitimate only if it acts to protect the liberty of all.
Rights and the Constitution
For many years, the prevailing theory among jurists and scholars has been that the Constitution should be read as protecting only a few select rights that are enumerated in the text. The First Amendment rights, for example, have usually been vigorously protected through what the Court calls “strict scrutiny.” Under that standard, the government has an almost impossibly high burden of showing that any restriction on the protected freedoms is justified. Other rights, however — ones that the justices think less important, such as property rights and the freedom to contract as one desires — receive almost no protection. If someone challenges the constitutionality of a law that infringes upon property rights or contractual freedom (for example, the Fair Housing Act), the Court applies only minimal scrutiny, asking whether there might be some “rational basis” for the law. Because the Court has chosen to play favorites when it comes to rights and liberties, we have gone from the intended situation of “islands of government power in a sea of liberty” to the reverse.
If the drafters of the Constitution really wanted to protect rights against government encroachment, why didn’t they simply list all the ones they meant to protect? The answer is that the list of human rights is virtually endless. Barnett here quotes one of the earliest Supreme Court justices, James Iredell, in a speech to the North Carolina ratifying convention:
It would not only be useless, but dangerous, to enumerate a number of rights that are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
The forgotten Ninth Amendment
This is where the “lost” Ninth Amendment enters (or should enter) the picture. Barnett demonstrates beyond question that the reason for the Ninth Amendment — which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” — was to prevent the emergence of the kind of “some rights are more important than others” jurisprudence that we now have. Unfortunately, the Supreme Court went astray in the 19th century and became hopelessly lost in the 20th, ignoring the Ninth Amendment and establishing a hierarchy of rights in keeping with the “liberal” beliefs of the justices.
Barnett knows that his argument that the Court should use a reinvigorated conception of the Ninth Amendment, the “necessary and proper” clause, and the “privileges or immunities” clause of the Fourteenth Amendment to subject most laws to a high level of scrutiny will cause howls of protest from academics who accept the false dichotomy between “fundamental” rights and rights that the Court doesn’t care about. “He wants to bring back Lochner,” they will sneer. Lochner v. New York is one of the cases that every law student learns about, a 1905 decision that invalidated a New York statute that, among other things, restricted the number of hours that bakers were permitted to work in one day. The Court ruled that even if the legislature meant to “protect” workers with the statute, that objective did not justify the infringement upon freedom of contract. Most law professors say that Lochner was a terrible decision — an instance of unconscionable judicial activism where unelected judges imposed their will rather than allowing the democratically elected legislators to pass a law for the good of the people.
Our resolute author does not fear the criticism. He argues strongly that Lochner was correctly decided and then smashes the opposition with a point I have never come across before. During the Lochner era, the Court didn’t invalidate only supposedly “pro-labor” legislation on the grounds that it interfered with freedom, but it also invalidated some clearly anti-black legislation using the same legal analysis. Professors who keep mouthing the old “Lochner was bad” line are going to have egg on their faces if they happen to have any students who have read Restoring the Lost Constitution and aren’t afraid to discuss its powerful arguments.
So how would the Court rule if it adopted the Barnett approach? Here’s a tantalizing example:
The Presumption of Liberty would have no trouble affording protection to [the right to keep and bear arms] and requiring that all restrictions on gun possession and use be justified as necessary. Moreover, any effort to deprive the law-abiding citizenry of their right to possess firearms by confiscating their weapons or banning all firearms would be improper and unconstitutional despite any argument from necessity that could be made on its behalf. Any such measure would be a prohibition and not a reasonable and necessary regulation.
Possessory crimes would also fall. Adios, minimum wage, and sayonara, Fair Housing Act. Most of what government has done for the last century fails the presumption-of-liberty test.
This book reminds me of a great symphony on which the composer labored for years, poring over passages again and again to get them just right. Restoring the Lost Constitution is clearly the product of many years of research, thought, and writing by a legal scholar of the first magnitude. It throws down the gauntlet to a musty old theory of constitutional interpretation that ought to be discarded, like Dred Scott and Plessy v. Ferguson.
Statism won’t go down easily, but one of its key defenses — that it comports with the Constitution — has just been mauled.
This article was originally published in the January 2005 edition of Freedom Daily.
