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Restoring the Lost Constitution: The Presumption of Liberty
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 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.
Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining 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.
384 pages, Paperback
First published January 1, 2003
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October 17, 2016
In the case of Mike P v Restoring the Lost Constitution: The Presumption of Liberty, the court handed down an unanimous decision, 5 Stars. Last summer I was making my way across the country (returning from a Midwest family wedding) when I heard on successive days about two Supreme Court decisions (Jun 25, 2015, King v. Burwell and Jun 26, 2015, Obergefell v. Hodges). A comment on the radio was made that with these decisions, the Supremes had destroyed both statutory law and common law as guiding principles…and that we now have a judicial oligarchy. All you need to do is convince 5 unelected, permanent members of the Supreme Court to rule a law is good or not. Doesn’t matter what the law says or what our common law is. Just get 5 black robes to agree.
I have taken the military officer’s oath many times, which includes: “I,….do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same…..” I had an idealized, uninformed impression of the Constitution but what did it really mean? What was I doing in the service defending this piece of paper? With this current crazy election campaign for the next president, it was time to find out. This book, perhaps not all that interesting to the non-US citizen, should be read by any US citizen or aspiring immigrant. Barnett does a fantastic job of reviewing how and why the Constitution (and our current legal system) came to be in its current form. Here is a brief summary of the topics covered:
“We have seen how a written constitution is used to “lock in” certain rights and procedures so they are not easily changed by majority or minority factions. Lock-in requires that the original meaning of these provisions be maintained until the writing is amended. If this original meaning creates a lawmaking process that is good enough to produce laws that are binding in conscience, then the original scheme is legitimate. The Necessary and Proper Clause dictates that a federal law must be both necessary and proper. According to the original meaning of “proper,” reinforced by the Tenth Amendment, a federal law must be a means to the achievement of an object or power enumerated in the text. Most of the enumerated powers are inoffensive to the background rights or liberties retained by the people. Even the one power that most often is relied upon to justify legislation affecting liberty, the commerce power, interpreted according to its original meaning, is consistent with the rights retained by the people.”
I was fascinated by the topics, although I had to focus because he treats you like an adult, he doesn’t dumb down the discussion for non-lawyer types. He explains how a constitution and laws can be “binding in conscience” even when the citizens didn’t consent to them. What are “natural rights” and “liberty rights”; what are “enumerated rights and unenumerated rights”; how do you deal with areas not well defined (or completely missing) through “Constitutional Construction”; judicial review of Federal and State laws – very interesting; the 9th and 10th Amendments; the Progressive era change from “government is a necessary evil, keep it small” to “government is vital to addressing social concerns, make it omnipresent”; Footnote Four and Footnote Four Plus (sounds wonky but you will see how these play out in today’s legal disputes at the Court). Several areas stood out. He explains how “original intent” is not viable but “original meaning” is vital in applying the Constitution. Another area I was riveted by was that the States were not constrained by the Bill of Rights prior to the Civil War.
Early on, the issue arose whether state laws were unconstitutional if they violated the rights enumerated in the Bill of Rights. In the 1833 decision of Barron v. Baltimore, the Marshall Court ruled that the Bill of Rights did not apply to state governments, a decision that most likely reflected the original intent of those who wrote and ratified the first ten amendments. In the years leading up to the Civil War, unencumbered by any federal scrutiny, local officials routinely suppressed abolitionist speech and the freedom of the abolitionist press. They denied abolitionists and free blacks the equal protection of the laws from mob violence and terrorism. After the war, the black codes and other measures violated the right of blacks and Republicans to keep and bear arms to protect themselves from mobs and other violence, as well as the natural rights of blacks to hold property and enter into contracts. Under the Constitution as then construed, neither Congress nor federal courts had the power to offer relief from these violations of rights.
After the Republicans in Congress abolished slavery with the Thirteenth Amendment, they then set out to address these other abuses rights by passing the Civil Rights Act of 1866. President Johnson vetoes the act on the ground that it was outside the enumerated powers of Congress. Although his veto was overridden, many in Congress worried that its constitutional authority was shaky and that, because it was only a statute, a future Congress might repeal the act. Republicans in Congress responded to all this by adopting the Fourteenth Amendment, thereby changing fundamentally the constitutional structure. Along with this change, as we shall see, came an increased responsibility of the federal courts to scrutinize the necessity and propriety of state as well as federal legislation.
In the end, Professor Barnett argues that we should use a “presumption of liberty” in applying the Constitution. The document is more libertarian than commonly interpreted and the role of government must be returned to a much less intrusive and expansive place in the national arena. I will need to reread this book for all the topics to really sink in but I have a good foundation to go read about the Founders and their inspired efforts to create a nation unlike any other.
With the impending election of a corrupt New York progressive candidate (really doesn’t matter which one), several of the liberties enshrined in the US Constitution are sure to be shredded in the near future, further demolishing the protections in this amazing document. Barnett gives us guidance on how to return to the freer State we were meant to be. Unfortunately, it may be left to my kids or grandkids to do it. We are currently headed down the wrong path.
I have taken the military officer’s oath many times, which includes: “I,….do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same…..” I had an idealized, uninformed impression of the Constitution but what did it really mean? What was I doing in the service defending this piece of paper? With this current crazy election campaign for the next president, it was time to find out. This book, perhaps not all that interesting to the non-US citizen, should be read by any US citizen or aspiring immigrant. Barnett does a fantastic job of reviewing how and why the Constitution (and our current legal system) came to be in its current form. Here is a brief summary of the topics covered:
“We have seen how a written constitution is used to “lock in” certain rights and procedures so they are not easily changed by majority or minority factions. Lock-in requires that the original meaning of these provisions be maintained until the writing is amended. If this original meaning creates a lawmaking process that is good enough to produce laws that are binding in conscience, then the original scheme is legitimate. The Necessary and Proper Clause dictates that a federal law must be both necessary and proper. According to the original meaning of “proper,” reinforced by the Tenth Amendment, a federal law must be a means to the achievement of an object or power enumerated in the text. Most of the enumerated powers are inoffensive to the background rights or liberties retained by the people. Even the one power that most often is relied upon to justify legislation affecting liberty, the commerce power, interpreted according to its original meaning, is consistent with the rights retained by the people.”
I was fascinated by the topics, although I had to focus because he treats you like an adult, he doesn’t dumb down the discussion for non-lawyer types. He explains how a constitution and laws can be “binding in conscience” even when the citizens didn’t consent to them. What are “natural rights” and “liberty rights”; what are “enumerated rights and unenumerated rights”; how do you deal with areas not well defined (or completely missing) through “Constitutional Construction”; judicial review of Federal and State laws – very interesting; the 9th and 10th Amendments; the Progressive era change from “government is a necessary evil, keep it small” to “government is vital to addressing social concerns, make it omnipresent”; Footnote Four and Footnote Four Plus (sounds wonky but you will see how these play out in today’s legal disputes at the Court). Several areas stood out. He explains how “original intent” is not viable but “original meaning” is vital in applying the Constitution. Another area I was riveted by was that the States were not constrained by the Bill of Rights prior to the Civil War.
Early on, the issue arose whether state laws were unconstitutional if they violated the rights enumerated in the Bill of Rights. In the 1833 decision of Barron v. Baltimore, the Marshall Court ruled that the Bill of Rights did not apply to state governments, a decision that most likely reflected the original intent of those who wrote and ratified the first ten amendments. In the years leading up to the Civil War, unencumbered by any federal scrutiny, local officials routinely suppressed abolitionist speech and the freedom of the abolitionist press. They denied abolitionists and free blacks the equal protection of the laws from mob violence and terrorism. After the war, the black codes and other measures violated the right of blacks and Republicans to keep and bear arms to protect themselves from mobs and other violence, as well as the natural rights of blacks to hold property and enter into contracts. Under the Constitution as then construed, neither Congress nor federal courts had the power to offer relief from these violations of rights.
After the Republicans in Congress abolished slavery with the Thirteenth Amendment, they then set out to address these other abuses rights by passing the Civil Rights Act of 1866. President Johnson vetoes the act on the ground that it was outside the enumerated powers of Congress. Although his veto was overridden, many in Congress worried that its constitutional authority was shaky and that, because it was only a statute, a future Congress might repeal the act. Republicans in Congress responded to all this by adopting the Fourteenth Amendment, thereby changing fundamentally the constitutional structure. Along with this change, as we shall see, came an increased responsibility of the federal courts to scrutinize the necessity and propriety of state as well as federal legislation.
In the end, Professor Barnett argues that we should use a “presumption of liberty” in applying the Constitution. The document is more libertarian than commonly interpreted and the role of government must be returned to a much less intrusive and expansive place in the national arena. I will need to reread this book for all the topics to really sink in but I have a good foundation to go read about the Founders and their inspired efforts to create a nation unlike any other.
With the impending election of a corrupt New York progressive candidate (really doesn’t matter which one), several of the liberties enshrined in the US Constitution are sure to be shredded in the near future, further demolishing the protections in this amazing document. Barnett gives us guidance on how to return to the freer State we were meant to be. Unfortunately, it may be left to my kids or grandkids to do it. We are currently headed down the wrong path.
January 7, 2014
I almost don't know where to start. This book, unlike most written by scholars today, is both readable and tightly woven together with very little extraneous material. I'm not even going to attempt a proper review, but rather note a few points that really impressed me:
I definitely have a new found respect for the Ninth Amendment. The anti-federalists had a good point in fearing the Bill of Rights would be treated as the extent of rights to be protected, though the rights that need to be protected are far too numerous to list. Given Footnote Four, their worries were well grounded. The Ninth Amendment, if followed, would place a burden upon the government to prove their legislation is based upon an enumerated power for a legitimate need.
Speaking of which, it seems insane to me that we presume acts of government are constitutional until proven otherwise. We might have better government if we presumed people may enjoy their liberty until Congress proves otherwise. No, I'm not saying Congress should have to get the judiciary's opinion before passing laws, but if a law is challenged, the burden of proof should lie with the Government to prove they have authority to act rather than with the challenger to prove they didn't.
I noticed this before reading this book, but how the Supreme Court decides if a right is "fundamental" or not makes literally no sense at all. Footnote Four's approach of "everything is constitutional if not denied by the Constitution" is consistent though bad, Barnett's approach of "everything is constitutional only if the Constitution allows such laws" is consistent and good, but our current approach "judges will magically tell us which rights are fundamental and which not with no respect to the Constitution" is groundless.
Barnett makes a great case for originalism properly done. The difference between interpreting words and constructing different meanings is important. He dispatches the critique against originalism that we cannot have "an" original meaning with so many different participants in the Constitutional Convention (aka original intent) by pointing out their opinions are not the law of the land; the text of the Constitution is, and there is only one objective text there to work with (Barnett calls this original meaning). Period appropriate background sources, like letters and the Federalist Papers, may certainly be used to interpret words, but ultimately the Constitution is the final arbiter.
The word "regulate" does not mean "prohibit." It means "make regular." Somebody tell Congress.
"Interstate" means between states. Somebody tell Congress.
"Commerce" does not mean any kind of activity or inactivity. Somebody tell Congress.
We the People do not consent on anything. We never really have a chance to say no, I don't consent, and without that there is no real consent. Our Constitution cannot be based on consent.
Congress is not The People. The laws they make, to the extent they represent us at all, represent maybe a majority, but certainly not all of us. A more accurate description would be We the Temporary Majority, but that doesn't have the same moral force as We the People.
The laws are not justified by consent. I do not need your consent not to hurt you. Laws are just because they protect our liberties from each other without unduly impinging upon them itself. Of course, this only works if the government is kept to protect rights; once that line is crossed, some other method of justification is required, hence the myths that abound today.
Perhaps the most important point comes at the end of his revised edition. Important constitutional changes that have reduced our liberty and expanded the power of government were not just imposed by judges, but by the society that elected those appointing the judges. We can get back to a decent constitution, but only if we really want to. It won't be imposed from above.
I definitely have a new found respect for the Ninth Amendment. The anti-federalists had a good point in fearing the Bill of Rights would be treated as the extent of rights to be protected, though the rights that need to be protected are far too numerous to list. Given Footnote Four, their worries were well grounded. The Ninth Amendment, if followed, would place a burden upon the government to prove their legislation is based upon an enumerated power for a legitimate need.
Speaking of which, it seems insane to me that we presume acts of government are constitutional until proven otherwise. We might have better government if we presumed people may enjoy their liberty until Congress proves otherwise. No, I'm not saying Congress should have to get the judiciary's opinion before passing laws, but if a law is challenged, the burden of proof should lie with the Government to prove they have authority to act rather than with the challenger to prove they didn't.
I noticed this before reading this book, but how the Supreme Court decides if a right is "fundamental" or not makes literally no sense at all. Footnote Four's approach of "everything is constitutional if not denied by the Constitution" is consistent though bad, Barnett's approach of "everything is constitutional only if the Constitution allows such laws" is consistent and good, but our current approach "judges will magically tell us which rights are fundamental and which not with no respect to the Constitution" is groundless.
Barnett makes a great case for originalism properly done. The difference between interpreting words and constructing different meanings is important. He dispatches the critique against originalism that we cannot have "an" original meaning with so many different participants in the Constitutional Convention (aka original intent) by pointing out their opinions are not the law of the land; the text of the Constitution is, and there is only one objective text there to work with (Barnett calls this original meaning). Period appropriate background sources, like letters and the Federalist Papers, may certainly be used to interpret words, but ultimately the Constitution is the final arbiter.
The word "regulate" does not mean "prohibit." It means "make regular." Somebody tell Congress.
"Interstate" means between states. Somebody tell Congress.
"Commerce" does not mean any kind of activity or inactivity. Somebody tell Congress.
We the People do not consent on anything. We never really have a chance to say no, I don't consent, and without that there is no real consent. Our Constitution cannot be based on consent.
Congress is not The People. The laws they make, to the extent they represent us at all, represent maybe a majority, but certainly not all of us. A more accurate description would be We the Temporary Majority, but that doesn't have the same moral force as We the People.
The laws are not justified by consent. I do not need your consent not to hurt you. Laws are just because they protect our liberties from each other without unduly impinging upon them itself. Of course, this only works if the government is kept to protect rights; once that line is crossed, some other method of justification is required, hence the myths that abound today.
Perhaps the most important point comes at the end of his revised edition. Important constitutional changes that have reduced our liberty and expanded the power of government were not just imposed by judges, but by the society that elected those appointing the judges. We can get back to a decent constitution, but only if we really want to. It won't be imposed from above.
May 5, 2012
In 2003, the Supreme Court declared that people who challenge the constitutionality of an economic regulation must "negative every conceivable basis" for that regulation if they are to prevail (Fitzgerald v. Racing Ass'n of Central Iowa). In other words, laws controlling private property or economic activity are presumed constitutional unless shown to be utterly arbitrary, without any evidence whatsoever in their favor. There was nothing novel about this: the Supreme Court has held this view for the past seventy years.
In Restoring the Lost Constitution, Randy Barnett takes aim at this idea with an argument laced with common sense. His book, subtitled "The Presumption of Liberty", brings together arguments he has made in previous articles and books with the goal of providing a systematic defense of a libertarian interpretation of the U.S. Constitution.
He begins with the fundamental question: What makes government legitimate? He then proceeds to define the meaning of legal texts objectively, rather than on the basis of the subjective preferences of authors or contemporary political expediency. His project is an ambitious one for in doing this Barnett challenges a generation of legal theory from across the political spectrum, but does so without polemics, relying on the clarity of his arguments and the common-sense appeal of his positions to make his case. The result is a well-organized book that discusses the legitimacy, method and limits of the Constitution. He concludes with a section on the powers of the constitution that discusses both federal and state roles with a chapter on judicial applications.
In the final chapter Barnett makes clear the extent to which the Constitution has been "lost" and how the "Presumption of Liberty" would restore those sections that have been ignored for many decades. This is a magnificent defense of Constitutional liberty.
In Restoring the Lost Constitution, Randy Barnett takes aim at this idea with an argument laced with common sense. His book, subtitled "The Presumption of Liberty", brings together arguments he has made in previous articles and books with the goal of providing a systematic defense of a libertarian interpretation of the U.S. Constitution.
He begins with the fundamental question: What makes government legitimate? He then proceeds to define the meaning of legal texts objectively, rather than on the basis of the subjective preferences of authors or contemporary political expediency. His project is an ambitious one for in doing this Barnett challenges a generation of legal theory from across the political spectrum, but does so without polemics, relying on the clarity of his arguments and the common-sense appeal of his positions to make his case. The result is a well-organized book that discusses the legitimacy, method and limits of the Constitution. He concludes with a section on the powers of the constitution that discusses both federal and state roles with a chapter on judicial applications.
In the final chapter Barnett makes clear the extent to which the Constitution has been "lost" and how the "Presumption of Liberty" would restore those sections that have been ignored for many decades. This is a magnificent defense of Constitutional liberty.
October 8, 2007
This is a good book because it asks new "why nots" about constitutional interpretation I didn't hang on every word; it can for the most part be skimmed. My favorite part is the explanation (in the introduction I think) of why the author did not like constitutional law when he was in law school, which I think was refreshingly honest.
May 31, 2023
Barnett makes an academic case for a presumption of liberty for the citizen (rather than the inconsistently applied presumption of constitutionality for the government), which would provide a more coherent judicial philosophy that aligns with the intent of the Constitution’s framers. It proved a challenging read for a novice like myself but quite compelling all the same.
May 12, 2017
I don't agree with Barnett, but he makes a compelling case... right up until he addresses the question of what sorts of checks on judicial authority would be necessary. He covers those in about a page. In one sense, this is an old-fashioned book: Barnett is more concerned with the overreaches of a legislature than with the overreaches of the executive or judicial branches, which was one of the leading concerns in the founding era. I don't know that time has justified that concern.
May 29, 2018
Heavily researched study of the constitution, complete with a history of important changes in the interpretation of the constitution have effected lawmaking and citizens alike. Proposes a rational framework for interpreting the constitution, respecting all of it's original provisions and meaning, while allowing future generations to modify it, following the original guidelines as laid out by the founders.
August 2, 2018
In Restoring the Lost Constitution, Professor Barnett explicates a theory of Constitutional interpretation based on its original public meaning and demonstrates how an adherence to this theory gives vitality to the entirety of the document as written, including large swatches of it which have through the use of other forms of Constitutional interpretation been essentially written out of existence. He also distinguishes between the objective “public meaning” originalism and the more subjective (and abuse prone) school of originalism based on the “drafter’s intent”. The writing is academic and both philosophically and legally dense so probably not for the casual reader, however, highly recommended to those with an interest in the law and the way in which judges interpret the Constitution.
January 31, 2021
Barnett argues that “consent of the governed” is a fictitious justification for constitutional legitimacy. Rather, he argues that the protection of natural rights, both enumerated and unenumerated, is what legitimizes the social contract. Interpreting the contract ought to follow the original meaning, rather than intent, according to a standard of “writtenness”. However, even the original meaning is sometimes vague, and in such cases a presumption of liberty should be made by the courts regarding the wrongful regulation of rightful conduct and the allowance of wrongful conduct. A presumption of constitutionality should be made so long as the statute is within the original meaning of the constitution, and the statute is justly regulating rightful behavior or prohibiting wrongful behavior.
April 27, 2020
Enjoyable yet dry. Very technical but informing. I am passionate about the subject thus it was a good read.
March 14, 2025
A more expansive book than Our Republican Constitution which makes the same basic originalist case for substantive due process, arguing that the US government is founded on natural rights where the people retain sovereignty as individuals and states rather than as a collective We. Barnett’s use of originalism is original meaning as opposed to original intent based on the publicly available meaning at time of enactment, something acquired from a reading of Lysander Spooner, an abolitionist lawyer who argued contrary to other abolitionists that the text of the constitution did not sanction slavery. The notion of natural rights presented is of a normative nature, of the rightful liberty of action one has to pursue ends rather than the ends themselves or the validity of the source of lawful commands.
Also from Spooner is a critique of popular sovereignty established from voting short of unanimity, for the question is how the majority may justly bind the minority? Barnett’s answer is that so long as a state acts for the good of its subjects and does not violate their natural rights then a law is legitimate even if not approved by all or even a majority. This means unanimous consent of the governed is not necessary besides an at least tacit obedience of just laws. The question of popular sovereignty however I think applies to the legislative power when governments demanded more of their subjects such as paying taxes and military service in exchange for royal concessions. The formula is less consent more rights and more consent less rights.
The fifth and fourteenth amendments explicitly guarantee due process to life liberty and property which are Lockean natural rights while the 9th and 10th amendments express the social compact via enumerated powers and federalism in that powers not mentioned in the constitution are retained by the people as individuals and states, but not everything can be considered a fundamental right if they are subject to the police power and takings for public use with just compensation at the state level and enumerated powers at the federal level as Madison said the powers of the federal government are few and defined while those of the state numerous and indefinite. The language of privileges and immunities however is what Barnett relies on to incorporate liberties among the states. These unenumerated due process rights amount to negative rights to do what has traditionally been legal or not prohibited, especially as the bill of rights enshrined particular rights in case the government is not kept to its rightful sphere not creating extra rights which was Robert Bork’s take. This is my conservative take on Lockean liberties-the presumption of liberty is not unlimited.
Some police power guidance is given to 1 proscribe actions which do violate the rights of others or affect the public as opposed to private and to 2 prescribe the rightful exercise of liberties by time place and manner as to not cause harm to others but this too is very broad. In essence this means what people originally and currently have a right to do and future encroachments are viewed with suspicion which fits my conservatism. This was behind much of the Lochner era decisions when such labor laws were novel and did enact restrictions of contract but even then the court recognized police power restrictions and upheld the rest of the bakeshop act besides the working hour restrictions which the majority saw as not sufficiently related to public health. The dissent from Harlan accepted a liberty of contract but thought the hour regulations were sufficiently related to health and named his criterion a “real and substantial” relation precursor to rational basis. Such labor regulations did not explicitly involve takings since they did not require hiring or paying anybody but prescribed the conditions to do so under the police power, though it is understandable that they’d be seen as controversial when new.
Barnett’s attempt to ground substantive due process within originalism is both daring and humbling but I think runs into the challenge of how to define the scope of the police power ultimately comes down to who legitimately decides which may go beyond what libertarians want a government to do. Barnett’s justification of federal authority may also be unpalatable to strict conservatives and libertarians as well as it accepts judicial review and the post-reconstruction role of the federal government ensuring civil liberties against states. From a conservative perspective it leans too hard into kritarchy-rule by judiciary-whereas I’d have the elected representatives and their chief executive accountable to the people safeguard their liberties via checks and balances, not the judicial review innovations of Marshall (in my opinion). My view leans more into the We the People view of the people as ultimate sovereign (another Bork take minus the positivism) but by the mechanisms of Calhoun’s concurrent majority to protect minority interests.
Also from Spooner is a critique of popular sovereignty established from voting short of unanimity, for the question is how the majority may justly bind the minority? Barnett’s answer is that so long as a state acts for the good of its subjects and does not violate their natural rights then a law is legitimate even if not approved by all or even a majority. This means unanimous consent of the governed is not necessary besides an at least tacit obedience of just laws. The question of popular sovereignty however I think applies to the legislative power when governments demanded more of their subjects such as paying taxes and military service in exchange for royal concessions. The formula is less consent more rights and more consent less rights.
The fifth and fourteenth amendments explicitly guarantee due process to life liberty and property which are Lockean natural rights while the 9th and 10th amendments express the social compact via enumerated powers and federalism in that powers not mentioned in the constitution are retained by the people as individuals and states, but not everything can be considered a fundamental right if they are subject to the police power and takings for public use with just compensation at the state level and enumerated powers at the federal level as Madison said the powers of the federal government are few and defined while those of the state numerous and indefinite. The language of privileges and immunities however is what Barnett relies on to incorporate liberties among the states. These unenumerated due process rights amount to negative rights to do what has traditionally been legal or not prohibited, especially as the bill of rights enshrined particular rights in case the government is not kept to its rightful sphere not creating extra rights which was Robert Bork’s take. This is my conservative take on Lockean liberties-the presumption of liberty is not unlimited.
Some police power guidance is given to 1 proscribe actions which do violate the rights of others or affect the public as opposed to private and to 2 prescribe the rightful exercise of liberties by time place and manner as to not cause harm to others but this too is very broad. In essence this means what people originally and currently have a right to do and future encroachments are viewed with suspicion which fits my conservatism. This was behind much of the Lochner era decisions when such labor laws were novel and did enact restrictions of contract but even then the court recognized police power restrictions and upheld the rest of the bakeshop act besides the working hour restrictions which the majority saw as not sufficiently related to public health. The dissent from Harlan accepted a liberty of contract but thought the hour regulations were sufficiently related to health and named his criterion a “real and substantial” relation precursor to rational basis. Such labor regulations did not explicitly involve takings since they did not require hiring or paying anybody but prescribed the conditions to do so under the police power, though it is understandable that they’d be seen as controversial when new.
Barnett’s attempt to ground substantive due process within originalism is both daring and humbling but I think runs into the challenge of how to define the scope of the police power ultimately comes down to who legitimately decides which may go beyond what libertarians want a government to do. Barnett’s justification of federal authority may also be unpalatable to strict conservatives and libertarians as well as it accepts judicial review and the post-reconstruction role of the federal government ensuring civil liberties against states. From a conservative perspective it leans too hard into kritarchy-rule by judiciary-whereas I’d have the elected representatives and their chief executive accountable to the people safeguard their liberties via checks and balances, not the judicial review innovations of Marshall (in my opinion). My view leans more into the We the People view of the people as ultimate sovereign (another Bork take minus the positivism) but by the mechanisms of Calhoun’s concurrent majority to protect minority interests.
June 1, 2013
Adam C. Zern shares his thoughts . . .
"Randy Barnett's Restoring the Lost Constitution is an 'achievement' book. Although not as long or as difficult to read as some books I have read, finishing Restoring the Lost Constitution left me feeling filled and enlightened, even accomplished on a small scale. There is a tremendous amount of information - historical, legal, ideological - in Randy Barnett's book. Completing it made me feel like a genuinely smarter person.
I love American history and studying the Constitution and law from an academic perspective. I have wanted to read Mr. Barnett's book for many months. The book is not a primer. It assumes knowledge of certain basic legal and constitutional theories, arguments, etc. In that regard, there are more readable and approachable books that deal with this particular topic. (The Dirty Dozen by Robert Levy and William Mellor would be one example). However, if one feels comfortable wading into academically charged Constitutional waters, this book is an absolute joy. The arguments are interesting, although reiterated one too many times, the historical information presented is enlightening, and the main thrust of the book-the presumption of liberty-is worth understanding for anyone, regardless of ideology.
I would highly recommend Restoring the Lost Constitution to anyone with an established knowledge of Constitutional law (although additional knowledge in ideology and political science would be helpful). Otherwise, most people would get completely buried in the book's contents. I loved the book and will point to it as a fine, albeit small, accomplishment having read it."
http://thethousanderclub.blogspot.com/
"Randy Barnett's Restoring the Lost Constitution is an 'achievement' book. Although not as long or as difficult to read as some books I have read, finishing Restoring the Lost Constitution left me feeling filled and enlightened, even accomplished on a small scale. There is a tremendous amount of information - historical, legal, ideological - in Randy Barnett's book. Completing it made me feel like a genuinely smarter person.
I love American history and studying the Constitution and law from an academic perspective. I have wanted to read Mr. Barnett's book for many months. The book is not a primer. It assumes knowledge of certain basic legal and constitutional theories, arguments, etc. In that regard, there are more readable and approachable books that deal with this particular topic. (The Dirty Dozen by Robert Levy and William Mellor would be one example). However, if one feels comfortable wading into academically charged Constitutional waters, this book is an absolute joy. The arguments are interesting, although reiterated one too many times, the historical information presented is enlightening, and the main thrust of the book-the presumption of liberty-is worth understanding for anyone, regardless of ideology.
I would highly recommend Restoring the Lost Constitution to anyone with an established knowledge of Constitutional law (although additional knowledge in ideology and political science would be helpful). Otherwise, most people would get completely buried in the book's contents. I loved the book and will point to it as a fine, albeit small, accomplishment having read it."
http://thethousanderclub.blogspot.com/
July 25, 2013
Interesting Quote:
"Contrary to the claims of critics of classical liberalism, then, natural rights are not conceived as 'presocial'; [88] nor do they assume 'atomistic' individuals. Rather, natural rights are those rights that are needed precisely to protect individuals and associations from the power of others--including the power of the stronger, of groups, and of the State--when and only when persons are deeply enmeshed in a social context. Such rights would be entirely unnecessary if individuals were not in society with each other, or if the actions of some persons did not adversely affect the welfare of others."
Footnote 88: These rights are, however, conceived of analytically as pregovernmental. Perhaps the charge that liberals conceive of rights as presocial is persistent because some critics of liberalism are so committed to statism that they equate government with society.
-Randy Barnett, Restoring the Lost Constitution
"Contrary to the claims of critics of classical liberalism, then, natural rights are not conceived as 'presocial'; [88] nor do they assume 'atomistic' individuals. Rather, natural rights are those rights that are needed precisely to protect individuals and associations from the power of others--including the power of the stronger, of groups, and of the State--when and only when persons are deeply enmeshed in a social context. Such rights would be entirely unnecessary if individuals were not in society with each other, or if the actions of some persons did not adversely affect the welfare of others."
Footnote 88: These rights are, however, conceived of analytically as pregovernmental. Perhaps the charge that liberals conceive of rights as presocial is persistent because some critics of liberalism are so committed to statism that they equate government with society.
-Randy Barnett, Restoring the Lost Constitution
August 25, 2013
Restoring the Lost Constitution is an excellent, scholarly work. It details how the Supreme Court has skewed the Constitution with intellectually shabby and result-oriented opinions, particuarly since the New Deal era. According to the Court, much of the Constitution either doesn't say what it says, or doesn't mean what it says. Professor Barnett's book might be a difficult read in places for those who aren't already fairly familiar with the document's history and text. But it is well worth the time of anyone who truly wants to understand the "originalist" approach to the Constitution. Even for readers who may not agree with all his arguments, Professor Barnett's book is an outstanding resource.
November 10, 2008
Restoring the Lost Constitution did a pretty good job at establishing the Presumption of Liberty which the courts ought to be employing when rendering their decisions. However, I disagree with the basic premise of the book which is that the Constitution is binding upon all in conscience, whether or not you consent to be governed. I think that if federal courts adopted Barnett's premise of adjudication then the results of the courts would be a lot more consistent. Many arguments over semantics and foundations of word meanings at the time the Constitution was adopted may be interesting for lexicographers and etymologists, but this really wasn't my bag.
August 6, 2009
Do you make statements about Constitutionality, or listen to those who do, all the while having an almost mythical impression of the Constitution (for better or for worse) as some supremely powerful yet vague and abstract object? This book offers intellectual and moral salvation from the tea leaves of modern political punditry and practice. The Constitution is a legal document that you can understand, and you can feel good about it if you don't get caught up in how it's been treated by the government.
July 28, 2009
Barnett was my con law professor. He's a fierce libertarian and an originalist to be reckoned with. He lays to bed all the straw men passed for originalist constitutional interpretation these days and puts forth a comprehensive approach to constitutional theory. I don't know if I'll ever escape his influence on my own amateurish legal thought.
February 13, 2012
A friend recommended this book to me. I am thankful I read this book. Law professor Randy Barnett hit a home run! This book is very interesting and it is well researched. This should be required reading for any student who wants to understand our current US Constitution. I plan to read this book again in the future.
October 29, 2016
Loved the book. Cogent defense of "the presumption of liberty" approach to constitutional law. Unique in that it was scholarly yet understandable to a layman like me with no legal training. Highest recommendation.
November 16, 2007
all about original meaning originalism...
June 23, 2008
this has become a classic in the libertarian legal world-- it's a thorough (and brilliant) philosophical basis for limited government.
January 31, 2017
Fascinating read -- a libertarian perspective on Constitutional interpretation.
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