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.

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

Barnett apparently approves of the prevailing sweeping interpretation of the Fourteenth Amendment, which gave birth to the federal leviathan, which has since encroached insidiously into all aspects of life.

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. That is the fire in its furnace.

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

Libertarian? Maybe small-l libertarian. This is really no more than what Republicans believed before the New Deal.

Any "Republican" that thinks this is at all controversial should have a big red 'D' tatooed on his forehead.

I'm a born-again Christian but I think that argument is bunk. The Founding Fathers and early Americans were not a bunch of pot smoking sex fiends. When teenage girls didn't get welfare checks for having sex they had to remain chaste until marriage. When getting a divorce meant establishing fault men didn't leave their wives for younger, prettier women. When the Government didn't provide poverty programs for the poor you had to learn a trade or get an education. The private charities that filled those needs before Big Government pushed them aside used to provide moral and Christian counseling along with financial assistance. Let's shrink the government NOW.

A followup point - economists have a phrase to describe the above. It is called 'moral hazard'. It was originally discovered because insurance agencies noticed that people engaged in more risky behavior after getting insured. Insurance companies tailor the rates they charge to risk categories, but the federal government's wealth redistribution policies result in the opposite effect: lower rates for those who engage in the riskiest behaviors, and higher rates for those who are most responsible.

The reviewer states,

"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 have read this book 3 times and I agree with this assertion.

In addition, I have used Barnett's thesis to slow down and defang a county wide smoking ban, almost to the point to where the RINO sponsor may back off the proposal in its entirety and completely stop a local city ordinance that would require property owners only to rent their first floor space to "retail" renters only.

I am now taking on my local city's claim that they can define private property (restaurants, bars, grocery stores, gas stations, etc)as "public places" for purposes of regulating smoking activity.

Next I am going to take on helmet and seatbelt laws.

Boy am I have fun exerting my rights.

Prof. Barnett exposes former Supreme Court judges as the tyrannt, socialist, elitist, control freak, anti-liberty, mental midgets that they were.

The actual good news is the current crop of Supreme Court judges is beginning to recognize Amendment IX.

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. 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.

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. 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.

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. 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.

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.

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.

I dont care if anyone wants sex or drugs, and it is none of governments business. However, what is wrong with the Libertarian party, is that they want open borders, and no limits on immigration. Just how long would freedom last if we let in 500 million anti gun anti Bill of Rights foreigners in one year?

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

"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."

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

You need to read Article VI, which clearly limits State governments, "notwithstanding" anything in their own constitutions.

The 14th has nothing to do with insidious encroachment. That's just a 'moral majority' hyped up position.
Majority rule politics is the real culprit in allowing Big Bro style government.

I spoke to soon on libertarian bashing. Sex & drugs are just the favorite hang ups of authoritarian prohibitionists, those who ignore our Constitution.

I agree that today that is what appears to be the fly in the ointment but go back 200 years, when sense of community was real and overwhelming when morality governed thought, language and "natural law" was understood. We still had many human ills that we have today but they were not accepted as the norm, thus A libertarian would not necessarily be a republican who likes to smoke pot and may very well be considered truer to our founding. What has really thrown things out of whack is the leftist/ Marxist attempt to subvert the overriding morality and sense of family using essentially libertarian type freedoms.....IMHO

Did you ever hear a Libertairian, or a real Republican, for that matter, advocate for any sort of gay indoctrination? Which would you rather have, some kind of watered down state-run "morality," or true freedom of religion and association?

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