Restoring the Lost Constitution: The Presumption of Liberty

A great paradox of America’s constitutional order today is that judges have never been more powerful, yet there has never been more disagreement among both judges and legal scholars about proper use of their power. Federal and state courts grow ever bolder, finding nearly every important issue of politics and social policy to be within their purview, from elections to marriage and presidential powers in wartime. The aggressive federal rulings of recent decades have ignited a constant controversy over the meaning of the Constitution and how to discern that meaning that dwarfs all earlier disputes about judicial power. The recent tactic in the Senate of filibustering judicial nominees seems to be here to stay, as does the discord about basic tenets of judicial power among scholars and judges alike. Readers of this journal are familiar with this controversy, and many citizens find a place in one of the contending camps”whether favoring stricter or looser interpretation, or the Constitution’s original intent versus contemporary meanings given to it, or judicial restraint versus a judicial duty to fulfill the broader “promises” of the Constitution.

In Restoring the Lost Constitution Randy Barnett brings into the arena a hybrid theory that claims to recover the original understanding of what the Constitution is for and of what judging is, a theory that we might call “libertarian originalism.” Those who urge that judicial rulings should be informed by the original intent of a constitutional clause may applaud Barnett for taking the Constitution seriously and for distinguishing judging from legislating. On the other hand, advocates of a “living Constitution” may welcome the latter half of this long and carefully argued book, which sets forth the specific consequences of his interpretation of the Constitution, the Bill of Rights, and the Fourteenth Amendment. For Barnett eventually argues that a “presumption of liberty,” which makes of our constitutional order mere “islands of government powers in a sea of liberty,” requires our judges to invalidate most laws regulating sexuality and individual autonomy, morals, and speech. This bold new constitutional theory thus reinforces what our bold courts have been doing for decades.

It would seem that courts newly armed with this presumption would be duty-bound to scrutinize our law for the last remnants of moral principles, of tradition, and of concern for the common good”for anything that would restrict the autonomy of individuals and of consenting, contracting adults. Barnett denies that this is his intention, but the presumption of liberty that he delineates would effectively turn the judiciary into a perpetual Council of Revision, presuming all state or federal laws to be unconstitutional unless shown not to infringe liberty. Since the framers explicitly debated and rejected a similar idea in the 1787 constitutional convention, and since nothing in the drafting and ratification of the Fourteenth Amen-dment clearly reverses the concept of a limited judicial power as part of a complex constitutional order, it is hard to square the originalism of this book with its libertarianism.

Barnett, a distinguished law professor at Boston University and senior fellow of the Cato Institute, has published widely on restoring a Lockean natural rights foundation to American law and jurisprudence. He thus has advocated the rediscovery of the Ninth Amendment in the Bill of Rights, which states that the Constitution’s enumeration of particular rights “shall not be construed to deny or disparage others retained by the people.” Restoring the Lost Constitution develops this view of individual rights to property, to revolution (thus to bearing arms), and to a host of unenumerated liberties into a grand theory of our constitutional order.

The book has four parts. The first, on “Constitutional Legitimacy,” lays out the strictly Lockean premises for a natural rights Constitution: government exists only to protect individual rights, has only the powers expressly granted it, and has no authority to enforce acts to which an individual has not explicitly consented or that he deems a violation of natural rights. The section on “Constitutional Method” advocates interpretation according to the original public meaning of a constitutional clause, to be supplemented but not displaced by the “original intent” of framers and ratifiers. This restores the long-disparaged approach of “legal formalism,” committing lawyers and judges to enduring rules and concepts for interpretation of law. The third section, “Constitutional Liberty,” employs these premises of legitimacy and method to examine limits on majoritarian legislation imposed by the Constitution’s strict enumeration of powers, by the Ninth Amendment’s protection for open-ended rights, and by the Fourteenth Amendment’s protection of the “privileges or immunities” of all citizens in all states. The last part assesses the limited “Constitutional Powers” of Congress over the economy and of states over “police” matters of safety, health, and morals, and finds a plenary judicial power to enforce these limits.

The arguments advanced in Restoring the Lost Constitution are careful and clear, and the author’s search for original meanings of particular constitutional clauses is occasionally brilliant. And yet the jurisprudential reach of the book exceeds its analytical grasp, because Barnett opens with contradictory accounts of his two basic premises, constitutional legitimacy and an originalist method of interpretation. All the powers of the judiciary set forth in the latter half of the book stem from this opening flaw, and, despite his protestations, Barnett’s theory effectively would empower a juristocracy to strip from “liberty” nearly all conceptions of communal self-government, a vibrant citizenry, and common moral purposes. This is unfortunate, since he persuasively argues that only originalism, binding judges to the plain meaning of the Constitution or the carefully inferred intent behind it, provides a justification for judicial review of the acts of the elected branches. He exposes our Wizard of Oz world of recent decades, with judges and theorists legislating their preferences in the name of the Constitution while cajoling us to “pay no attention to that man behind the curtain.” Barnett’s inquiries into federal power, the Bill of Rights, and the Ninth and Fourteenth amendments also contain much of value. His express commitment to originalism, however, exposes him to the criticism that he has not fully captured the views of politics and law embodied in the Constitution, nor its balance between legislative, executive, and judicial powers. On none of these matters did the Founders or even the authors of the Fourteenth Amendment adopt either libertarianism or judicial supremacy.

In an odd move for an originalist, Barnett argues that the Constitution’s opening phrase, “We the People,” does not mean what it says, since he classifies as “fictions” both the traditional republican idea of political community and the modern idea that a social contract among individuals produces community. I would agree that one should reject the recent theory that the Supreme Court speaks for an evolving We the People in rewriting the Constitution and that one should also reject its New Deal predecessor, the theory that the Constitution means anything demanded by the Rousseauean general will of the moment. Barnett overcorrects, however, by claiming that a Lockean theory of man’s natural unsociability is the Constitution’s core principle, giving each individual an effective veto over all laws. To make this argument he copiously cites recent historians and political theorists but refers to the Founders more sparingly”whereas throughout the rest of the book the reverse is usually the case. Quite apart from the question of whether Locke in fact held such a strict contractarianism, it is notable that Barnett never mentions the political philosopher most consulted by the framers when forming this constitutional republic: it was not Locke, but the Frenchman Montesquieu. His classic work The Spirit of Laws argues that human nature calls for the right balance between liberty and order, and between the natural rights of individuals and common beliefs and purposes; the same is true of his disciple Blackstone, who persistently tempers liberty with communal order in the Commentaries . Libertarian ideas do offer a corrective to the statist or socialist ideas of later centuries; and Barnett rightly argues that Judge Robert Bork, for example, is wrong to dismiss the Ninth Amendment as an “inkblot” unintelligible to a jurist who seeks to avoid legislating. But there is discontinuity, to say the least, in the fact that Barnett dedicates this book to James Madison while overlooking the commitment expressed by Madison in Federalist No. 10 to preventing majoritarian injuries to both the rights of individuals and “the permanent and aggregate interests of the community” or “the public good.” Is it a libertarian Constitution whose Preamble declares that “We the People” can “ordain and establish” a fundamental law for broad common purposes, binding upon all, because achieved through reasonable representation and balanced constitutional forms?

A related and significant omission in Barnett’s theory is religion, the phenomenon behind the Constitution’s self-definition as ordained and as protecting individual rights and the pursuit of happiness through a covenantal community greater than any individualist or contractarian parts. John Jay argued in Federalist No. 2, and Washington argued in both his 1783 Circular and 1796 Farewell Address, that an organic American polity existed from the Revolution and yet could only secure natural rights by enacting those bonds in a written fundamental law. Tocqueville’s classic analysis of America’s “point of departure” in the Puritans”who uniquely blended religion, liberty, and English common law”is also absent from Barnett’s book, possibly because Tocqueville confirms that our polity is a Montesquieuean blend of covenantal and contractarian jurisprudence. This is the non-Lockean basis for the aims in the Preamble to “promote the general welfare” and “secure the blessings of liberty,” both for the founding generation and their “posterity.” Such jurisprudential complexity, further evident in a Constitution that defines itself as ordained and yet forbids both religious tests for office and an established religion, follows Montesquieu and Blackstone in blending Locke, Christianity, and classical republicanism.

The common law is yet another source rarely mentioned by Barnett, who seems to acknowledge it selectively: he likes the common law’s fixed meanings for property rights but eschews its precedents about morality, duties, or speech. Joseph Story and Chancellor Kent, early nineteenth-century authorities whose works embody this more complex view of American law and liberty, also do not appear; nor does Madison’s argument in Federalist No. 49 that if law is to protect liberty there must be a deposit of respect among the people”an argument that certainly cuts against any presumption that all laws are invalid infringements upon liberty. Barnett’s recovery of the “original” meaning of liberty is, to say the least, eclectic, and it leads him in his final chapters to celebrate novel judicial rulings on individual autonomy and intimacy which recently have fostered boldness by state judges and officials about gay marriage.

Restoring The Lost Constitution is worth arguing with because it emphasizes the right questions and issues, and because it fundamentally respects the rule of law and the inherent meaning of the Constitution. Barnett worries that our Constitution has been denatured by statist judges and jurists”but his solution raises the concern that his libertarian remedy denatures our constitutional order, not only by removing the separation of powers and federalism from the Constitution but also by vitiating the complex structure of morals, law, and liberty that the Constitution is meant to serve. Does the Tenth Amendment empower judges to limit the federal government to those powers expressly provided in the Constitution, with the privileges or immunities clause of the Fourteenth Amendment similarly empowering them to police the states? Isn’t this precisely the shackle on governmental power from the Articles of Confederation that the Constitution repudiated, and didn’t Madison therefore steer the amendments away from gutting federal power and toward protecting traditional common law rights? Is it plausible that Federalist views of robust judicial power can be married to Anti-Federalist skepticism toward government, while omitting the emphatic Anti-Federalist warnings about a tyrannical and aristocratic judiciary?

Such concerns should not crowd out appreciation for Barnett’s defense of natural rights against the skeptical, pragmatist doctrines of recent jurisprudence, which recklessly spend the legal capital built up by more sober jurists over centuries. His search for principled foundations for our constitutionalism and our judicial power helps to restore the legal forms and disciplined approach to interpretation which once separated judging from legislating. Randy Barnett may portray the Constitution as too single-minded, but he brilliantly argues that it does have a mind of its own, and that judges must be governed by it rather than seeking to change it.

Paul O. Carrese is professor of Political Science at the U.S. AirForceAcademy and author of The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (University of Chicago Press). Views expressed here are his own, not of the Academy or the U.S. Government.