Restoring the Lost Constitution: The Presumption of Liberty

In this excellent book, an academic page turner, Barnett resurrects and reconstructs the commerce, necessary and proper clause and the ninth amendment and the privileges and immunities clauses as meaningful, judicially enforceable restrictions on governmental powers. Barnett takes rights seriously and points out that the Bill of Rights is merely the tip of an actually enacted iceberg of rights that the courts are bound by the constitution to enforce--but do not. Barnett calls on courts to do their duty by these clauses and points out that the refusal of courts, to meaningfully protect rights in the name of judicial restraint is anything but. Barnett exposes the narrowness of the current debate between so called judicial conservatives and judicial liberals by pointing out that all now subscribe to a much narrower definition of rights that the constitution actually provides. For Barnett much of importance in the constitution has simply been discarded by the courts because it gets in the way of the kind of government people now think they want. The great service of Barnett's book is that by showing what has been lost or actually deliberately thrown away he shows the way back if we choose to take it. The larger question is not only whether we should take rights as seriously as the framers but whether we should take written constitutions as seriously as they did as absolutely essential to the preservation of liberties.

Having read most of the current batch of constitutional scholars, and while respectful of their opinions, I believe that none reach the level of Barnett's understanding of the Constitution and the importance his thesis is to all Americans if we want to protect our freedoms from those internally who would deny we even possess rights as individuals. Barnett starts off by providing a strong, though subjective, philospohical basis for the legitimacy of government power over citizens claiming they are truly free. Because this is the only subjective topic reviewed in the book, I've been striving since he published this book to find evidence that rationally or empirically defeats his thesis, I've found none nor have I found anyone with a superior thesis, which is, paraphrased: Legitimate government power over a free populace acheives legitimate consent only as long as its power protects the greater rights of its populace over the lesser rights of others. For example, police power protecting citizens' property against those that would steal other's property. Barnett goes on to make a bullet-proof case that original meaning is the only legitimate interpretative approach and using that approach, what does the constitution mean, especially in terms of what rights we reserve and what powers to gov't have we granted. Constitutionalist theorists like Bork who claim originalist roots that claim we need to use framer intent as filtered by him because the framers didn't provide ample evidence of their meaning is smashed by Barnett. Not only does Barnett provide convincing empirical evidence of the original meaning of the Constitution and many of its important principles and clauses; Barnett even provides ample evidence of the meaning as interpreted by the State Ratifying committees and the understanding by the populace as expressed in the newspapers of the day. I won't divulge here what Barnett finds since i highly recommend purchasing the book and finding out for yourselves. While reviewing the original meaning of the constitution, Barnett provides a surprising twist, he provides very few modern cases that compare the court's rulings to the original meaning. For me at least, that provided me with little chance to stereotype Barnett into an ideological camp. I found this initially frustrating because it forced me during the reading of this section of the book to spend more thinking time understanding his points, but at the end of this section, I was rewarded by embracing the concepts he promotes on their merit by not allowing me to filter his arguments through my own ideological prism. The end of the book does have Barnett reviewing many modern consitutional issues and applying the original meaning as found by Barnett against these cases. The reader will be surpised when media pundits label Barnett as a conservative scholar, as he often is, when in fact his thesis easily destroys any justicification social conservatives have to leverage governmen

What should we do with the Constitution? In this excellent work, Randy E. Barnett proposes a predominantly libertarian answer to that question. (I say 'predominantly' because Barnett is quite clear-eyed and honest in his recognition of the handful of nonlibertarian elements in the document.) Barnett initially addresses the question why we should consider ourselves bound by the Constitution at all, since the idea that it really speaks for every single one of 'the People' for all time is clearly a fiction. His answer will surprise everyone but libertarians: we should regard ourselves as bound by the Constitution because, insofar as, and so long as it is used to enact those laws that preserve and protect our liberty rights. On this foundation Barnett develops a theory of Constitutional interpretation based on 'original meaning' (carefully distinguished from 'original intent' as originally defended by Bork and Meese). The heart of his thesis is that, wherever possible, we ought to prefer a reading that comports with the public understanding of the Constitution at the time it was ratified (which may not, of course, be a precise match for the 'intent' of the framers). He has James Madison on his side here. (Of course a similar argument applies to the various Amendments as of the times _they_ were ratified, so Barnett's 'original meaning' isn't a haven for those who want to undo the Fourteenth Amendment.) Barnett then applies this interpretive approach to the judicial power in order to demonstrate that judicial review -- specifically including the power to nullify unconstitutional laws -- was part of the original understanding of this power. This chapter is quite well argued and, in my view, altogether conclusive on the issue. It's also, unfortunately, quite necessary, because there are people calling themselves 'conservatives' who seem to think judicial review was conjured out of the ether in _Marbury v. Madison_ (1803). (Mark Levin's recent _Men In Black_, for example, is hopelessly muddled on this issue, as Levin fails to distinguish carefully among judicial review, a judicial veto, and judicial supremacy. See my review of that book for further criticism.) Having established that judicial review is part of the original Constitutional scheme (and part of the Constitutional meaning of 'due process'), Barnett then applies his original-meaning methodology to determine just how the Supreme Court ought to interpret various portions of the Constitution in reviewing the legitimacy of legislative enactments. The Necessary and Proper Clause turns out, on his analysis, to delegate to Congress only the power to enact legislation strictly requisite for the exercise of its enumerated powers ('necessary'), and only to the extent that such legislation does not infringe liberty rights ('proper'). The Fourteenth Amendment's Privileges or Immunities Clause turns out to bind state governments to the entire Bill of Rights. (See Michael Kent Curtis's excellent _No Sta

For those who love liberty and want to be better informed about how our Supreme Court has eroded our liberties "Restoring the Lost Constitution" is a book you must read. Barnett, the author, is the Austin B. Fletcher Professor at the Boston University School of Law. In the Preface he recounts how as a student he was disturbed by what he learned in his Constitutional Law class. On the basis of that experience he decided to specialize in contract law where the practice of law was more rational. There he remained until he was tenured. He "came out of the closet" when quite by accident he was asked to give a short talk about a constitutional law issue -- a fascinating story in its own right. Barnett brings his considerable knowledge and experience to bear on constitutional law in "Restoring the Lost Constitution." The first part of the book takes up the subject of constitutional legitimacy. Have you ever had an argument with someone who says, "I never signed onto the constitution, so I'm not bound by it?" Barnett takes that person's side and demolishes one counter argument after another. In reading his arguments I became more and more frustrated. I thought to myself what do I have to tell this guy? The constitution is in place; if you don't like it, make the most of it. But Barnett is much more gentle than that, in part I suppose, because he has an ace up his sleeve. He then figuratively turns to the person he was defending and asks a simple question. "What is the foundation for your belief that you are not bound in conscience to the constitution?" When I got to that point I said to myself, "Gotcha!!" Perhaps you can guess what the answer was and how Barnett uses it, but I am not going to spoil your fun by revealing it. Barnett then proceeds to demonstrate with impeccable logic that the person in question cannot offer that answer without knocking the foundation out from under his own objection to being bound in conscience to a properly formed constitution. He then takes up the subject of constitutional method. Here he makes the vital distinction between intention and meaning. One simply cannot be a mind reader who ferrets out the intentions of the framers of the constitution. In fact, in the tradition of contract law the intentions of the framers is not even primary. What is much more important is the understanding of the ratifying assemblies as to what they were signing onto. However, there is something akin to original intention which is really the only proper way to interpret the constitution. That is original meaning. Later on in the book he takes up the much abused Commerce Clause and examines the original meaning of "commerce", "to regulate", and "among the several states." He looks at the definition of commerce (for example) in Samuel Johnson's "Dictionary of the English Language. He examines every instance of the word in records of the Constitutional Convention, "The Federalist", records of the ratification conventions, the constitution it