Restoring the Lost Constitution: The Presumption of Liberty.

• Author: Calabresi, Steven G.
• Position: Brief Article - Book Review

RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY. By Randy E. Barnett. Princeton: Princeton University Press. 2004. Pp. xv, 366. $32.50.

In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett (1) lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America. (2) Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision to mean but rather what the original language actually meant to those who used the terms in question. In defending original meaning over original intent, Professor Barnett aligns himself with other sophisticated originalists like Robert H. Bork, Antonin Scalia, Gary Lawson, John Harrison, Akhil Amar, and Michael Paulsen. Barnett's book claims to use the exact methodology those sophisticated originalists use, and he claims that using that methodology leads us to the conclusion that the Constitution mandates libertarianism at both the state and federal level.

This raises the second way in which Restoring the Lost Constitution is of the greatest importance: It is the best defense ever written of a libertarian or conservative/libertarian approach to constitutional law. Barnett's book immediately replaces Richard Epstein's Takings (3) as the leading tome about constitutional law written from a libertarian perspective. Barnett concludes that two key grants of federal power--the Commerce Clause (4) and the Necessary and Proper Clause (5)--should both be read narrowly. From this, Barnett implies that the New Deal was unconstitutional and that the correct reading of federal power was that given in Hammer v. Dagenhart, (6) and not the familiar reading of United States v. Darby. (7) For state laws, Barnett defends a broad interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. (8) Barnett argues that this Clause authorizes all that the Supreme Court has done under its substantive due process case law and then some. Barnett is thus a fan of both Lochner v. New York (9) and Roe v. Wade, (10) decisions that other leading sophisticated originalists like Bork and Scalia have described as abominations. (11) Thus, Barnett's book poses a direct challenge to Bork and Scalia by arguing that their methodology of originalism, in fact, leads to results they abhor.

Third, in addition to defending originalism and a libertarian reading of the Constitution, Restoring the Lost Constitution issues a revolutionary challenge to the whole idea that the Court, in reviewing a congressional statute, should give that law a presumption of constitutionality. This doctrine of judicial restraint, which Barnett correctly traces back to the writings of James Bradley Thayer, (12) has been a guiding light of the Supreme Court's case law since United States v. Carolene Products Co. (13) Barnett argues that the Carolene Products presumption of constitutionality wrongly puts the burden on individuals challenging governmental action; instead, the Ninth Amendment (14) and Privileges or Immunities Clause suggest that the burden should be on the government--federal or state--to show that the law is a necessary and proper invasion of citizens' liberties. Barnett argues that the best way to realize the Ninth Amendment's and the Privileges or Immunities Clause's protection of unenumerated individual rights is by replacing the presumption of constitutionality with a presumption of liberty. This shifting of the burden of proof from the individual to the government is perhaps the most revolutionary and intriguing suggestion made in Restoring the Lost Constitution. It speaks to Barnett's tremendous creativity and his determined commitment to the cause of individual freedom that he was able to conceptualize and defend so radical a move. This feature confirms Barnett's standing as one of the most interesting and thoughtful scholars writing in the field of constitutional law today.

Barnett's book is highly ambitious, and it is probably fair to say that he hopes it will become a manifesto or call-to-action for legions of young libertarian and conservative law students and lawyers. The book calls for a return to the pre-1937 New Deal understandings of the Constitution and is a ringing defense of libertarian/conservative constitutional outcomes. I have no doubt that Barnett will win many converts to his cause and that this book will prove influential for years to come.

The central challenge, though, raised by Professor Barnett's book is over who is right: Professor Barnett, who claims that originalism leads to judicial activism on behalf of a libertarian state, or Justice Scalia and Judge Bork, who claim that originalism leads to judicial restraint. I conclude that while both Barnett and Bork/Scalia contribute to our understanding of the correct answer to these questions, Barnett, for three reasons, has failed in his quest to accurately describe the true original understanding of the Constitution. These three reasons, each discussed separately below, are: (1) that Professor Barnett reads the power-granting and individual-rights-protecting clauses of the Constitution inconsistently; (2) that Professor Barnett, is in the end, wrong about there being a presumption of liberty; and (3) that Professor Barnett fails to rebut, or even discuss, the substantial case conservatives (and some liberals) have made against judicial activism over the last fifty years.

I.

The first serious flaw in Restoring the Lost Constitution is that Professor Barnett seems to follow different approaches in reading the power-granting clauses and the individual-rights-protecting clauses of the Constitution. Put simply, Barnett reads the power-granting clauses very grudgingly, strictly, and narrowly while he treats the rights-protecting provisions as being very open-ended and susceptible to evolution over time. This inconsistent treatment of the Commerce and the Necessary and Proper Clauses on the one hand, and of the Ninth Amendment and the Privileges or Immunities Clause on the other, leads one to question the depth of Professor Barnett's commitment to originalism as a consistent methodology to be used in constitutional interpretation.

The first piece of evidence of Professor Barnett's inconsistency comes with his interpretation of the word "commerce." Barnett discusses the commerce power in Chapter Eleven, where he provides a superb discussion of the interpretive issues originalists face in construing the Commerce Clause (pp. 274-318). Barnett carefully surveys the other uses of the word "commerce" in the Constitution, the meaning of the Indian and Foreign Commerce Clauses, (15) and numerous original uses of the word "commerce." In particular, Barnett looks at usages of the word "commerce" in the Constitutional Convention debates, in The Federalist Papers, and in the Pennsylvania Gazette (a contemporary newspaper) to find out the original meaning of the word "commerce." The end result is a superb originalist treatment of the meaning of "commerce" which concludes that the word "commerce" was almost always used in the narrower sense of meaning "trade or barter" rather than in the broader sense of meaning "any gainful activity."

Similarly, in Chapter Seven, Barnett thoroughly discusses the evidence on the original meaning of the Necessary and Proper Clause and concludes that "necessary" means more than merely convenient but less than indispensable (pp. 173-84). Consequently, intermediate means/ends scrutiny is appropriate when courts are reviewing the "necessity" of a law (p. 176). This inquiry, however, should also determine that the means chosen do not violate individual rights, federalism, or the separation of powers, together with a showing that Congress is not claiming to be pursuing a means merely as a pretext for pursuing some other power not actually delegated to it (p. 190). The final result is a narrow construction of the Necessary and Proper Clause under which many federal claims of power that have been thought to be valid since the New Deal would become unconstitutional.

Barnett's narrow construction of the Commerce and the Necessary and Proper Clauses can be seen by looking to whether federal legislation outlawing child labor and establishing a minimum wage would be constitutional under his reading of the Constitution. It, apparently, would not be constitutional; since Barnett reads the commerce power as extending only to actual trade and not to the pursuit of a gainful activity, it would not reach manufacturing conditions within a particular state. Similarly, the necessary and proper power would not be implicated because Congress would be relying on that Clause only as a pretext for exercising a power over manufacturing that it had not been delegated. In short, under Barnett's reading, United States v. Darby is wrong and Hammer v. Dagenhart was right.

Now, compare this narrow understanding of "commerce" and "necessary and proper" with Barnett's understanding of which "privileges or immunities" are protected under the Fourteenth Amendment. Barnett reads the Privileges or Immunities Clause in a standard manner, protecting the rights enumerated in the Bill of Rights and such basic civil rights as the right to make contracts, own and inherit property, and testify in court. But Barnett goes further, arguing that the Privileges or Immunities Clause protects liberty itself such that things can only be outlawed under the state's police power if the state can show that its police power regulation was a necessary and proper measure...