[tpaine]

The author, imo, -- 'buries' his points:

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"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."


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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?

[Hank Kerchief]

The author, imo, -- 'buries' his points

That is my impression also. I think it is the "academic" thing.

Do you know if the author even addresses the role of juries in setting constitutional precedence?

I do not. Are you referring to "jury nullification?"

Hank