Restoring the Lost Constitution

The Presumption of Liberty

10/1/2005

By Randy Barnett

Princeton University Press 2005 Hardcover Buy here

Book Review
Reviewed by Irina Manta

Constitutional interpretation is one of the most frequently covered topics in the legal canon. Readers have grown weary, however, of tirades against originalist interpretations of the Constitution or extolments of nearly absolute legislative power. They will be pleased to discover the refreshing perspective that Boston University School of Law professor Randy Barnett offers in "Restoring the Lost Constitution: The Presumption of Liberty." His book marks a sharp break with the norms of legal academia and thus provides a long-awaited antidote to the ailing field of constitutional law.

Barnett's project is nothing short of extraordinary: to provide a framework that explains the very legitimacy and history of the Constitution, to elucidate the way in which the written document has been gradually eradicated through the Supreme Court's selective ignoring of fundamental clauses such as the long misunderstood Ninth Amendment, and to detail how to practically implement a theory of interpretation that accounts for the whole text. The model of constitutional interpretation that he proposes allows for a broader understanding of citizens' rights and demands that courts adopt what he terms a "Presumption of Liberty." Implementing this standard would have significant ramifications on the American legal system, forcing courts to break with the modern presumption of constitutionality typically used to evaluate statutes and demanding that legislatures meet a more stringent standard before restricting rights.

The author begins his extensive work with the seemingly easy question of whether the Constitution is binding on us. Almost immediately he rejects the idea that its legitimacy originated in the "consent of the governed." There was never actual individual consent - after all, not every individual agreed to the document before it became the law of the land. Majoritarianism in itself will always fall short of providing individual consent, and thus the belief that popular sovereignty, which is embodied in the Preamble's "We the People," legitimates the Constitution is an illusory fiction. Barnett further contends that neither voting nor residency patterns can be made to imply personal consent to a particular legal outcome. In the case of voting, for instance, an individual's act could only be considered consent if there were also a potential way for him not to consent, which is impossible given that adherents of majoritarian theories construe the decision not to vote as silent consent to the outcome! From there, Barnett extrapolates that we are also not bound by the consent of the Founders; after all, we never had a chance to say "no" to their decision to ratify the Constitution. In short, "inferring the consent of the minority or of the individual from the consent of the majority" is impossible.

Barnett continues to show, however, that not only is "We the People" a fiction, but it is a dangerous one at that. "When power is given to majorities operating through their representatives," he argues, "the interest of majorities becomes a greater source of danger to minorities and to the general welfare under popular government than under other forms." Using a plethora of historical evidence, the book explains the Founders' fear of unchecked majoritarianism and how this apprehension motivated them to create a unique constitutional structure balancing democratic rule and the preservation of individual liberty. The author sides with the Founders, claiming that a system based on the idea of popular sovereignty alone has the risk of allowing "a legislature to justifiably do anything it wills," including infringe on people's rights. According to Barnett, this is precisely what unjustified legislative reliance on the fiction of popular sovereignty and improper constitutional interpretation by the courts have achieved throughout American history.

With majoritarian theories debunked, what legitimates the Constitution? Barnett writes that it can still be legitimate and bind people's consciences if it ensures the validation of just laws, whose "restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed." Despite the tendency of today's legal academia to deride justifications of legitimacy rooted in natural rights, the author makes no qualms about his view. He does specify, however, that readers need not agree with his "particular defense of natural liberty rights retained by the people to accept these rights themselves" and to "view the Constitution as legitimate if it provides adequate procedural assurances that enacted laws properly respect the rights of those on whom they are imposed and are necessary to protect the rights of others."

Even among those who concur that the Constitution is legitimate, however, there is significant disagreement over what is the proper method of constitutional interpretation. Barnett's framework uses a form of originalism that searches for the "original meaning" of the text rather than the "original intent" of the Founders. The former type of originalism, Barnett writes, "is warranted because it is the best method to preserve or ‘lock in' a constitution that is initially legitimate because of what it says." To determine original meaning, he draws upon sources such as records of ratifying conventions and newspapers from that time. When discussing the criticisms of originalism, Barnett warns against dismissing this method on the grounds that it does not allow one to judicially cure perceived constitutional defects: "[I]f the original meaning of the Constitution is not ‘good enough,' then originalism is not warranted because the Constitution is itself defective and illegitimate. This represents a rejection of the Constitution, not a rejection of originalism per se. Whatever is put in its place is not the Constitution, however much an improvement it may be."

Nonetheless, Barnett is aware of the limits of a search for original meaning, which derive from the inherent vagueness of language, and offers ways to supplement original meaning through constitutional construction. To use original meaning alone in a particular instance of interpretation, such meaning must be ascertainable from affirmative historical evidence and not authorize supplementation. If these conditions are not met, "a constitutional construction should be adopted that (a) is consistent with the original meaning of the text that can be determined and (b) enhances constitutional legitimacy."

Moving on to the topic of judicial review, Barnett presents a model that includes the power of judicial nullification. He writes: "A power of nullification is not one of supremacy, but one of judicial equality. Were it absent, the legislative and executive branches alone would decide on the constitutionality of their laws. Judges would have to merely take their orders. This would render the judiciary inferior to the other branches rather than their equal." One of the greatest questions, in the author's opinion, is how much deference courts owe to legislatures in deciding whether to nullify laws. To answer how courts should review federal laws, Barnett provides a detailed explanation of the provenance and meaning of the Necessary and Proper Clause. He concludes that if one believes from the evidence that the word "necessary" only means convenient or useful, as Justice Marshall believed in the landmark case McCulloch v. Maryland that examined the constitutionality of establishing a national bank, then courts can generally not question a legislative decision. Courts should intervene, however, if one thinks that "the clause requires (a) a showing [that the legal means fit the ends] - as per Madison, Jefferson, and even Hamilton - together with a showing that (b) the means chosen do not prohibit the rightful exercise of freedom (or violate principles of federalism or separation of powers) and (c) the claim by Congress to be pursuing an enumerated end is not a pretext for pursuing other ends not delegated to it."

The author also examines how judicial review should be applied to state laws. In doing so, he sheds new light on cases such as the greatly criticized Lochner v. New York, which rejected many parts of a statute regulating the operation of bakeries for infringing on the liberty of employer and employee to make and enforce contracts. The author explains that in Lochner and similar cases, the so-called Progressive Era Supreme Court "began to require proof that both federal and state legislatures restricting the retained liberties of the people were actually pursuing a legitimate purpose rather than merely purporting to do so." While many claim that the New Deal Court's rejection of Lochner represented a "restoration" to old principles of constitutional interpretation, Barnett emphasizes that it rather corresponded to "a constitutional revolution." This rejection most notably occurred in Footnote Four of United States v. Carolene Products Co., a case which examined the restrictions on the sale of a milk substitute. Barnett explains the demands of the most famous footnote in constitutional history as follows: "Adopt a loose conception of necessity and presume all acts of legislatures to be valid, except when an enumerated right listed in the Bill of Rights is infringed (or when legislation affects the political process or discrete and insular minorities), in which event the Court will employ a strict conception of necessity and put the burden on legislatures to show that their actions were both necessary and proper."

The Footnote Four framework of constitutional interpretation remained in place until the decision in Griswold v. Connecticut, which concerned a state statute that criminalized the use of contraceptives. By declaring that the statute violated the right to privacy, a right not enumerated in the Constitution, Griswold replaced the old system with one often known as "Footnote Four-Plus." This new understanding, Barnett writes, meant: "No longer would the liberty rights that justify reversing the presumption of constitutionality be strictly limited to those that are specifically enumerated," but "some judicially favored unenumerated rights could also be used to shift the burden to the government to justify its restrictions on liberty." The author explains that while Footnote-Four Plus takes the idea of unenumerated rights of the Ninth Amendment more seriously than its predecessor, it forces judges to "pick and choose" which unenumerated rights should receive a presumption of constitutionality and which should not.

In one of the most crucial portions of his book, Barnett dismisses both Footnote Four and Footnote Four-Plus for infringing on the Ninth Amendment by "disparaging the liberties and rights retained by the people." Presenting both the history of the Amendment and the views of its skeptics, the author concludes that its text mandates "that unenumerated rights be treated the same as those listed." The way to respect this idea is to adopt what Barnett calls a "Presumption of Liberty," which "places the burden on government to establish the necessity and propriety of any infringement of individual freedom." Such a Presumption would acknowledge that the Constitution does not distinguish between fundamental rights and liberty interests because the Ninth Amendment specifies that a right cannot be "denied or disparaged just because it is unenumerated." Barnett's method would no longer allow judges to choose which liberties to protect as fundamental and would require legislatures to put greater thought into the necessity of laws before enacting them. It would also conform to the idea that the Constitution established, Barnett writes quoting Princeton professor Stephen Macedo, islands of powers "surrounded by a sea of individual rights" rather than "islands [of rights] surrounded by a sea of governmental powers."

The last part of the book discusses the propriety of federal and state laws, how to evaluate whether proper measures are also "necessary," and how the Presumption of Liberty might function in specific cases or questions. The chapter on federal power mainly focuses on the meaning of the Commerce Clause, which has historically been used to justify a sweeping number of regulations. Barnett presents an impressive amount of historical research about the original meaning of the words critical to the Clause such as "commerce" and "regulate" and concludes that a narrower definition of those terms should be adopted than has been commonly believed, which "would not reduce the scope of government power over private activity but would merely shift power from the national to the state governments." At the end of his subsequent examination of state powers, Barnett notes that a Presumption of Liberty "puts the burden upon states to justify any interference with liberty as both necessary and proper," but also allows states to pass laws that are "merely regulating liberty in a way that protects the rights of others."

Barnett provides some examples of how the Presumption of Liberty might be applied, while clarifying that the potential outcomes he presents for specific cases should not play an overly significant role in one's decision whether to adopt his framework of interpretation. One hypothetical he gives as an example of the state's proper use of its police power is a prohibition against driving under the influence of alcohol: neither driving cars nor drinking alcohol should be prohibited, but disallowing driving under the influence is proper because it is an activity that "can create an unreasonable risk of violating the rights of others."

In the end, the author claims that to truly "test whether a constitutional construction is a genuine rule of law, we must ask whether it ever leads to outcomes its proponents dislike but must live with nonetheless." He suggests the case of interstate pollution, which he does not think the federal government can constitutionally regulate but perhaps should be able to. Nonetheless, he claims that courts should not undermine the "‘lock-in' feature of a written constitution" by artificially trying to fit such a regulation into the Commerce Clause. "Far better would it be to enact a constitutional amendment, which in this case would be easily proposed and swiftly ratified, that grants Congress the power ‘to regulate harmful emissions having an interstate effect.'" Passing such an amendment rather than departing from originalism would legitimize the Constitution further, while "[i]gnoring the Constitution here where it is imperfect would create a very real danger that, in other cases, the legislature will be allowed to violate rights by means of improper laws." Barnett closes by summarizing how many constitutional clauses have been "lost" over time and reiterating the hope that they can be restored to their proper place.

Randy Barnett's book will prove of great interest both for constitutional scholars and the lay public. Eminently readable, the work is structured such as to follow a clear thread throughout while providing brilliant insights in each particular section. Barnett's use of historical evidence is particularly noteworthy, especially in his discussions of the Ninth Amendment and the Commerce Clause. He challenges other scholars to falsify his theories through evidence of their own and is not afraid to directly, and successfully, address his opponents' counter-arguments. The few weaknesses of the book are largely present in any work of such ambitious scope. Certain topics cannot be fully covered; particularly, some aspects of Barnett's theory of natural rights would need to be solidified more to convince fully. The book, however, does not purport to focus primarily on philosophy, and its uses of history and legal logic are nearly impeccable.

Whether they agree with Barnett or not, scholars with integrity cannot afford to ignore such a controversial, intelligent, and well-researched book. It is rare that a work comes along that casts doubt over almost everything we thought law school had taught us about the Constitution. "Restoring the Lost Constitution: The Presumption of Liberty" is that work.