Restoring the Lost Constitution: The Presumption of Liberty

Restoring the Lost Constitution: The Presumption of Liberty

Restoring the Lost Constitution: The Presumption of Liberty

Restoring the Lost Constitution: The Presumption of Liberty

Synopsis

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 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 Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.

Excerpt

GROWING UP, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner's argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.

Until I took Constitutional Law at Harvard Law School. The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First was the Necessary and Proper Clause in McCulloch v. Maryland (1819), then the Commerce Clause (a bit) in Gibbons v. Ogden (1824), then the Privileges or Immunities Clause of the Fourteenth Amendment in The Slaughter-House Cases (1873), then the Commerce Clause (this time in earnest) in Wickard v. Filburn (1942), and the Ninth Amendment in United Public Workers v. Mitchell (1947).

Nor were these landmark decisions isolated cases. In countless other opinions, the Supreme Court justices affirmed they meant it when they said the Constitution did not mean what it apparently said. According to the Supreme Court, a majority in Congress could restrict the liberties of the people pretty much any way it wished unless a law violated an express prohibition of the Constitution—or some privileged but unenumerated right such as the right of privacy. Even an express right, such as the “right to keep and bear arms,” could effectively be read out of the Constitution when the Supreme Court disapproved. Were this not enough, the most famous decision in which the Supreme Court had once tried holding the line, Lochner v. New York (1905), was taught along with other cases from the Progressive Era precisely as examples of how courts were not supposed to act. That Lochner is among the worst decisions the Supreme Court ever made was the received and unquestioned wisdom then, and . . .

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