Restoring the Lost Constitution
Encyclopedia
Restoring the Lost Constitution: The Presumption of Liberty is a 2003 book about the United States Constitution
written by Randy Barnett
, a professor of law at the Georgetown University Law Center
. In the book, Barnett outlines his theory of constitutional legitimacy, interpretation and construction. He argues for an interpretation of the Constitution based on its "original meaning" (as distinct from the founders' original intent
). Restoring the Lost Constitution was awarded the 2005 Lysander Spooner Award for Advancing the Literature of Liberty by Laissez Faire Books
.
Below is a summary of the arguments made in the book.
. In other words, the people consent to the Constitution like any other contract and are thus bound by its terms. But since the Constitution binds all citizens, such consent would need to be unanimous—completely impractical in any reasonably large country.
In response, some propose theories of tacit or implicit consent. By voting, living, or not overthrowing the country, these theories say, a citizen agrees to be bound by its laws. The book argues that true consent must be unambiguous and this "consent" is far from that—people might simply do those things as a pragmatic choice, not because they truly consent to the country's laws.
Instead, Barnett proposes what he calls the necessary and proper theory of constitutional legitimacy: People begin with basic natural rights. Governments are set up to protect those rights. A Constitution is legitimate if it requires all laws passed under it to be both:
Since all such necessary and proper laws protect the rights of the governed, they receive their legitimacy from the "higher power" of natural rights and thus bind us in conscience.
Some propose a liberal theory of interpretation, where the goals of the framers are considered and adapted to the modern day, considering the practical consequences of various interpretations. However, such a system does away with most of the value of having a single written Constitution, replacing it with the considered wishes of judges. This leads to serious problems of legitimacy: judges claim that they are doing X not because they personally like it, but because the Constitution requires it. But how can they make such a claim if they've replaced the Constitution in this way? And why should we follow their pronouncements if they have?
Others propose a theory of original intent
, where you look at the original intent of the framers and ratifiers of the Constitution, as evidenced by their speeches, writings, and notes and apply the Constitution as they intended it to be applied. But this is impractical: the key framers can hardly be said to have a single "intent", let alone the Constitutional conventions and the citizens who ratified the result. Even worse, the original intent of the Framers was not for the Constitution to be interpreted based on their intent.
Barnett proposes a theory of original meaning
, where you look at the common meaning of the text in the era it was written (based on dictionaries and other uses of the same phrases or words) and apply that. This takes advantage of the fact that the Constitution is written down, and its text is the one thing that all parties have agreed upon. (This is also apparently how the Framers intended for it to be interpreted.)
? Building the rules and tests for applying such provisions is called construction.
Barnett proposes a rule that when the text is vague and construction is required, a construction is chosen which is:
In general, this is the more precise and limiting construction of the Constitution.
The largest of them is the Commerce Clause
. Following its original meaning, it gives Congress the power to make rules about the process of trade between the states. Congress cannot regulate agriculture or manufacture (which all take place within a state), nor can it prohibit the interstate sale of an item outright (which is more than simply making rules).
Another large grant of power is the Necessary and Proper Clause. Following its original meaning, it gives Congress the power to do additional things necessary for using its other powers. Following Madison, a power is justified under this clause if it is:
(This test might be called the NPRI test, although Barnett doesn't use this term.)
For example, while Congress has the power to establish courts, it doesn't have the power to build courthouses. But since courthouses are necessary to protect the rights of the aggrieved, proper, since they don't abridge anyone else's rights, required to actually have a functioning court, and incident to the nature of a court, Congress may build a courthouse.
Note that building courthouses doesn't need to be "indispensable". The Court could conceivably do without a courthouse—it could meet at a public park or one of the justice's houses. But a meetingplace of one sort or another is required, so the courthouse passes the required test.
However, if Congress wanted to do something that might restrict someone's rights, like use eminent domain to take the land for a courthouse, the test would require that Congress use the "least restrictive alternative" (also known as having the law be "narrowly tailored"). Only if no less restrictive alternative (like buying the land) was available could Congress use their power.
Because the test itself includes the necessary and proper requirements that we saw above were required for constitutional legitimacy, it ensures all of Congress's additional powers are legitimate. And since all of Congress's other enumerated powers, when interpreted using their original meaning, also only permit Congress to do things which are necessary, the Constitution ensures the federal government's scope is wholly legitimate: they are only permitted to do things which are necessary to protect the rights of their citizens.
The Constitution is less clear about the scope of state power. However, an investigation of discussion of the Constitution around the time of its ratification finds that states are limited to what's known as their "police power
". While much greater than the explicitly enumerated powers of the federal government, the states' police power is nonetheless limited to protecting the "health, safety, and public morals" of their citizens. But outright prohibition of items (e.g. laws against alcohol) as well as the regulation of private morals (e.g. laws against sodomy) are outside the state's power.
Since the states are limited only to these things, which are all necessary to protect their citizens' rights, the state government's scope is wholly legitimate.
And states? For many years, the federal government did not protect its citizens from an abuse of power by the states. But after slavery, the Fourteenth Amendment
allowed the federal courts to overturn state laws.
The most important part of the amendment is the Privileges or Immunities Clause
. However, Barnett argues the clause was drained of meaning by the Supreme Court's ruling in the Slaughterhouse Cases
and many of its requirements were moved to other parts of the amendment.
For example, the clause protected against laws which unfairly treated one group of citizens as different from another. Now such laws are overturned as violating the Equal Protection Clause
, which, following its original meaning, only required the states to apply laws equally.
Also, laws which take away liberty or property are overturned as violating the Due Process Clause, using something called substantive due process (as opposed to procedural due process). These rights were originally meant to be protected by the privileges or immunities clause, and the due process clause only required a fair process to be applied when applying a legitimate law to take things away.
But perhaps most importantly, the clause extended all the propriety tests for federal laws (like those in the first ten amendments) to state laws as well. It also prevented states from interfering with any rights that weren't in the Constitution but were granted by Congress.
It's easy enough to see how the courts can decide if a law exceeds Congress's powers, and is thus unnecessary: Simply check the law against the list of enumerated powers.
But how to decide if it fails the requirements for propriety discussed above? It's tempting to do something similar and simply check the law against the list of enumerated rights. But the Ninth Amendment says (in its entirety) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely only overturning laws that violate enumerated rights would violate the unenumerated ones.
So the Ninth Amendment requires us to treat all rights the same. We could ignore them all, but that wouldn't do us much good. Instead, Barnett proposes a construction called "The Presumption of Liberty".
If you challenge a law, and the Court finds that it violates the people's liberty (not just license, as a law against murder would), then to keep the law, the government must convincingly argue that it is necessary and proper. In other words, laws restricting liberty are assumed to be unconstitutional, unless the government has a particularly convincing argument.
This puts all rights (enumerated and unenumerated) on an equal footing, while leaving the enumerated rights in much the same place as they are today. For example, while the First Amendment
protects "freedom of speech", the Supreme Court has been willing to uphold regulations which it finds necessary to achieve a compelling government interest.
Barnett uses, as an analogy, the example of going to see the Constitution and finding it filled with holes. He argues that the Constitution followed by the courts is simply not the one written down and under glass, and that the only honest thing to do is to restore the lost constitution.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
written by Randy Barnett
Randy Barnett
Randy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
, a professor of law at the Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
. In the book, Barnett outlines his theory of constitutional legitimacy, interpretation and construction. He argues for an interpretation of the Constitution based on its "original meaning" (as distinct from the founders' original intent
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
). Restoring the Lost Constitution was awarded the 2005 Lysander Spooner Award for Advancing the Literature of Liberty by Laissez Faire Books
Laissez Faire Books
Laissez Faire Books is an online bookseller that was originally based in New York City when it first opened in 1972. The bookstore's ownership was transferred to the International Society for Individual Liberty in November 2007...
.
Summary
Restoring the Lost Constitution is broken into four parts, each addressing an aspect of the U.S. Constitution.- Constitutional Legitimacy - describes the most common arguments for constitutional legitimacy, and argues against them in practical terms. Barnett suggests that in practice it is impossible for any constitution to derive its legitimacy from consent, but it must rather derive legitimacy through "necessity" and "propriety".
- Constitutional Method
- Constitutional Limits
- Constitutional Powers
Below is a summary of the arguments made in the book.
Legitimacy
Some suggest that the Constitution gains legitimacy through the consent of the governedConsent of the governed
"Consent of the governed" is a phrase synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised...
. In other words, the people consent to the Constitution like any other contract and are thus bound by its terms. But since the Constitution binds all citizens, such consent would need to be unanimous—completely impractical in any reasonably large country.
In response, some propose theories of tacit or implicit consent. By voting, living, or not overthrowing the country, these theories say, a citizen agrees to be bound by its laws. The book argues that true consent must be unambiguous and this "consent" is far from that—people might simply do those things as a pragmatic choice, not because they truly consent to the country's laws.
Instead, Barnett proposes what he calls the necessary and proper theory of constitutional legitimacy: People begin with basic natural rights. Governments are set up to protect those rights. A Constitution is legitimate if it requires all laws passed under it to be both:
- necessary to protect the rights of others
- proper insofar as they do not violate the preexisting rights of those on whom they are imposed.
Since all such necessary and proper laws protect the rights of the governed, they receive their legitimacy from the "higher power" of natural rights and thus bind us in conscience.
Interpretation
How do we interpret the Constitution? It is not always clear, and even when it is, should we reevaluate what it says for our modern era?Some propose a liberal theory of interpretation, where the goals of the framers are considered and adapted to the modern day, considering the practical consequences of various interpretations. However, such a system does away with most of the value of having a single written Constitution, replacing it with the considered wishes of judges. This leads to serious problems of legitimacy: judges claim that they are doing X not because they personally like it, but because the Constitution requires it. But how can they make such a claim if they've replaced the Constitution in this way? And why should we follow their pronouncements if they have?
Others propose a theory of original intent
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
, where you look at the original intent of the framers and ratifiers of the Constitution, as evidenced by their speeches, writings, and notes and apply the Constitution as they intended it to be applied. But this is impractical: the key framers can hardly be said to have a single "intent", let alone the Constitutional conventions and the citizens who ratified the result. Even worse, the original intent of the Framers was not for the Constitution to be interpreted based on their intent.
Barnett proposes a theory of original meaning
Original meaning
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today...
, where you look at the common meaning of the text in the era it was written (based on dictionaries and other uses of the same phrases or words) and apply that. This takes advantage of the fact that the Constitution is written down, and its text is the one thing that all parties have agreed upon. (This is also apparently how the Framers intended for it to be interpreted.)
Construction
Sometimes, applying the original meaning theory, the Constitution is perfectly clear. When it says the President must be thirty-five years old, it's easy to tell who passes that test and who doesn't. But often it leaves wide latitude in application. What, for example, constitutes a "search" under the Fourth AmendmentFourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
? Building the rules and tests for applying such provisions is called construction.
Barnett proposes a rule that when the text is vague and construction is required, a construction is chosen which is:
- consistent with the original meaning of the constitution
- furthers constitutional principles (e.g. separation of powers, federalism) and enhances legitimacy (by protecting natural rights)
In general, this is the more precise and limiting construction of the Constitution.
Necessary
The Constitution is clear about the proper scope of the federal government: it is a limited government restricted to using only the powers expressly described in the Constitution. These powers are quite narrow.The largest of them is the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
. Following its original meaning, it gives Congress the power to make rules about the process of trade between the states. Congress cannot regulate agriculture or manufacture (which all take place within a state), nor can it prohibit the interstate sale of an item outright (which is more than simply making rules).
Another large grant of power is the Necessary and Proper Clause. Following its original meaning, it gives Congress the power to do additional things necessary for using its other powers. Following Madison, a power is justified under this clause if it is:
- necessary to protect the rights of some
- proper, insofar as it does not abridge the background rights of others
- required to exercise an enumerated power
- incident to the nature of that power
(This test might be called the NPRI test, although Barnett doesn't use this term.)
For example, while Congress has the power to establish courts, it doesn't have the power to build courthouses. But since courthouses are necessary to protect the rights of the aggrieved, proper, since they don't abridge anyone else's rights, required to actually have a functioning court, and incident to the nature of a court, Congress may build a courthouse.
Note that building courthouses doesn't need to be "indispensable". The Court could conceivably do without a courthouse—it could meet at a public park or one of the justice's houses. But a meetingplace of one sort or another is required, so the courthouse passes the required test.
However, if Congress wanted to do something that might restrict someone's rights, like use eminent domain to take the land for a courthouse, the test would require that Congress use the "least restrictive alternative" (also known as having the law be "narrowly tailored"). Only if no less restrictive alternative (like buying the land) was available could Congress use their power.
Because the test itself includes the necessary and proper requirements that we saw above were required for constitutional legitimacy, it ensures all of Congress's additional powers are legitimate. And since all of Congress's other enumerated powers, when interpreted using their original meaning, also only permit Congress to do things which are necessary, the Constitution ensures the federal government's scope is wholly legitimate: they are only permitted to do things which are necessary to protect the rights of their citizens.
The Constitution is less clear about the scope of state power. However, an investigation of discussion of the Constitution around the time of its ratification finds that states are limited to what's known as their "police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
". While much greater than the explicitly enumerated powers of the federal government, the states' police power is nonetheless limited to protecting the "health, safety, and public morals" of their citizens. But outright prohibition of items (e.g. laws against alcohol) as well as the regulation of private morals (e.g. laws against sodomy) are outside the state's power.
Since the states are limited only to these things, which are all necessary to protect their citizens' rights, the state government's scope is wholly legitimate.
Proper
Several constitutional provisions (notably Article I, sections 9 and 10, and the first ten amendments) added restrictions to make sure the federal government's exercise of its powers was proper. The first eight amendments protected some of the most important rights (freedom of religion, liberty and property, freedom of speech, etc.), while the ninth protected all the other rights which weren't named, and the tenth required that Congress stick to its enumerated powers. Together, these ensured the propriety of federal laws.And states? For many years, the federal government did not protect its citizens from an abuse of power by the states. But after slavery, the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
allowed the federal courts to overturn state laws.
The most important part of the amendment is the Privileges or Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....
. However, Barnett argues the clause was drained of meaning by the Supreme Court's ruling in the Slaughterhouse Cases
Slaughterhouse Cases
The Slaughter-House Cases, were the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution...
and many of its requirements were moved to other parts of the amendment.
For example, the clause protected against laws which unfairly treated one group of citizens as different from another. Now such laws are overturned as violating the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
, which, following its original meaning, only required the states to apply laws equally.
Also, laws which take away liberty or property are overturned as violating the Due Process Clause, using something called substantive due process (as opposed to procedural due process). These rights were originally meant to be protected by the privileges or immunities clause, and the due process clause only required a fair process to be applied when applying a legitimate law to take things away.
But perhaps most importantly, the clause extended all the propriety tests for federal laws (like those in the first ten amendments) to state laws as well. It also prevented states from interfering with any rights that weren't in the Constitution but were granted by Congress.
Enforcement
So how do we enforce all these rules? The legislature can simply not pass any law they believe to be unconstitutional. The executive can veto or refuse to enforce a law he thinks is unconstitutional. And finally, the courts can "nullify" (or overturn) any law they find unconstitutional. (The Constitutional convention, the state ratification debates, and others all assumed the judiciary had this power, even though the Constitution does not explicitly say so.) Since the legislature and executive have mostly abdicated their responsibility here, the job falls mostly to the judiciary.It's easy enough to see how the courts can decide if a law exceeds Congress's powers, and is thus unnecessary: Simply check the law against the list of enumerated powers.
But how to decide if it fails the requirements for propriety discussed above? It's tempting to do something similar and simply check the law against the list of enumerated rights. But the Ninth Amendment says (in its entirety) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely only overturning laws that violate enumerated rights would violate the unenumerated ones.
So the Ninth Amendment requires us to treat all rights the same. We could ignore them all, but that wouldn't do us much good. Instead, Barnett proposes a construction called "The Presumption of Liberty".
If you challenge a law, and the Court finds that it violates the people's liberty (not just license, as a law against murder would), then to keep the law, the government must convincingly argue that it is necessary and proper. In other words, laws restricting liberty are assumed to be unconstitutional, unless the government has a particularly convincing argument.
This puts all rights (enumerated and unenumerated) on an equal footing, while leaving the enumerated rights in much the same place as they are today. For example, while the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
protects "freedom of speech", the Supreme Court has been willing to uphold regulations which it finds necessary to achieve a compelling government interest.
Rollback
Over the years, Barnett argues, the Constitution's original meaning has been slowly eviscerated.- The Commerce ClauseCommerce ClauseThe Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
has been interpreted as allowing Congress to regulate practically anything, starting with meatpackers in Swift v. United States (1905) and going all the way to hotels in Heart of Atlanta Motel v. United StatesHeart of Atlanta Motel v. United StatesHeart of Atlanta Motel Inc. v. United States, 379 U.S. 241 , was a landmark United States Supreme Court case holding that the U.S. Congress could use the Constitution's Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964.- Background :This important case...
(1964). The unchecked expansion was finally thrown into doubt when the Court drew a line in United States v. LopezUnited States v. LopezUnited States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
(1995), but even this was heavily contentious, and Gonzales v. RaichGonzales v. RaichGonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
(2005) reaffirmed the court's 1930s claim that private growth of plants for personal consumption, with no actual commerce involved, was "interstate commerce".
- The Necessary and Proper Clause has been read to allow Congress to do whatever they find not only necessary and proper, but also convenient for exercising their enumerated powers, starting with the creation of a federal bank in McCullough vs. Maryland (1819).
- The Second Amendment has simply been ignored.
- The Fifth AmendmentFifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
's takings clauseEminent domainEminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
has been neutered by reading "public use" as "public purpose". See Kelo v. New London.
- The privileges or immunities clause has been interpreted as meaningless redundancy, starting with allowing Louisiana to create a slaughterhouse monopoly in the Slaughter-House CasesSlaughterhouse CasesThe Slaughter-House Cases, were the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution...
(1873).
- Ignoring the Ninth Amendment or treating it as if it were redundant to the Tenth Amendment has become Supreme Court policy, starting with the famous footnote four of United States v. Carolene Products Co.United States v. Carolene Products Co.United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
(1938), which held that only rights listed in the first ten amendments could be protected by the courts. (Carolene Products itself ruled that Congress could prohibit entire forms of milk.)
- The Tenth Amendment has been made meaningless, insofar as Congress has assumed (and the Courts have permitted it) the power to do almost anything.
Barnett uses, as an analogy, the example of going to see the Constitution and finding it filled with holes. He argues that the Constitution followed by the courts is simply not the one written down and under glass, and that the only honest thing to do is to restore the lost constitution.