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.

The Bill of Rights is commonly misunderstood to be a list of our rights. It is actually an incomplete list of restrictions on the federal government.

Indeed.

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.

Says who? It doesn't say that in the Constitution.

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Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. - John Locke, Two Treatises on Government
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Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.
This will of his Maker is called the law of nature.
This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. - William Blackstone, Of the Nature of Laws in General

The Founding Fathers and early Americans were not a bunch of pot smoking sex fiends.

I dont know if they actually smoked it or not. Jefferson raised marijuanna/hemp, and George Washington took opium/laudenum. But anyways, the founding fathers did NOT make marijuanna illegal. The founding fathers did not pass a law against the possesion of any inanimate object. It wasnt until very recently in 1939 that we had our first law against marijuanna, long after the founding fathers died. Even opium and heroin were not outlawed until the 20th century, so a lot of presidents never gave making pot illegal any thought at all.

I have never heard them fight against it. Never. They only argue with the gay activists, never against them. I've never heard a Libertarian really argue for freedom as it seems the Founders defined it. They just want license. Anarchy. They are also relativists. I don't want any part of their mess. Besides, like I said before, they need to START with the money issue. As long as we all bear the financial burden for the failures of a few, liberty for some equals tyranny for others. When bad choices mean bad consequences -- a direct relationship -- then we can talk. Until then Libertarianism is nothing but fuel to the tyranny fire.

The problem with modern Libertarianism is that they totally miss the interrelationship between truths and even freedoms. For example, we can only be as socially free as we are fiscally free.

Odd 'line', is this some sort of communitarian position?

These things must be balanced, where the chooser pays all of his own consequences. Otherwise social freedom for some results in fiscal slavery for others, not to mention social hardship.

Libertarians are supposed to oppose fiscal freedom? Weird.

Interestingly, the founders were far more focused on financial and religious freedom than they were on sexual license and other such social issues (drugs anyone?). A person was entitled to the fruits of their own labor and to worship as they choose. These were their big liberty issues. I think they would be appalled at what our self-indulgent culture has come to think of liberty. We seem perfectly willing to turn over large portions of our money -- or at least feel good about the so-called "rich" turning over large portions of their money -- as long as we are free to be as immoral as we want to be. Our perception of liberty is fundamentally different than that of our Nation's founders, it seems to me.

Speak for yourself. I see no such difference.

The first thing we should do if we really want to restore the Founder's version of liberty is to repeal the federal income tax. As long as the U.S. Congress has our money they will control our lives with it. Take the money and you take their power.

You wouldn't find ANY libertarians that approve of income tax my boy. Get real.

Libertarians fail to also see that many so-called private "choices" actually do have an effect on others against their will.

Empty rhetoric with no basis in fact. You made that line up.

For example, gay issues. So-called gay rights means my child must be instructed to be respectful of homosexuality, my business must not discriminate in hiring, my tax dollars must pay for benefits etc. Plus, the culture becomes something entirely unacceptable to the majority -- all to pleasure the degrading passions of 2% of the population. That's freedom for 2%, apathy for about 35%, and oppression for the rest.

Thats sheer BS. Libertarians do not support 'affirmative action' on gay rights. - Socialists/communitarian's do that.

Lastly, to claim that the courts exist to knock down all the legislation they possibly can is to elevate the judges to an all powerful position and to completely change our form of government.

Not at all. ALL officials are required, by oath, to support our Constitution against infringements, -- to "knock down" repugnant 'laws'. -- You simply do not understand basic constitutional principles.

Tailgunner Joe wrote:

The Bill of Rights is commonly misunderstood to be a list of our rights. It is actually an incomplete list of restrictions on the federal government.

It restricts ALL levels of government in the USA, joe. You simply will not admit that principle.

It's no mystery. We let fully informed juries decide if laws are repugnant to the Constitution.

Says who? It doesn't say that in the Constitution.

The principle is there joe, in the 2nd, the 9th & 10th, and in the fact that due process must be followed in the writing of law as well as in its enforcement.

It restricts ALL levels of government in the USA, joe. You simply will not admit that principle.

Only according to one interpretation of the Fourteenth amendment, as the article you posted discusses. The Bill of Rights could not apply to the states before the Fourteenth Amendment was ratified. You simply will not admit that.

We let fully informed juries decide if laws are repugnant to the Constitution.

No we let the Supreme Court decide that rights not mentioned in the constitution like the right to murder your baby are inviolable.

The principle is there joe, in the 2nd, the 9th & 10th

The Bill of Rights is a list of restrictions on government, It does not make any claim that everyone has a right to do whatever they want provided they don't violate another's rights. Some crimes don't involve the violation of anyone's rights.

The Constitution/BOR's restricts ALL levels of government in the USA, joe. You simply will not admit that principle.

You ignore Article VI joe, which clearly says that States must support the US Constitution, "notwithstanding" anything to the contrary in their own constitutions.

We let fully informed juries decide if laws are repugnant to the Constitution.

No we let the Supreme Court decide that rights not mentioned in the constitution like the right to murder your baby are inviolable.

Hype. -- Roe simply said that State legislators could not decree that early term abortion was murder. Only juries decide what is murder.

The principle is there joe, in the 2nd, the 9th & 10th. And due process must be followed in the writing of laws.

The Bill of Rights is a list of restrictions on government, It does not make any claim that everyone has a right to do whatever they want provided they don't violate another's rights.

That principle is rationally inherent in our system joe. That you seem to be incapable of understanding it is sad & unfortunate.

Some crimes don't involve the violation of anyone's rights.

Interesting. Can you explain?

You ignore Article VI joe, which clearly says that States must support the US Constitution, "notwithstanding" anything to the contrary in their own constitutions.

Of course they must support the constitution, but the constitution does not say that the Bill of Rights applies to the states. The Ninth Amendment reserves to the states all those powers not specifically enumerated federal. The Bill of Rights was never considered to apply to the states by the founders nor by any court ruling for over a hundred years. Today it only is applied so due to the fourteenth amendment, not the supremacy clause, which has never applied to the Bill of Rights.

"Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority..." - Thomas Jefferson, Letter to Samuel Miller, January 23, 1808

We let fully informed juries decide if laws are repugnant to the Constitution.

No, we don't. "Fully informed" juries can do cute things like let OJ get away with cutting his wife's head off because they think there are too many blacks in prison, but they cannot overturn laws. Only judges can do that.

Roe simply said that State legislators could not decree that early term abortion was murder. Only juries decide what is murder.

Unless a judge tells them they can't because it's the woman's choice, yada, yada, yada...

Your libertarian definition of freedom is not "inherent" in the Constitution. The government cannot infringe on natural God-given rights. God didn't give you the right to kill babies, get doped up, or screw a hooker. Crimes are prohibited not only because they harm other, but because they're wrong. You may say the government has no right deciding what's right and wrong, but I say they do. In fact, that is precisely the government's purpose.

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