Freedom and the burden of proof: Randy E. Barnett's new book on the constitution.

• Author: Sandefur, Timothy
• Position: Restoring the Lost Constitution: The Presumption of Liberty - Book Review

We cannot believe that construction a sound one, which indulges every reasonable presumption against the citizen, when the legislature deals with his rights, and gives him the benefit of every reasonable doubt, when his life and liberty are in jeopardy before the courts of the country.

--Sadler v. Langham (1859)

It is extraordinarily difficult to review a book such as Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J.: Princeton University Press, 2004), which covers so many subjects and does so with such seemingly effortless common sense. That the book will be controversial only indicts the constitutional scholarship of the past century. In fact, the worst that anyone can justly say about it is that it is too short.

In Restoring the Lost Constitution, Barnett argues two major theses: first, that a constitution's legitimacy rests not on the consent of the governed, but on its consistency with natural rights; second, that the U.S. Constitution, when correctly interpreted, is legitimate. Such an interpretation ultimately justifies what he calls the "presumption of liberty"--that is, a rule that the legislature bears the burden of proving the necessity and propriety of any limit on a person's freedom.

Such a presumption conflicts with current practice. Today's courts split freedoms into two broad categories: favored freedoms, such as speech or religion, receive the treatment that Barnett endorses, under what is called "strict scrutiny," which presumes a law to be unconstitutional unless the government shows it is "narrowly tailored to advance a compelling state interest." Disfavored freedoms--including the unobstructed exchange of private-property rights or the unmolested earning of a living--are accorded only "rational basis scrutiny," under which laws are presumed constitutional unless litigants can prove absolutely that they are not. Barnett makes a convincing case that his approach is much more consistent with the Constitution's original meaning and also more likely to preserve freedom.

Two Strands of Law

"[W]e must choose," Barnett writes, "between two fundamentally different constructions of the Constitution, each resting on a different presumption. We must either accept the presumption that in pursuing happiness persons may do whatever is not justly prohibited, or we are left with a presumption that the government may do whatever is not expressly prohibited" (pp. 268-69). Although he barely mentions it, these conflicting views emerged very early in U.S. legal history. In 1795, Justice Samuel Chase, in his opinion in Calder v. Bull (3 U.S. 386), wrote:

The purposes for which men enter into society will determine the nature and terms of the social compact.... The nature, and ends of legislative power will limit the exercise of it. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power.... An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... A law that punished a citizen for an innocent action that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. (388) Justice James Iredell disagreed. In his view, the legislature was limited only by the explicit provisions of the Constitution.

[T]here is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no." In order, therefore, to guard against so great an evil, it has been the policy of all the American states ... to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void.... If, on the other hand, the Legislature shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. (389) Nor did this dispute originate with Chase and Iredell. The quotation with which Iredell begins this passage comes from William Blackstone, who thirty years before Calder wrote that "[s]overeignty and legislature are indeed convertible terms; one cannot subsist without the other" (1765-69, 1: 46). Blackstone defined sovereignty as "a supreme, irresistible, absolute, uncontrolled authority" (1: 49; see also 2: 160) that "can, in short, do every thing that is not naturally impossible" (2: 161). He explicitly rejected the views of "Mr. Locke, and other theoretical writers" (2: 161) who argued that the natural rights of individuals limited the legitimacy of any sovereign.

In his 1803 edition of Blackstone's Commentaries, lawyer St. George Tucker repudiated Blackstone's view of sovereignty. "[T]he American revolution has formed a new epoch in the history of civil institutions," he wrote, "by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers" such as Locke (Blackstone 1803, 1: appendix A, 4). In England, parliamentary authority was the rule and freedom the exception. In the United States of America, however, freedom was the rule, and government the exception. Thus, as Tucker pointed out, "supreme, irresistible, absolute, uncontrolled authority ... doth not reside in the [American] legislature, nor in any other of the branches of the Government.... For if it did reside in them, or either of them, then would there be no limits, such as may be found in all the American Constitutions, to the powers of Government" (Blackstone 1803, 1:49 n.10). As James Madison wrote, "In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty" (1999, 502).

Tucker's "Whig" view of sovereignty is far more consistent with the American founding than was Blackstone's "Tory" view. For the Founders, "all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity" (Virginia Declaration of Rights, 1776). Blackstone, by contrast, believed, as Herbert Storing puts it, that "the legislature can do what it likes" (1987, 676). It might choose to give people some degree of freedom, but only for prudential reasons, not because the people have a moral right to their freedom. Indeed, in the Blackstonian tradition, there is no freedom antecedent to government. Just as Lewis...