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Restoring the Lost Constitution: The Presumption of Liberty ReviewRandy Barnett has written a fascinating and well-argued book. The book is composed of four parts: "Constitutional Legitimacy," "Constitutional Method," "Constitutional Limits," and "Constitutional Powers." The first part takes seriously Lysander Spooner's arguments in "No Treason: The Constitution of No Authority" that the Constitution is not and cannot be binding on people who did not explicitly consent to it- the "we the people" in the preamble is a fiction. Barnett argues for a view that a Constitution can be legitimate and binding in the absence of explicit consent only if it incorporates appropriate limitations on government to safeguard individual rights. This is the most philosophical section of the book, and I found it the weakest--while I think Barnett had good arguments against tacit or implied consent, I'm not sure his alternative really provides the legitimacy it purports to, nor am I particularly persuaded by his account of natural rights. (I am a strong proponent of individual rights, but I am unconvinced that they are grounded in nature, as opposed to being justified by a combination of empirical fact and subjective values.)
In Part 2, "Constitutional Method," Barnett argues that the Constitution is properly interpreted by a form of originalism based on original meaning, as opposed to original intent. He argues persuasively that the arguments against originalism which target original intent do not work against original meaning. I found this part much more persuasive than Part 1, and I think he has formulated a consistent and rational methodology of Constitutional interpretation that takes seriously what is written in the text.
Part 3, "Constitutional Limits," is where things start to get really interesting. Barnett examines the judicial history of the "necessary and proper" clause of Article I, Section 8, and argues that the Supreme Court made a wrong turn way back in 1819 in McCulloch v. Maryland by adopting an expansive interpretation of this clause where "necessary" meant "convenient" and "proper" was virtually ignored. He extensively reviews contemporary sources to argue for the meaning of this clause and that it requires judicial review of laws to make sure they are grounded in specific powers granted in the Constitution. Barnett begins this section with a quote from Justice Clarence Thomas in FCC v. Beach Communications, showing that Thomas has bought completely into the view that there is a "presumption of constitutionality" for acts of the legislature, whereas Barnett favorably cites Justice Stevens' response to Thomas that "judicial review under the 'conceivable set of facts' test is tantamount to no review at all."
Barnett also argues that the "privileges and immunities" clause of the 14th Amendment was used incorrectly (too narrowly) in the 1873 Slaughter House cases, but the "due process" clause of the same Amendment was used correctly in Lochner v. New York in 1905. He argues that both federal and state legislatures which act to limit the liberties of the people need to show that it is within the enumerated powers of Congress or within the police powers of a state, respectively, and otherwise overturned by the courts.
Finally in this section, Barnett turns to the meaning of the Ninth Amendment, which reserves unenumerated rights to the people, and takes issue with Footnote 4 of the 1938 case United States v. Carolene Products. The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation. The requirement of a specific enumerated right was then expanded in Griswold v. Connecticut by allowing additional rights not specifically enumerated, but found in "emanations and penumbras" from the other rights. Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights. (E.g., a regulation can restrict time/manner/place of speech, but not content; speech itself cannot be prohibited on the basis of content without improperly infringing the right.) Barnett gives an entire chapter on the presumption of liberty, and how to identify rights that have not specifically been enumerated.
In Section 4, "Constitutional Powers," Barnett looks at the commerce clause of Article I, Section 8, and argues that the Supreme Court went wrong with Gibbons v. Ogden in 1824 by equating "commerce" with "intercourse" and allowing Congress to regulate that in every case where it merely affects more than one state. Barnett argues, again by citing a wide variety of contemporary sources, that "commerce" was distinguished from "manufactures" and "agriculture," and was synonymous with "trade." Thus, Congress has no legitimate power to legislate regarding manufacturing and agriculture, only regarding trade between states, with foreign nations, and with the Indian tribes.
He also includes a chapter on the police powers of states and what they can constitutionally do on his account, and another on the application of his view to judicial doctrines and cases. He argues that this yields something which is rather libertarian, but not entirely so.
Barnett puts forth a position which takes the language of the Constitution seriously, and which would require us to be explicit about making changes to it when we find that it has become out of date, rather than allowing a flexibility to the language to such an extent that the original wording no longer has any meaning at all. He spells out a view in which there is real content to judicial review, justified directly by the language of the Constitution, and in which the court has strong checks and balances against the legislature and the executive (and vice versa).
This book deserves to be widely read and taken seriously by those in the judiciary.
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