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Why Care What The Constitution Says?
The Autonomist ^ | Randy Barnett

Posted on 04/10/2004 9:55:50 AM PDT by Hank Kerchief

 
Why Care What The
Constitution Says?

RESTORING THE LOST CONSTITUTION:
The Presumption of Liberty

by Randy Barnett

An Excerpt from the New Book

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 "pre-sumption 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 philosophi-cally 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.

Randy E. Barnett is the Austin B. Fletcher Professor at the Boston University School of Law and a senior fellow of the Cato Institute. He is the author of The Structure of Liberty: Justice and the Rule of Law and a winner of Laissez Faire Book's Lysander Spooner Award for Advancing the Literature of Liberty for his new book, Restoring the Lost Constitution: The Presumption of Liberty.

Restoring the Lost Constitution is available for purchase at Laissez Faire Books—delivering the highest value in books since 1972.


WHY CARE WHAT
THE CONSTITUTION SAYS?

by Randy Barnett

"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed." —JOHN MARSHALL (1803)

Had judges done their job, this book would not need to be written. Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten "police power" of the states. All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten.

Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they all had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers. Judicial redaction has created a substantially different constitution from the one written on parchment that resides under glass in Washington. Though that Constitution is now lost, it has not been repealed, so it could be found again.

All this has been done knowingly by judges and their academic enablers who think they can improve upon the original Constitution and substitute for it one that is superior. This begs the question: Why care what the Constitution actually says, as opposed to what we might prefer it to say (or not say)? Whatever may be in their hearts, many constitutional scholars write as though we are not bound by the actual words of the Constitution because those words are obstacles to noble objectives. One way to slip these bonds is to imply that the original Constitution is illegitimate by repeating the refrain that we cannot be bound by the "dead hand of the past" or by constantly invoking the various sins of the framers. By delegitimizing the original Constitution, such rhetoric seeks to free us from its constraints. Yet it is both curious and significant that few come out and admit this. Why this avoidance? Why not frank confession?

Perhaps because those who practice and advocate judicial amendment of the Constitution seek the obedience of the faithful and, were their delegitimation entirely successful, why would anyone obey the commands of a mere judge, much less a law professor, a philosopher, or a political scientist? Why obey the commands of the man or woman in a black robe, apart from the fact that disobedience is likely to land you behind bars in an extremely treacherous environment?

To openly challenge the legitimacy of the Constitution -- held sacred and regarded as authoritative by so much of the public -- would be to admit that there is no "man behind the curtain." Instead, by subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a judge or even a clever constitutional scholar can become the man behind the curtain. Pay no attention to that figure in the black robe or to that bookish professor; the great and powerful Constitution has spoken!

This is a fraud on the public. Imply but do not say aloud that the Constitution is illegitimate so we need not follow what it actually says. Remake it -- or "interpret" it -- as one wills and then, because it is The Constitution we are expounding, the loyal but unsophisticated citizenry will follow. This strategy also allows one to adopt a stance of moral superiority toward past generations without having to assume the responsibility of proclaiming that the document they wrote and by which the government rules is of no authority.

Because it is constantly under siege, the Constitution's legitimacy cannot be taken for granted. Unless we openly confront the question of its legitimacy, we cannot respond to those who would replace it with something they think is better. We will never know whether we should obey it, improve upon it, or ignore it altogether. In this book, I begin by asking and answering the question that others shy away from: Why should anyone obey the commands issued by persons who claim to be authorized by the Constitution?

I explain why the most commonly held view of constitutional legitimacy -- the "consent of the governed" -- is wrong because it is a standard that no constitution can meet. Holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. This result is paradoxical because, notwithstanding the great expansion of suffrage, any new and improved "interpretation" of the Constitution will also fail to be legitimated by the "consent of the governed." And this fiction turns dangerous when factions purporting to speak for "the People" claim the power to restrict the liberties of all.

Equally untenable is the principal alternative to the "consent of the governed": the argument that the benefits received by citizens from a constitutional order and a duty of fair play obligate them, in return, to obey laws regardless of whether they consent to them. By dispensing with any need for obtaining even the fictional consent of the governed, this alternative turns out to be even more dangerous to liberty. We can do much better.

I contend that lawmaking by real unanimous consent is both possible and pervasive, although not in the sort of polity governed by present-day constitutions. Even in the absence of such consent, however, laws can still bind in conscience if the constitution that governs their making, application, and enforcement contains adequate procedures to assure that restrictions imposed on nonconsenting persons are just (or not unjust). Such a constitutional order can be legitimate even if it was not consented to by everyone; and a constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority. Indeed, only by realizing that the "consent of the governed" is a fiction can one appreciate the imperative that lawmakers respect whatever may be the requirements of justice.

Although my thesis concerning legitimacy does depend on the claim that "justice" is independent of whatever may happen to be commanded by positive law, it does not depend on acceptance of any particular conception of justice. Regardless of what conception of justice one holds, constitutional legitimacy can be seen as a product of procedural assurances that legal commands are not unjust. Even those who reject the view of justice held by the founders, and which I have defended elsewhere, can accept this conception of constitutional legitimacy provided they also accept the proposition that justice is independent of legality. That is, that laws are not just solely because they are validly enacted.

To assess the legitimacy of any given legal system, however -- including the system governed by the Constitution of the United States -- requires both this procedural conception of legitimacy and a theory of justice by which to assess the adequacy of lawmaking procedures it employs. In short, while readers need not agree with the founders' or my conception of justice based on "natural rights" to accept the procedural conception of constitutional legitimacy I shall advance, they must produce and defend a conception of justice before they can pass judgment on the legitimacy of the Constitution. So must I.

To that end I will explain the founders' view that "first come rights, and then comes the Constitution." The rights that precede the formation of government they called "natural rights." I contend that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; and one that lacks adequate procedures to protect natural rights is illegitimate even if it was consented to by a majority.

The natural rights to which they and I refer are the "liberty rights" that, given the nature of human beings and the world in which we live, make it possible for each person to pursue happiness while living in close proximity to others and for civil societies to achieve peace and prosperity. It is precisely because the consent of the governed is impossible on a national scale that a constitution must provide protection for the preexisting rights retained by the people if the laws it sanctions are to create a duty of obedience in a nonconsenting public.

With this analysis of constitutional legitimacy and natural rights, we will then be in a position to understand why the words of the Constitution should be interpreted according to their original meaning and, where this meaning is incomplete or vague, how the inevitable gaps in meaning ought to be filled. Although I do not believe we are bound by the dead hand of the past, I will explain how, by committing ourselves to a written constitution, we commit ourselves to adhere to the original meaning of the text and any later amendments. In addition, original meaning must be respected so that those who are to govern by laws have little or no hand in making the laws by which they govern. We will also see that, where the original meaning is incomplete or vague, the text must be "construed," as opposed to "interpreted," in a way that enhances its legitimacy without contradicting the meaning that does exist.

It will then be time to examine the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce and the Necessary and Proper Clauses in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. We will also need to examine the nature and scope of the so-called police power of states -- a power that appears nowhere in the text of the Constitution and results from construction rather than interpretation.

Finally, I shall show how, when the meaning of these missing provisions is correctly understood, we can choose properly between two opposing constructions of the powers the Constitution delegates to government officials: Are all restrictions on the liberties of the people to be presumed constitutional unless an individual can convince a hierarchy of judges that the liberty is somehow "fundamental"? Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper? The first of these is called "the presumption of constitutionality." While this construction has never been accepted in its entirety, the exceptions that have been created to it are revealing in the way they run afoul of the text. The second of these constructions may be called the Presumption of Liberty, which can provide a practical way to restore the lost Constitution.

It is an open question whether the U.S. Constitution -- either as written or as actually applied -- is in fact legitimate. Intellectual honesty requires us to acknowledge the possibility that no constitution lacking unanimous consent is capable of producing laws that bind in conscience. Therefore, while the theory of constitutional legitimacy, the conception of natural rights, the method of constitutional interpretation, the interpretations of key clauses, and the Presumption of Liberty I advance here all raise serious questions -- is there any constitutional theory that does not? -- readers should think long and hard before rejecting them. For the alternative may be to admit that, when judges pronounce constitutional law, there really is no one behind the curtain and their commands are utterly devoid of binding authority.

We need not, I submit, reach this conclusion. The lost Constitution has not, after all, been repealed. It remains before our eyes and its restoration within our grasp. Once it is remembered in its entirety, the case for a constitutional Presumption of Liberty becomes compelling. But to restore, we must first remember.


COPYRIGHT NOTICE: Published by Princeton University Press and copyrighted, (c) , 2004 by Princeton University Press. All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher, except for reading and browsing via the World Wide Web. Users are not permitted to mount this file on any network servers. For more information, send mailto:permissions@pupress.princeton.edu


TOPICS: Constitution/Conservatism; Culture/Society; Government; Philosophy; Politics/Elections
KEYWORDS: bookreview; constitution; founders; randybarnett; rights
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Book Review
1 posted on 04/10/2004 9:55:50 AM PDT by Hank Kerchief
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To: Fzob; P.O.E.; PeterPrinciple; reflecting; DannyTN; FourtySeven; x; dyed_in_the_wool; Zon; ...
PHILOSOPHY PING

(If you want on or off this list please freepmail me.)

Hank

2 posted on 04/10/2004 9:57:18 AM PDT by Hank Kerchief
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To: Hank Kerchief
WHY CARE WHAT THE CONSTITUTION SAYS?

Yea...if we did care we wouldn't have the IRS or the federal reserve or CFR or.......

3 posted on 04/10/2004 10:06:15 AM PDT by patriot_wes
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To: Hank Kerchief
The United States Constitution has been prostituted by
a liberal-left-wing judiciary. When and if our wimpy
congress decides to hold them accountable, it will get
even worse! I'm for federal judges given a report card
Three strikes and their out. Presently, there is a huge imbalance of the separation of powers.
4 posted on 04/10/2004 10:25:52 AM PDT by Smartass (God Bless America and Our Troops - Bush & Cheney in 2004)
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To: Hank Kerchief
I know some Freeps don't like him, but Robert Bork's The Tempting of America: The Political Seduction of the Law" should be required reading.
5 posted on 04/10/2004 10:32:59 AM PDT by Richard Kimball
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To: Smartass
" ... hold them accountable, ..."

Um, the US Senate did such a wonderful job in holding klintoon accountable ...

Political expediency versus Truth, Justice, and the American Way.

6 posted on 04/10/2004 10:33:56 AM PDT by jamaksin
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To: jamaksin
Your right. I just didn't want to use the word joke!
7 posted on 04/10/2004 10:37:49 AM PDT by Smartass (God Bless America and Our Troops - Bush & Cheney in 2004)
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To: Hank Kerchief
Most judges don't give a kitty what's in the Constitution and more than likely have never read the Constitution.
8 posted on 04/10/2004 10:50:04 AM PDT by lilylangtree (Veni, Vidi, Vici)
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To: Hank Kerchief
1st Amendment: dead (religion and free speech)
2nd Amendment: long since dead
3rd Amendment: alive
4th Amendment: recently deceased (warrantless "safety" searches)
5th Amendment: dead from multiple causes
6th Amendment: critical (SCOTUS is reconsidering Hearsay Exceptions>
7th Amendment: condition uncertain
8th Amendment: condition uncertain
9th Amendment: died with the 10th
10th Amendment: died with the 9th

So what's the fix?

9 posted on 04/10/2004 10:58:44 AM PDT by Clint Williams
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To: Hank Kerchief
The author, imo, -- 'buries' his points:

______________________________________


"I contend that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; --

-- and one that lacks adequate procedures to protect natural rights is illegitimate even if it was consented to by a majority.



Are all restrictions on the liberties of the people to be presumed constitutional unless an individual can convince a hierarchy of judges that the liberty is somehow "fundamental"?

Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper?

The first of these is called "the presumption of constitutionality."
While this construction has never been accepted in its entirety, the exceptions that have been created to it are revealing in the way they run afoul of the text.

The second of these constructions may be called the Presumption of Liberty, which can provide a practical way to restore the lost Constitution."


_____________________________________



Fine.. I too can agree:

"that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; --

But object that if:

"-- any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper --- "

-- As it is not only up to the judges, -- but to fully informed juries of our peers to decide if our liberties are unconstitutionally restricted, in the particular case at hand.



--- All trials should be held under a "Presumption of Liberty" doctrine, which really could "provide a practical way to restore the lost Constitution."

Do you know if the author even addresses the role of juries in setting constitutional precedence?
10 posted on 04/10/2004 11:09:28 AM PDT by tpaine (In their arrogance, a few infinitely shrewd imbeciles attempt to lay down the law for all of us.el)
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To: Richard Kimball
Bork is a prime example of a judge who ignores what our Constitution really says, -- in favor of what a moral majority wants it to say..




11 posted on 04/10/2004 11:15:46 AM PDT by tpaine (In their arrogance, a few infinitely shrewd imbeciles attempt to lay down the law for all of us.el)
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To: Clint Williams
The fix is somthing most people are really squeamish talking about.
12 posted on 04/10/2004 11:17:22 AM PDT by TLI (...........ITINERIS IMPENDEO VALHALLA..........)
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To: Clint Williams
So what's the fix?

Return to the Articles of Confederation.

Hobble and muzzle the beast.

Starve it into weakness.

Just like a fish, given food and space, it'll just keep growing.

When we believed we might trust those who, like remoras, fed on its leavings to restrain it, were we ever wrong.

13 posted on 04/10/2004 11:34:19 AM PDT by yatros from flatwater (Patrick Henry Proved Prescient!)
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To: Hank Kerchief
"Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper?"

Yes, restrictions if and only if necessary to further a compelling proper governmental interest.

The only proper governmental interest as I recall, is to secure the unalienable rights and the blessings of liberty for the governed, with the consent and participation of those governed.

So, IMHO, restrictions on liberty are fine, but only if such restrictions are compelling, and only if they would actually help further secure our rights and enlarge the scope of liberty for everyone.

Restrictions beyond this narrow exception illegally countermand the Constitution and Declaration of Independence -- they tyrannically countermand fundamental American law.

Therefore, most of the accrued "legal" restrictions on our liberty will have to be repealed or held void.
14 posted on 04/10/2004 11:34:41 AM PDT by Unknowing (Now is the time for all good men to come to the aid of their country.)
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To: Hank Kerchief
This debate never ends. There is always somebody that wants to change or ignore the Constitution, or misread it to suit the issue of the moment. These interpreters come from the Left, the Right, the Bush Moderate Compassionate Middle, and radicals at anarchists' secret meetings in suburban basements.

When the Constitution goes, the country will go with it.

15 posted on 04/10/2004 11:50:29 AM PDT by RightWhale (Theorems link concepts; proofs establish links)
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To: Clint Williams
What's the fix? When we get mad enough to do something about it it might get fixed. That may never happen.
16 posted on 04/10/2004 12:22:58 PM PDT by Jack Black
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To: RightWhale
Oh I think the country will go first. The Constitution, as a 'living breathing document' and as a sacred relic will continue to be sighted as the source of, justification for, and protection against the tyrany we are surely slipping into. Long after there is any pretext of liberty in Ameica politicians will still be bleating on about the Constitution. Bet on it.
17 posted on 04/10/2004 12:26:07 PM PDT by Jack Black
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To: Jack Black
It does appear that the country is coming to an end. It is amazing it has lasted so long, and doubly amazing it has done so well. America will live on in bedtime stories. Like Atlantis.
18 posted on 04/10/2004 12:30:47 PM PDT by RightWhale (Theorems link concepts; proofs establish links)
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To: Unknowing
Well said.
19 posted on 04/10/2004 12:34:10 PM PDT by tpaine (In their arrogance, a few infinitely shrewd imbeciles attempt to lay down the 'law' for all of us.)
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To: Hank Kerchief; Admin Moderator
I don't mean to be picky, but considering all the copyright problems we've been having, maybe we need to check this again . . .

COPYRIGHT NOTICE: Published by Princeton University Press and copyrighted, (c) , 2004 by Princeton University Press. All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher, except for reading and browsing via the World Wide Web. Users are not permitted to mount this file on any network servers. For more information, send mailto:permissions@pupress.princeton.edu
20 posted on 04/10/2004 12:35:47 PM PDT by An.American.Expatriate (A vote for JF'nK is a vote for Peace in our Time!)
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