A Libertarian Constitution

A review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett

Randy Barnett is one of the legal academy's leading libertarian theorists. His latest book is an exceedingly ambitious effort to show that the United States Constitution, rightly understood, protects individual liberty to a far greater extent than the Supreme Court has ever recognized.
Through a complex series of arguments, Barnett attempts to demonstrate that the Constitution requires courts to adopt what he calls a "Presumption of Liberty," which should lead them to nullify every law abridging any of an open-ended class of natural rights unless the government can demonstrate that the law meets stringent criteria of necessity and propriety.

Restoring the Lost Constitution advances three main theses. First, Barnett presents a theory of legitimacy, arguing that laws are "binding in conscience" only if there is a sufficient reason to believe that they do not unnecessarily, or improperly, violate the natural rights of the governed.

Second, he maintains that the Constitution requires courts to protect these natural rights by invalidating all federal laws that unnecessarily or improperly abridge them.

Finally, he contends that the Constitution also requires the same aggressive judicial approach to state laws that it requires with respect to federal laws.

Because I shall criticize some crucial elements in Barnett's argument, I should emphasize at the outset that this intelligent, thought-provoking book deserves to be read carefully by anyone who believes that the Constitution is a higher form of law than Supreme Court decisions.

As the Declaration of Independence announces, and as other evidence confirms, there was a broad consensus among the founding generation that the principal purpose of human government is to secure certain inherent or natural human rights.
The most obvious reflections of this consensus in the Constitution itself are the limited grant of enumerated powers to Congress, the separation of powers, and the enumeration of several individual rights.
In addition, Barnett believes, the judiciary has been commanded to identify and protect a vast, unenumerated body of natural rights by the 9th Amendment, which provides: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Because he thinks this provision establishes a constitutional Presumption of Liberty, Barnett vigorously objects to the Supreme Court's consistent refusal to rely on the 9th Amendment in deciding cases.

The 9th Amendment is a companion to the 10th Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
As the 10th Amendment affirms that the Constitution's enumeration of powers is exhaustive, so the 9th Amendment affirms that its enumeration of rights is not exhaustive. This makes perfect sense because individual rights and government authority are correlative: if a government does not have the authority to issue certain commands to its citizens, they have a right not to be subjected to those commands by that government.

Thus, the 9th and 10th Amendments together serve as an emphatic, and indeed justiciable, reminder that the Constitution protects a vast number of unenumerated rights from infringement by the federal government, namely all those rights that the federal government is not authorized to abridge in the exercise of its enumerated powers. Some of them may be natural rights, some are positive rights established by state law, and some are political rights exercised in the course of establishing state law. The language of the 9th Amendment does not give a privileged status to any one of these categories of rights.

Two principal sources of the vast expansion of federal power have been the Commerce Clause and the so-called Sweeping Clause: "The Congress shall have Power…. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The Supreme Court has interpreted these provisions to allow Congress to regulate or prohibit virtually any commercial activity, including wholly intrastate activities, and a vast range of non-commercial activities as well. The Court's theory, in a nutshell, is that such activities may "affect" commerce among the several states and that it is therefore necessary and proper for Congress to control them.

Barnett provides a detailed demonstration that this theory is a departure from the original meaning of the Constitution, and he offers a number of thoughtful and generally plausible suggestions about how best to construe and apply the Commerce and Sweeping Clauses. If the Court were to accept something reasonably close to the original meaning of these provisions, the federal government would have a lot less power than it exercises today, and the people would correspondingly have much more freedom from federal interference in their lives.

The most radical thesis in Barnett's book is that judges are charged by the Constitution with protecting a vast range of unenumerated natural rights from interference by state law.

Barnett also has a different, and somewhat more plausible basis for concluding that the Constitution commands judges to protect natural rights from state interference.
The 14th Amendment provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…." Barnett argues that these privileges and immunities are the very same natural rights that he thinks are also protected by the 9th Amendment, a conclusion that he rests primarily on evidence from the legislative history of the 14th Amendment.
He vigorously attacks the Supreme Court's contrary interpretation, and especially the landmark 1873 Slaughterhouse decision, which held that the only privileges and immunities protected by this clause are those peculiarly attributable to national citizenship, like the right to travel to the national capital.

Even if one accepted Barnett's claim that the 14th Amendment was meant to authorize judges to nullify state laws that abridge certain unenumerated substantive rights, one would still have to ask how judges are supposed to identify these rights.
Barnett's answer is that everybody has a presumptive right to engage in any conduct that does not interfere with the rights of other persons, unless the government can show that a specific regulation is needed to facilitate everyone's exercise of the right.

The privileges and immunities protected by the 14th Amendment, Barnett maintains, can be identified by looking at state common law. This cannot be right.
The common law is a collection of rules adopted by judges in the course of deciding cases that are not covered by a state constitution or statute. These rules vary somewhat from state to state, and they can be altered or abolished in any state by its legislature. Because the 14th Amendment expressly imposes a restriction on state law, the substance of what it protects cannot possibly be determined by state law (unless the Privileges or Immunities Clause is only an anti-discrimination provision rather than a substantive guarantee, an interpretation that Barnett implicitly rejects).

While Barnett notes, accurately enough, that state common-law judges constantly make decisions distinguishing rightful from wrongful conduct, he neglects the significance of the fact that they are always doing so in the shadow of the state legislature's plenary authority (which is frequently exercised) to alter or preempt those decisions by statute. If these common-law decisions were suddenly to become the unalterable determinants of the rights protected by the 14th Amendment, state judges would be elevated to the role of philosopher-kings.
Yet, if the distinction between rightful and wrongful conduct were defined by the common law as altered or preempted by state statutes, the Privileges or Immunities Clause would place no constraints at all on state governments, which would make an absurdity of the 14th Amendment provision.

Elsewhere, the book takes a different approach to identifying the relevant privileges and immunities. Courts and commentators have long assumed that the Constitution leaves largely intact something called the "police power" of the state governments, which is a general authority to regulate and govern the citizenry. Barnett suggests that 14th Amendment privileges and immunities are those rights not subject to this power.

But what exactly is the police power's scope? It is never mentioned, let alone defined, in the Constitution. Barnett articulates and embraces what he calls a Lockean theory of the police power, but his only authorities for imputing this theory to the Constitution are judicial decisions and academic commentaries. And even those authorities generally give the states much more discretion to abridge people's liberties than Barnett is willing to allow. It is perfectly obvious that the states would be well advised to limit government power and protect important individual rights in their state constitutions.
In fact, all the states have done just that, though not to the extent that Barnett thinks they should. Whatever the merits of his view of the proper scope of government power, and whether or not his is a correct interpretation of Locke, showing that the Constitution enacted his view into law would require far more evidence than Barnett provides.

Restoring the Lost Constitution is an impressive attempt to demonstrate that our written Constitution enacted into law a sweeping and highly libertarian theory of natural rights and limited government.
I have passed more lightly than I would have liked over Barnett's attractively coherent analytical approach, which contrasts with the frequently sloppy Supreme Court opinions that our legal system treats as the authoritative expression of constitutional law. It is sad how much of our fundamental law has gotten lost beneath an obscuring blanket of Supreme Court decisions, and Barnett's effort to recover the lost Constitution is a noble undertaking, even if it is not completely successful.

Voting Libertarian is not going to shake up the Republican or Democratic parties for a long time to come. Voting for the Libertarian Party to bring about any kind of positive change in America today is a wasted vote as they are way to under represented in the intellectual and social activist class

Why not look at a real world example. Costa Rica was mired in socialism. The left and right had become virtually the same...Big government socialism. I see the same situation here. A handful of men brought the Libertarian Party to Costa Rica. In less than a decade they were able to raise the LP into the mainstream. They haven't won total control, but they have forced the left and right to listen to the will of the people. People were fed up with the Nanny State and the broken promises of corrupt politicians.

I don't agree. I would say most libertarians have never been a member of any party. The second largest number of libertarians have probably been members of the Democratic Party.

The Republican Party was libertarian before there was a Libertarian Party. The RP began its slide to the left during the Great Depression when FDR convinced America that socialism could cure our ills. Democrat politicians slurred Republicans as libertines the same way I see many "conservatives" slurring libertarians on FR now. Libertarians are small government capitalists. You don't find libertarians in the Democrat Party.
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To damage another is immoral. The damage done to oneself is between that one and God. For government to determine morality in this area is that government playing God.

Says who? Why is it not immoral to damage oneself? Why is it not playing God to determine morality in cases where one damages another?

If a man can compel the public to specific action on his part when he harms himself, the public can rightly regulate his private actions.

Only if he tries to harm himself.

God's law is negative, that is to say, that which one cannot do, with the implication at all else one can do.

God forbids many things which have nothing to do with harming others.

Says who? Why is it not immoral to damage oneself? Why is it not playing God to determine morality in cases where one damages another?

You damage yourself in innumerable ways every day of your life. Your body belongs to you. If it doesn't, then tell me to whom it belongs?

God's law makes no mention of damage to yourself, unless it be to your immortal soul, or your otherwise relationship with Him.

The moral guide found in His Word is what we call the Golden Rule, spoken by Jesus in both Matthew and Luke. Transgression thereof is immoral. There is no way to apply the golden rule to yourself without respect to others.

We have two kinds of laws, malum in se, that which is wrong in itself and malum prohibitum, that which is wrong only because of a law. The malum prohibitum law is enacted under the states' police power, and severe strictures, none of which strictures are followed today.

These are the "crimes" you say exist that harm no one. That they exist is no way means they are right, only that a constituency, not a majority, with money and political influence got them enacted.

The government has otherwise no constitutional pathway into the private practice of a citizen, for the state is the people thereof and the constitution created the "government".

Only if he tries to harm himself.

And the only place that is valid at all is in a socialism which is by definition Godless but for the state.

God forbids many things which have nothing to do with harming others.

Possibly. I don't know everything. Show me.

If it doesn't, then tell me to whom it belongs?

God.

so-called "victimless" crimes (e.g. prostitution) are not crimes simply because they have been made illegal. Indeed, they are crimes because they are wrong.

I don't believe that every law that is enacted is right, even if it is passed using a moral justification, but I do believe that some "victimless" crimes are wrong, such as prostitution.

You want to ascribe a socialist justification to such laws, but I certainly haven't. Laws designed to protect an individual from himself need not be justified by any collectivist argument.

Since all those powers which are not reserved to the federal constitution are those of the states (or the people), then the states have the power to restrict such activities. Do you really believe the founders thought otherwise?

God.

But not the government.

so-called "victimless" crimes (e.g. prostitution) are not crimes simply because they have been made illegal. Indeed, they are crimes because they are wrong.

Prostitution is malum in se, how? malum in se addresses acts that damage others, like killing, theft and fraud. Now, it can spread STDs, and for that proven purpose it may be prohibited under the states' police power.

I'll note here that abortion is the arbitrary killing of a human being, allowed by Roe v Wade using the 14th amendment purview through the 9th amendment, whatever the hell that means.

However, mandatory testing of prostitutes can take it out of the police power. That leaves God's prohibition of selling a natural gift of His nature for being fruitful and multiplying. That is between the prostitute and God.

You want to ascribe a socialist justification to such laws, but I certainly haven't. Laws designed to protect an individual from himself need not be justified by any collectivist argument.

Yes, it is. Laws that protect an individual from himself, made by fallible human beings subject to corruption are open to abuse and the seeking after money and power, not the good of the individual.

Under our system of law, only under a socialist presumption can a law against a human being damaging his own body, with no clear proof that it damages society, exist. The golden rule does not apply to one's self without respect to others.

I agree here. The states are subject to much more public scrutiny and affect than the federal government. I am willing to place all malum prohibitum law there. But it is not. Much of it is federal (or the national character of federalism).

malum in se addresses acts that damage others

Says who?

Malum in se - An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder. See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).
Malum Prohibitum - An act which is immoral because it is illegal; not necessarily illegal because it is immoral. See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).

Prostitution is illegal because it is immoral. Malum prohibitum refers to things like traffic laws, which the violation of are not really immoral in and of itself, but only because they've been prohibited. Prostitution is immoral in and of itself.

Consensual crime - "...while the definition here bears some superficial resemblance to the legal concept malum prohibitum ("bad because prohibited", as opposed to malum in se, "inherently bad"), these crimes are legally considered malum in se, because it is expected that all members of the culture correlating with the state know that these acts are forbidden in that culture."

Laws that protect an individual from himself, made by fallible human beings subject to corruption are open to abuse and the seeking after money and power, not the good of the individual.

This is a criticism of the misuse of the law, not the law itself. Any law can be misused. We can fight corruption without overturning the law.

Under our system of law, only under a socialist presumption can a law against a human being damaging his own body, with no clear proof that it damages society, exist.

No, attempting to prove that it damages "society" is a socialist presumption. Laws against individual damaging themselves are not.

Tailgunner joe wrote:

Joe, the founders thought & wrote exactly that in Article VI. States do not have the power to ignore the US Constitution, - "notwithstanding" anything in their own Constitutions.

William Terrell wrote:

Neither States nor Feds were given the power to write prohibitive types of law that infringe upon individual rights to life, liberty, or property.
This point was clarified by the 14th amendment; -- then immediately ignored once again.

The Republican Party was libertarian before there was a Libertarian Party... Libertarians are small government capitalists. You don't find libertarians in the Democrat Party.

The Republican Party was never libertarian in the slightest. The fact that a few republicans hold a few high priority positions in common with libertarians, does not make them libertarians. Libertarians are so much more than "small government capitalists" that saying such amounts to a gross inaccuracy. Additionally, a rather large minority of libertarians reject "small government capitalism." Libertarian democrats are harder to identify because of different priorities which force them to place Democratic Party unity to stop the Republican Party, ahead of many of their libertarian interests. A slightly similar kind of reasoning can be found among libertarian republicans. I wish the best for both at teaching libertarianism with in their respective parties.

Joe wrote:

Prostitution is illegal because it is immoral.
Malum prohibitum refers to things like traffic laws, which the violation of are not really immoral in and of itself, but only because they've been prohibited.
Prostitution is immoral in and of itself.

"Criminal offenses can be broken down into two general categories -- malum in se and malum prohibitum.

The distinction between malum in se and malum prohibitum offenses is best characterized as follows:
a malum in se offense is "naturally evil as adjudged by the sense of a civilized community,"
whereas a malum prohibitum offense is wrong only because a statute makes it so.

State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905)

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According to joe the State of Nevada, and many local governments, are tolerating 'naturally evil acts' of prostitution. Woe is us.

Could be true, but I'm an old man and I have never met a libertarian who was a democrat. Maybe it's different where you live.

I worded my comment wrong about the RP being libertarian. What I meant to say was that libertarians belonged to the Republican Party before there was a Libertarian Party. The LP has been a one man show and even now more libertarians are RP than LP. Just the same, Republicans were smeared as libertines during the FDR administration. Republicans opposed marijuana prohibition in 1937 and were raked over the coals for that by the socialists.
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There is no need to go down the road of the 9th amendment and all that.

We simply need to restore the 10th, and enumerated powers. And maybe repeal teh 14th.

Then, states have inherent power to do as they please. Many state constitutions have good libertarian provisions on religion, guns, etc.

But most importantly, if you don't like what you find in a state you can cross state lines. And then we don't get the fed doing all the fed stuff it does now, ie, fed gov will be reduced by like 95%.

That is more than libertarian enough for anyone...and is more tapped into our constitutional history than the natural rights stuff.

Says who?

Sez your definition. Isn't an act that damages others an "innately immoral act"?

An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder.

"Examples include adultery, theft, and murder". Prostitution is not mentioned, but mentioned are all acts that harm another.

This is a criticism of the misuse of the law, not the law itself. Any law can be misused. We can fight corruption without overturning the law.

The law (not statute) against murder can be abused?

No, attempting to prove that it damages "society" is a socialist presumption. Laws against individual damaging themselves are not.

I'm wondering. How can you even discuss these things with me? You appear to know what you're talking about. I'm no lawyer, by I have studied cases and treatises on the law.

Attempting to prove an act or possession article is a clear and present danger to the health, welfare and safety of the people of a state is an ancient exercise of a political unit's police power.

It is specifically for statutes that regulate beyond acts that harm another. Acts that harm another are covered automatically by malum in se law, which is, predominately, common law. (The term "law" means "common law", in case you didn't know. Statutes are under color of law).

Neither States nor Feds were given the power to write prohibitive types of law that infringe upon individual rights to life, liberty, or property.

Under the states' police power, even a right can be regulated, so long as that right is not regulated away. Examples are doctors and lawyers. Anyone has the right to become a doctor or lawyer, but since these professions can damage a person severely by their incompetent application, they come under the state's police power, which, incidentally, gives the state right to license as an excise.

This principle has been badly abused lately.

1) The oath, as I have stated it, is essentially what is required by LP of PA. Aggression implies initiation. Omitting the word "initiate" does not change the meaning of this oath.

2) An oath is a pledge is a statement of agreement. No honorable person makes a distinction between these, your desire to pick nits notwithstanding. If you don't feel bound by your "statements of agreement," that's a personal problem, not a debating point. It is an oath, and no sensible person should take it, since it represents 1/2 of a sustainable position. I'm sorry I took it, once. I've renounced it, and don't belong to the LP any more.

The origin of the first part is indeed Locke. But the very omission of the second part is a perversion both of Rand and the proper understanding of Locke, who very much did argue that humans have a right of self-defense.

Since there is no sensible comparison between the war on terrorism with global reach and Vietnam, there is no logical consistency to the LP position either--if your claim is that this consistency is somehow justifying. The fact that the LP has opposed war as a practical matter in all instances in my lifetime stamps the LP as a pacifist party, which indeed it is. You can chase your own tail claiming that the LP isn't a pacifist party, but the purely theoretical "activism" of a party which declined the use of force when America herself was attacked is meaningless posturing, and nothing more. The LP is a pacifist party. Embrace your inner coward. With acceptance comes peace. At least, the kind of peace the LP is willing to accept.

You're right about one thing: Harry Browne's post 9/11 position was every bit as ridiculous as Badnarik's. According to Harry we should have "applied the pressure of international law" to bring bin Laden to justice. Yeah, that's not a pacifist party. Like most libertarians I've found my home in the RP. It's not perfect, but it is willing to defend the country, and it knows how to take and keep political power, three things the LP will never do.

Proud to remain a libertarian, sorry I ever was a Libertarian. And not, despite your sneering, afraid to embrace the patriotism of Patrick Henry.

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