Posted on 06/01/2005 2:55:30 PM PDT by P_A_I
A Libertarian Constitution
A review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett
By Nelson Lund
This review appeared in the Spring 2005 issue of the Claremont Review of Books.
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.
So you can make sure that Democrats keep the majority in congress to keep conservative judges off the federal bench?
No kidding. Post a drug or porn thread that has nothing to do with the LP, and you'll see the usual hyperactive anti-Libertarian posts.
Funny, I thought for a second the GOP already had the majority. Of course, I have to keep track with all the RINOs who are nothing but undercover Dems anyway.
They do, no thanks to you, and they are getting pro-life judges confirmed too.
I still consider myself a newbie here and don't understand what you mean by it. I'd love to know. Law enforcement? PD's?
Anti-gubmint libertarian neo-rebs don't like cops. Conservatives support their local police departments.
Thanks TJ, feel kind of silly, now clear.
Many Libertarian parties require an oath to this effect: "That I will never engage in the use of aggressive force."
This is in fact a perversion of the maxim Ayn Rand originally stated, "that no person or nation has the right to institute the use of aggressive force. But when confronted with aggressive force, no person or nation must ever fail to respond."
She clarified this by saying that the United States would be justified at any time in invading the Soviet Union, because the Soviet union was not, in fact, an actual nation at all, but simply a criminal organization. No "international law" can be invoked to protect a band of thugs, any more than "States Rights" can be invoked to claim a right which no state could ever have: that of enslaving human beings. This is no different from the "state" run by Saddam Hussein and so beloved by the United Nations and the Department of State. And it's also why I am not a Libertarian anymore. Badnarik and the peaceniks who've hijacked the party are completely ignorant of the philosophical and moral infrastructure of libertarianism, which is essentially the philosophy of the founders.
A man who truly loves liberty would be willing to fight for it.
No.
A man who truly loves liberty has a duty to die for it.
Yet, amazingly, tens of millions of Americans continue to vote for Republicans and Democrats.
"Why do you fear libertarians?"
I don't fear them. I laugh at
them because they are soooo cwazy,
uhhhhhhhhhhhhhhhh. To quote
Elmer Fudd.
"Libertarianism" is not a "they." Furthermore you seem to no nothing about what Libertarianism is. Contrary to what you say, the basic philosophy of Libertarianism can be summarized as a demand that the "chooser" as you put it "pays all of his own consequences." If you can provide a single example where I am wrong here, I'll join you in denouncing libertarianism. If you can't, then you should apologize to all the readers for spreading false information.
Libertarians fail to also see that many so-called private "choices" actually do have an effect on others against their will. 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...
Again you are wrong here, and I extend to you the same offer. Provide a single example, where Libertarians "fail to also see..." as you put it and I'll denounce the Libertarians.
On another thread recently you were claiming that libertarians did not believe virtue mattered. When challenged on this you went silent. One must ask if honesty has any place in your moral code. Or do you even have a personal moral code of conduct.?
I have never heard them fight against it. Never. They only argue with the gay activists, never against them.
Have you ever searched out the libertarian positions on gay indoctrination? I doubt it, cause if you had, you would have found plenty of argument against it.
They just want license. Anarchy. They are also relativists.
You are right here about some libertarians. You are also wrong here when speaking about the majority of libertarians, in or out of the Libertarian Party. What you say here is actually a better description of republicans and democrats than it is of libertarians.
When bad choices mean bad consequences -- a direct relationship -- then we can talk.
Libertarians use more resources, in far greater percentages than the republicans do to bring about a government where "bad choices mean bad consequences." If that is what you are honestly looking for, then the LP is your party. The LP could just as easily been named the Responsibility Party. No other political party in America today advocates the level of personal responsibility that the LP advocates.
Oh? We have a second amendment now. Are you saying that government has not taken away any of your rights?
Libertarianism is more rooted in morality than any other political philosophy. Your claim is either dishonest or totally based upon ignorance.
That is one of the primary reasons I became a libertarian. As I see it, they are the only party in America that is actually laying the ground work to fight for liberty.
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