- Excerpt
RESTORING THE LOST CONSTITUTION:
The Presumption of Liberty
by Randy E. Barnett
INTRODUCTION
The U.S. Constitution found in school textbooks and under glass in Washington
is not the one enforced today by the Supreme Court. In Restoring
the Lost Constitution, Randy Barnett argues that since the nation's
founding, but espe-cially 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 "pre-sumption 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
philosophi-cally 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 Constitution forcefully disputes the con-ventional
wisdom, posing a powerful challenge to which others must now respond.
Randy E. Barnett is the Austin B. Fletcher Professor at the Boston University
School of Law and a senior fellow of the Cato Institute. He is the author
of The Structure of Liberty: Justice and the Rule of Law and a winner of
Laissez Faire Book's Lysander Spooner Award for Advancing the Literature
of Liberty for his new book, Restoring the Lost Constitution: The Presumption
of Liberty.
WHY CARE WHAT THE CONSTITUTION SAYS?
by Randy Barnett
"The powers of the legislature are defined, and limited; and that those
limits may not be mistaken, or forgotten, the constitution is written.
To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by
those intended to be restrained? The distinction, between a government
with limited and unlimited powers, is abolished, if those limits do not
confine the persons on whom they are imposed." -- JOHN MARSHALL (1803)
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 a result of judicial
decisions, these provisions of the Constitution are now largely gone
and, in their absence, the enacted Constitution has been lost and even
forgotten.
Without these missing clauses, the general scheme of the Constitution
has been radically altered, which is precisely why they all had to go.
The Constitution that was actually enacted and formally amended creates
islands of government powers in a sea of liberty. The judicially redacted
constitution creates islands of liberty rights in a sea of governmental
powers. Judicial redaction has created a substantially different constitution
from the one written on parchment that resides under glass in Washington.
Though that Constitution is now lost, it has not been repealed, so it
could be found again.
All this has been done knowingly
by judges and their academic enablers who think they can improve upon
the original Constitution and substitute for it one that is superior.
This begs the question: Why care what the Constitution actually says,
as opposed to what we might prefer it to say (or not say)? Whatever
may be in their hearts, many constitutional scholars write as though
we are not bound by the actual words of the Constitution because those
words are obstacles to noble objectives. One way to slip these bonds
is to imply that the original Constitution is illegitimate by repeating
the refrain that we cannot be bound by the "dead
hand of the past" or by constantly invoking the various sins of the framers.
By delegitimizing the original Constitution, such rhetoric seeks to free
us from its constraints. Yet it is both curious and significant that
few come out and admit this. Why this avoidance? Why not frank confession?
Perhaps because those who practice and advocate judicial amendment of
the Constitution seek the obedience of the faithful and, were their delegitimation
entirely successful, why would anyone obey the commands of a mere judge,
much less a law professor, a philosopher, or a political scientist? Why
obey the commands of the man or woman in a black robe, apart from the
fact that disobedience is likely to land you behind bars in an extremely
treacherous environment?
To openly challenge the legitimacy
of the Constitution -- held sacred and regarded as authoritative by
so much of the public -- would be to admit that there is no "man behind the curtain." Instead,
by subtly undercutting the legitimacy of the Constitution while at
the same time preserving its much-revered form, a judge or even a clever
constitutional scholar can become the man behind the curtain. Pay no
attention to that figure in the black robe or to that bookish professor;
the great and powerful Constitution has spoken!
This is a fraud on the public. Imply
but do not say aloud that the Constitution is illegitimate so we need
not follow what it actually says. Remake it -- or "interpret" it --
as one wills and then, because it is The Constitution we are expounding,
the loyal but unsophisticated citizenry will follow. This strategy
also allows one to adopt a stance of moral superiority toward past
generations without having to assume the responsibility of proclaiming
that the document they wrote and by which the government rules is of
no authority.
Because it is constantly under siege,
the Constitution's legitimacy cannot be taken for granted. Unless we
openly confront the question of its legitimacy, we cannot respond to
those who would replace it with something they think is better. We
will never know whether we should obey it, improve upon it, or ignore
it altogether. In this book, I begin by asking and answering the question
that others shy away from: Why should anyone obey the commands issued
by persons who claim to be authorized by the Constitution?
I explain why the most commonly
held view of constitutional legitimacy -- the "consent of the governed" -- is wrong because it is a standard
that no constitution can meet. Holding the Constitution to this unattainable
ideal both undermines its legitimacy and allows others to substitute
their own meaning for that of the text. This result is paradoxical because,
notwithstanding the great expansion of suffrage, any new and improved "interpretation" of
the Constitution will also fail to be legitimated by the "consent of
the governed." And this fiction turns dangerous when factions purporting
to speak for "the People" claim the power to restrict the liberties of
all.
Equally untenable is the principal
alternative to the "consent of the
governed": the argument that the benefits received by citizens from a
constitutional order and a duty of fair play obligate them, in return,
to obey laws regardless of whether they consent to them. By dispensing
with any need for obtaining even the fictional consent of the governed,
this alternative turns out to be even more dangerous to liberty. We can
do much better.
I contend that lawmaking by real
unanimous consent is both possible and pervasive, although not in the
sort of polity governed by present-day constitutions. Even in the absence
of such consent, however, laws can still bind in conscience if the
constitution that governs their making, application, and enforcement
contains adequate procedures to assure that restrictions imposed on
nonconsenting persons are just (or not unjust). Such a constitutional
order can be legitimate even if it was not consented to by everyone;
and a constitution that lacks adequate procedures to ensure the justice
of valid laws is illegitimate even if it was consented to by a majority.
Indeed, only by realizing that the "consent of the
governed" is a fiction can one appreciate the imperative that lawmakers
respect whatever may be the requirements of justice.
Although my thesis concerning legitimacy
does depend on the claim that "justice" is
independent of whatever may happen to be commanded by positive law, it
does not depend on acceptance of any particular conception of justice.
Regardless of what conception of justice one holds, constitutional legitimacy
can be seen as a product of procedural assurances that legal commands are
not unjust. Even those who reject the view of justice held by the founders,
and which I have defended elsewhere, can accept this conception of constitutional
legitimacy provided they also accept the proposition that justice is independent
of legality. That is, that laws are not just solely because they are validly
enacted.
To assess the legitimacy of any
given legal system, however -- including the system governed by the
Constitution of the United States -- requires both this procedural
conception of legitimacy and a theory of justice by which to assess
the adequacy of lawmaking procedures it employs. In short, while readers
need not agree with the founders' or my conception of justice based
on "natural rights" to accept the procedural conception of constitutional
legitimacy I shall advance, they must produce and defend a conception of
justice before they can pass judgment on the legitimacy of the Constitution.
So must I.
To that end I will explain the founders'
view that "first come rights,
and then comes the Constitution." The rights that precede the formation
of government they called "natural rights." I contend that if a constitution
contains adequate procedures to protect these natural rights, it can be
legitimate even if it was not consented to by everyone; and one that lacks
adequate procedures to protect natural rights is illegitimate even if it
was consented to by a majority.
The natural rights to which they
and I refer are the "liberty rights" that,
given the nature of human beings and the world in which we live, make it
possible for each person to pursue happiness while living in close proximity
to others and for civil societies to achieve peace and prosperity. It is
precisely because the consent of the governed is impossible on a national
scale that a constitution must provide protection for the preexisting rights
retained by the people if the laws it sanctions are to create a duty of
obedience in a nonconsenting public.
With this analysis of constitutional
legitimacy and natural rights, we will then be in a position to understand
why the words of the Constitution should be interpreted according to
their original meaning and, where this meaning is incomplete or vague,
how the inevitable gaps in meaning ought to be filled. Although I do
not believe we are bound by the dead hand of the past, I will explain
how, by committing ourselves to a written constitution, we commit ourselves
to adhere to the original meaning of the text and any later amendments.
In addition, original meaning must be respected so that those who are
to govern by laws have little or no hand in making the laws by which
they govern. We will also see that, where the original meaning is incomplete
or vague, the text must be "construed," as opposed to "interpreted," in
a way that enhances its legitimacy without contradicting the meaning that
does exist.
It will then be time to examine the original meaning of key provisions
of the text that have been either distorted or excised entirely from the
judges' Constitution and ignored: the Commerce and the Necessary and Proper
Clauses in the original Constitution, the Ninth Amendment, and the Privileges
or Immunities Clause of the Fourteenth Amendment. We will also need to
examine the nature and scope of the so-called police power of states --
a power that appears nowhere in the text of the Constitution and results
from construction rather than interpretation.
Finally, I shall show how, when
the meaning of these missing provisions is correctly understood, we
can choose properly between two opposing constructions of the powers
the Constitution delegates to government officials: Are all restrictions
on the liberties of the people to be presumed constitutional unless
an individual can convince a hierarchy of judges that the liberty is
somehow "fundamental"? Or should we presume that any restriction on
the rightful exercise of liberty is unconstitutional unless and until the
government convinces a hierarchy of judges that such restrictions are both
necessary and proper? The first of these is called "the presumption of
constitutionality." While this construction has never been accepted in
its entirety, the exceptions that have been created to it are revealing
in the way they run afoul of the text. The second of these constructions
may be called the Presumption of Liberty, which can provide a practical
way to restore the lost Constitution.
It is an open question whether the U.S. Constitution -- either as written
or as actually applied -- is in fact legitimate. Intellectual honesty requires
us to acknowledge the possibility that no constitution lacking unanimous
consent is capable of producing laws that bind in conscience. Therefore,
while the theory of constitutional legitimacy, the conception of natural
rights, the method of constitutional interpretation, the interpretations
of key clauses, and the Presumption of Liberty I advance here all raise
serious questions -- is there any constitutional theory that does not?
-- readers should think long and hard before rejecting them. For the alternative
may be to admit that, when judges pronounce constitutional law, there really
is no one behind the curtain and their commands are utterly devoid of binding
authority.
We need not, I submit, reach this conclusion. The lost Constitution has
not, after all, been repealed. It remains before our eyes and its restoration
within our grasp. Once it is remembered in its entirety, the case for a
constitutional Presumption of Liberty becomes compelling. But to restore,
we must first remember.
COPYRIGHT NOTICE: Published by Princeton University Press and copyrighted,
(c) , 2004 by Princeton University Press. All rights reserved. No part
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