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Restoring the Lost Constitution

Restoring the Lost Constitution: The Presumption of Liberty

Randy E. Barnett
Copyright Date: 2004
Pages: 384
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  • Book Info
    Restoring the Lost Constitution
    Book Description:

    The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. InRestoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.

    Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.

    As clearly argued as it is insightful and provocative,Restoring the Lost Constitutionforcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.

    eISBN: 978-1-4008-2584-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xviii)
  4. INTRODUCTION Why Care What the Constitution Says?
    (pp. 1-6)

    Had judges done their job, this book would not need to be written. Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post–New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten “police power” of the states. All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As...

  5. Part I. Constitutional Legitimacy

    • CHAPTER ONE The Fiction of “We the People”: Is the Constitution Binding on Us?
      (pp. 11-31)

      The Constitution begins, “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” This was not idle rhetoric. These words were offered to claim legitimacy for the document that followed. The founders’ claim of legitimacy was based not on the divine right of kings, but on the right of “We the People” to govern themselves. They declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. They made this declaration because they believed that the...

    • CHAPTER TWO Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People
      (pp. 32-52)

      Some fictions are harmless; some are even beneficial. As Edmund Morgan has shown, the fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. If the king obtained his authority from God, the Commons gained its authority from the people. Paradoxically the fiction of the divine king was used to limit his power. First, it could be used to deny any intentions to the king that were unworthy of a perfect being. “[D]ivinity, when assumed by mortals (or imposed upon them) can prove more constricting than subjection. Indeed, the attribution of divinity...

    • CHAPTER THREE Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities
      (pp. 53-86)

      We have seen how the argument from popular sovereignty or consent of the governed fails to legitimate legal commands in the absence of unanimous consent. These commands would nevertheless carry with them a duty of obedience, even without consent, if there is a procedural assurance that they do not violate the rights of the persons on whom they are imposed and that their requirements are necessary to protect the rights of others. But what are these rights?

      In this chapter, I shall consider the conception of rights held by the people who wrote and adopted the original Constitution and also...

  6. Part II. Constitutional Method

    • CHAPTER FOUR Constitutional Interpretation: An Originalism for Nonoriginalists
      (pp. 89-117)

      In the previous chapter, I argued that the phrase “others retained by the people” in the Ninth Amendment was originally a reference to “inherent” or “natural” rights, that the term “natural rights” originally referred to what we would today call “liberty rights,” and that “privileges or immunities” included both liberty rights and rights created by positive law. Should we interpret these words by looking to what they meant at the time they were enacted? We had best answer this question now since many other provisions of the Constitution will require interpretation throughout the course of this book. For example, what...

    • CHAPTER FIVE Constitutional Construction: Supplementing Original Meaning
      (pp. 118-130)

      Although both constitutional legitimacy and the commitment to a written constitution necessitate reliance upon the original meaning of the text, originalist interpretation has its limits—limits that inhere in the use of language to guide conduct. As the framers were well aware, language can be vague and this is no less true of the language found in the Constitution. For example, during a colloquy in the Constitutional Convention over whether states were precluded from laying certain duties on shipping, Madison said this depended on the extent of the power “to regulate commerce.” “These terms are vague,” he conceded, “but seem...

    • CHAPTER SIX Judicial Review: The Meaning of the Judicial Power
      (pp. 131-148)

      Most people today assume that judges are authorized by the Constitution to declare statutes unconstitutional. Yet the Constitution does not seem to grant this power expressly. Article III says: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congressmay fromtime to time ordain and establish.” In sharp contrast with the presidential veto power,² nowhere in the Constitution does it say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President...

  7. Part III. Constitutional Limits

    • CHAPTER SEVEN Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause
      (pp. 153-190)

      After the preamble, the very first sentence of the Constitution reads: “All legislative Powersherein grantedshall be vested in a Congress of the United States. . . .”² Therefore, evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. Here is the entire list (save one) that appears in Article I, Section 8:

      The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all...

    • CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause
      (pp. 191-223)

      To this point we have examined whether the Necessary and Proper Clause precludes or invites the exercise of judicial review of a federal statute to see if it lies within the powers of Congress to enact. What stance should federal courts take toward state legislation? The original Constitution contained several explicit restrictions on state power. Article I, Section 10 stipulates, for example, that

      No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass...

    • CHAPTER NINE The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong
      (pp. 224-252)

      As anyone who has studied constitutional law knows, the era in which the Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. What is not well known today is that the doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. In this chapter, I describe the revival of the presumption of constitutionality, its almost immediate qualification in the form of the most famous footnote in constitutional history,...

    • CHAPTER TEN The Presumption of Liberty: Protecting Rights without Listing Them
      (pp. 253-270)

      There are at least four distinguishable approaches that judges may take toward legislation restricting the retained liberties of the people. First is the laissez-faire approach of complete judicial deference: Adopt a general presumption of constitutionality toward all legislation affecting any liberties of the people. To adopt the laissez-faire approach would be to make Congress the sole judge of its own powers in every dispute between it and a citizen concerning the necessity and propriety of a legislative interference with the citizen’s rightful exercise of freedom.² Essentially, this approach would eliminate judicial nullification of legislation infringing on constitutional liberties, including those...

  8. Part IV. Constitutional Powers

    • CHAPTER ELEVEN The Proper Scope of Federal Power: The Meaning of the Commerce Clause
      (pp. 274-318)

      The Necessary and Proper Clause commands that all laws passed by Congress shall be proper. When a government restriction of liberty is challenged by an affected citizen, a Presumption of Liberty means that the citizen wins, unless the government can justify its restrictions as proper. A “proper” exercise of power is one that is within the jurisdiction of the branch or department in question and that does not violate the rights retained by the people.¹ In Article I, the Constitution lists a number of powers that the Congress may exercise.²

      The enumeration of congressional powers was adopted by the Convention...

    • CHAPTER TWELVE The Proper Scope of State Power: Construing the “Police Power”
      (pp. 319-334)

      If the presumption of Liberty were adopted, how could state laws be shown to be proper? Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. Answering this question will require a reliance on many of the concepts and distinctions we have examined in previous chapters, so I begin with a brief review of the terrain we have crossed to reach this point.

      We have seen how a written constitution is used to “lock in” certain rights and procedures so they...

    • CHAPTER THIRTEEN Showing Necessity: Judicial Doctrines and Application to Cases
      (pp. 335-353)

      Assessing the propriety of state or federal legislation is a legal question. Courts must determine whether the purpose of a particular statute falls within the enumerated powers of the federal government or the police power of a state. The Presumption of Liberty places the burden of establishing the propriety of laws on the government. The government may meet its burden by showing that any restrictions on individuals are either prohibitions on wrongful conduct or proper regulations of rightful activity.

      To be justified under the Commerce Power, federal laws must be regulating or protecting trade between the states. They may not...

  9. CONCLUSION Restoring the Lost Constitution
    (pp. 354-358)

    The way the Constitution has been interpreted over the past seventy years has meant that, with some exceptions,² the Necessary and Proper Clause has no justiciable meaning, the Privileges or Immunities Clause has no justiciable meaning, the Ninth Amendment has no justiciable meaning, the Tenth Amendment has no justiciable meaning, the Commerce Clause has no justiciable meaning, and the unenumerated police power of the states has no limit. To this list could be added the Second Amendment³ and the Takings Clause of the Fifth Amendment⁴ as well. Can you see a pattern here? Do you not sense a systematic skewing...

  10. Index of Cases
    (pp. 359-359)
  11. Index of Names
    (pp. 360-362)
  12. General Index
    (pp. 363-366)