A Libertarian Constitution

The Claremont Institute ^ | 6/1/05 | Nelson Lund

[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.

[jackbob]

Traditionally, most libertarians have been members of the RP not the LP.

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 probably has about as many libertarians as the Libertarian Party does. What's going to be interesting is watching the libertarian democrats further organize over the nest 10 years.

[SandyB]

However, what is wrong with the Libertarian party, is that they want open borders, and no limits on immigration.

Borders are already wide open under Jorge Bush. Under a Libertarian administration, the welfare state would be abolished, which would discourage illegals from coming in the first place.

No. The libertarians want absolutely no limits on immigration, and absolutely no border patrol. A libertarian presidency would be disasterous - tens of millions would come in each month, or more. The welfare state would be expanded , not abolished , under a libertarian administration because 100 million new liberal voters would make our country socialist.

[SandyB]

Until and unless the LIbertarians change their platform to secure our borders, and limit immigration, no one is going to vote for them.

Yet, amazingly, tens of millions of Americans continue to vote for Republicans and Democrats.

tens of millions of americans dont vote for anybody because there isnt a dimes worth of difference between the republicans, democrats,and libertarians. If all 3 parties want to overpopulate our country with foreign liberals, what difference does it make who you vote for?

[verity]

Libertine.

[William Terrell]

But what exactly is the police power's scope? It is never mentioned, let alone defined, in the Constitution.

But it has well settled in our law. The Police Power is unlimited in scope, but limited in exercise to those statutes passed under it must be constitutional, proof positive that the object of the statute is a clear and present danger to the citizens and that the statute will in fact remedy the danger.

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.

The common law came first. We adopted the English common law. The author fails to mention that the common law is the basis of the law, because it has to do exclusively damage done by one to another and the remedy for that damage. This follows the precept of the Golden Rule.

In my wandering through cases and analyses of the common law, I find it stated over and over again that a statute is inferior to the law and can only modify it. A statute can't eliminate it because real damage can't be eliminated by mere statute; if it is done, it is still damage.

And even modifications can be harmful in their effect. The common law has always regulated marriages, because stable families has always been recognized as the foundation for a stable state, and been stuffy about what causes a divorce must be based on. The modification of of the no-fault exception has nearly destroyed that institution.

The common law operates today in all the states. The unification and standardization of adjudicated cases that occurred in the fifties was to combine common law with equity counts so as to streamline cases that have both equity and common law counts, as most do.

The employer/employee relationship is regulated under common law. The Supreme Court has stated that it is really the master/servant common law relationship, but renamed employer/employee because the terms "master" and "servant" were disliked.

Common law is commonsense, and it specializes in determining the remedy tailored to an offense and the circumstance surrounding it and mitigating it.

For instance, the common law wife. The common law is clear that when two people move in together and represent themselves as husband and wife, do husband and wife things, and do so for a couple of years, they are in fact married and require a divorce.

This has always been done to protect women in relationships. Some states had attempted to do away with that. Those that have done so have left women remedyless if a cad were to convince them that he loves them, lives with them and they invest in the relationship, including money, then he just leaves.

I think this author is a statist who is having trouble with well analyzed arguments for the limitation of national government.

[jackbob]

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."

You are quite wrong here. First off there is no perversion of anything by Rand here. Secondly no oath is required. Currently each affiliate state party must how ever require that its members certify in writing that they "oppose the initiation of force to achieve political or social goals." The exact wording of it is left up to the state LPs so long as the meaning is not changed. This is often referred to as a "pledge," where in-fact it is more like a statement of agreement. Its origins are John Locke not Ayn Rand. The word "initiate" is critical to its meaning. The LP is not a pacifist party.

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.

Badnarik's positions were quite consistent with the long term positions of the LP and its founders. The LP position on the war in Iraq was the same as its position on the war in Vietnam. The small influence that peaceniks have had in the LP has been getting smaller with every passing year. No hijacking occurred.

A man who truly loves liberty has a duty to die for it.

I see you are still alive.

[Eagle Eye]

even the most lofty and calculated expression of it always seems to come down to these two things: sex and drugs.

Only in your mind; only because you want it to be that way.

Funny thing is that my L/libertarian friends are ardent 2A defenders, family men, and church goers, not at all interested in personal use of recreational drugs or what ever illicit sex you have in mind.

[William Terrell]

"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."

I always get a good laugh when I read something like this. It's so trite. The Supreme Court, the Congress and the Executive were created by the Constitution.

[Eagle Eye]

I've never heard a Libertarian really argue for freedom as it seems the Founders defined it.

Maybe because you've not cared to pay attention.

Using your same 'logic', I've never heard an intelligent word out of your mouth. Does that mean you're stupid as I've implied or that I've not heard ANY words out of your mouth?

[Durus]

A limited federal government. That was the intention of the founding fathers.

States have constitutions too. The founding fathers did not intend for a limited federal government with states have unlimited powers. Please see the 10th amendment.

And anyway, when libertarian argument is distilled to its essence, even the most lofty and calculated expression of it always seems to come down to these two things: sex and drugs.

Your understanding of libertarian thought is as expansive as your knowledge of the Constitution.

[Eagle Eye]

God didn't give you the right to kill babies, get doped up, or screw a hooker.

There are many sins that need not be crimes. And many crimes that are not sins.

[William Terrell]

Any nation that can make legal what is immoral and can make illegal what is moral is doomed.

[William Terrell]

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.

The government's purview of morality is limited to a damaging act done by one to another. 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.

The latter must be made by statute; it is not comprehended in the common law, which follows the law of God as expressed in His natural world.

The only entry into this area that is comprehended by a government is through its police power, which is unlimited but severely restricted to proof that an action is clear and present danger to the body public and proof that the statute in fact clearly remedies the situation. But, first, the statute must be permitted under the constitution.

And, again, this relates to harm done to another, not harm done to oneself. The steps government has made into self harm has been made possible logically by the welfare state, which makes all responsible financially for the bad choices of any.

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. He becomes a "human resource", that is to say, the source of revenue for the government. This is socialism and places the government in the position of parents to children and therefore, in a public scope, God.

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

[Haru Hara Haruko]

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

Please tell us those crimes and where in the Constitution the government is authorized to stop those "crimes."

Go pray before the altar of the New Deal. Those are the people who saw your vision of what the government is empowered to do.

[Haru Hara Haruko]

Think South Park Republicans. They will be the wave of the future and they are libertarian.

They will also sit out the next election if they think the Republicans are all about Homeland "Security," continuing the TSA debacle, a USA PATRIOT surveillance-state, and forever putting off any reuction in size of government.

[Haru Hara Haruko]

This: even the most lofty and calculated expression of it always seems to come down to these two things: sex and drugs. ...is the desperate sound of a lost Republican Party lashing out when Hillary polls 53%.

Republicans used to stand for liberty. Now they stand for Socialism that costs 2% less than Democrat Socialism.

[Haru Hara Haruko]

There is a cadre of people on FR who think cops can do no wrong.

They have either an artificial, or outdated view of cops. As this article makes clear, cops - especially in big cities - are much like other bureaucrats: leftist, incompetent, anti-RKBA, unionized, hired by quota, tax money-grubbing, etc.

These cop-worshippers get especially shrill when someone points out there are cases that the courts have reviewed where citizens are entirely right to kill government agents in defending their lives and property.

However, those cases are rare and beside the point. The main issue is that police are just bureaucrats with guns, and they are just as stupid and anti-constitution as most bureaucrats. The cop worshippers have no answer to this.

[William Terrell]

Republicans used to stand for liberty. Now they stand for Socialism that costs 2% less than Democrat Socialism.

Good point.

[mysterio]

Tailgunner Joe wrote : "I will never be under the control of baby-killing faggot commie liberal-tarian junkies."

Thanks for reminding me why I don't vote with the Republicans anymore.

My issue is the restoration of the Constitution. Apparently, yours is name calling. Is that because you have no coherent argument? That would be my guess.

[steve-b]

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?).

That doesn't have anything to do with basic principles. It merely reflects the fact that the immediate issues (which freedoms the government was routinely violating) were different then than they are now.

my business must not discriminate in hiring, my tax dollars must pay for benefits

Those are property rights issues, fully (and correctly) addressed by libertarian positions.

the culture becomes something entirely unacceptable to the majority

This is impossible by definition, as the attitudes of the majority are "the culture". In any case, it is not the government's place to provide a culture ministry.