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.
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
the Lost Constitution is available for purchase at Laissez Faire
Books -- http://LFB.com
-- delivering the highest value in books since 1972.
WHY CARE WHAT
by Randy Barnett
THE CONSTITUTION SAYS?
"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
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
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
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
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
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
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
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
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.
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