Restoring the Lost Constitution: The Presumption of Liberty.

• Author: Penalver, Eduardo Moises
• Position: Book review

Restoring the Lost Constitution: The Presumption of Liberty BY RANDY E. BARNETT NEW JERSEY: PRINCETON UNIVERSITY PRESS, 2004. PP. 384. $49-95

INTRODUCTION I. NATURAL LAW OR NATURAL RIGHTS? TWO TRADITIONS II. BARNETT'S NONORIGINALIST ORIGINALISM A. Barnett's Argument B. Writtenness and Constraint C. Constraint and Lock-In 1. Constraint 2. Lock-In D. The Nature of Natural Rights III. REVIVING A PROGRESSIVE NATURALISM? CONCLUSION INTRODUCTION

The past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles after years of relative neglect. (1) This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. (2) At the same time, some contemporary progressive constitutional theorists have begun to complain about the inadequacy of the conceptual tools at their disposal to discuss the interface between their moral and constitutional commitments. Robin West, for example, has recently argued that within contemporary liberal constitutional scholarship, "[t]here is almost nothing ... about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of either federal or state legislators to legislate, or to do so in particular ways, or toward particular ends." (3) Related to West's observation, there is an increasing tendency within progressive political circles to bemoan the absence of a vocabulary with which to articulate the moral grounds for the left's political agenda. (4) The natural law tradition would seem to provide a great deal of what these commentators find lacking in current progressive political and legal discussions: rich concepts and language with which to probe the moral character and legitimacy of constitutional law and government action (or inaction). The failure of these constitutional theorists to embrace--or even to really engage with--the natural law tradition, however, reflects its marginal and--at least among progressives--deeply suspect status. (5)

In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In Restoring the Lost Constitution, Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of the Constitution. (6) His position is creatively and engagingly argued and has the potential to reshape the terms of debate on any number of issues. It is therefore unsurprising that Barnett's book has garnered significant attention, both inside the academy and beyond. Steven Calabresi has compared its significance to Richard Epstein's landmark work, Takings. (7) And since its publication, Restoring the Lost Constitution has been the subject of a seemingly endless stream of blog discussions. (8) Barnett's important book, and the substantial commentary it has generated, may well help to foster interest in natural law constitutionalism.

At least part of the progressive aversion to natural law theory, however, is likely rooted in a persistent hunch that there is something inherently conservative about natural law reasoning. It is hard to blame recent observers for forming that opinion. The most prominent of the "new" natural law theorists, after all, have expended enormous energy advocating expansive legal codification of a decidedly "old" sexual morality. (9) Princeton's Robert George, for example, has enthusiastically defended--on natural law grounds--laws criminalizing private, consensual homosexual conduct. (10) And John Finnis has deployed natural law arguments in defense of laws prohibiting the distribution of contraception to unmarried couples. (11) There is no essential connection, however, between natural law reasoning and the specific agenda advocated by George and Finnis.

While Barnett vigorously argues against the sort of morals legislation that George and Finnis have been eager to defend, his libertarian emphasis on unfettered rights of property and contract is likely to reinforce the notion that natural law theorizing is an activity best left to those on the rightmost end of the political spectrum. It would be a mistake, however, to understand Barnett's libertarian version of natural law constitutional theory--any more than George and Finnis's version--as exhausting the possibilities of the tradition. As I argue in Part I, although Barnett's theory of constitutional legitimacy is infused with language drawn from the broader natural law framework, his "natural rights" theory, as he calls it, actually departs in significant ways from the classical natural law tradition. Moreover, there are substantial reasons to favor a version of natural law with implications for state power that are far more progressive. Nor does Barnett establish, as I argue in Part II, that the Constitution itself somehow locks us into a commitment to his libertarian, natural rights version of natural law theory.

Indeed, without changing much in Barnett's account, it is possible to convert his theory from one that supports the conservative goal of limiting the power of government, restricting it to the narrow task of facilitating or preserving property and contract rights, into one that justifies a far more capacious and progressive view. If constitutional legitimacy comes from conformity with justice, as Barnett correctly argues, and if justice entails not only negative constraints protecting the individual from certain forms of state coercion, but also obligations to the community as well as affirmative entitlements held by individuals and groups against the community, then a constitution may well be illegitimate if it merely constrains particular state actions and does not empower, or at times even require, the state to enforce those obligations and satisfy those entitlements. Nor does support for an increased state role in the economic sphere commit a progressive natural law theorist to endorsing state activism in the area of sexual morality. As I argue in Part III and, indeed, throughout this Review, far from being inherently conservative (in the contemporary, popular political sense of that term), natural law constitutional theory is consistent both with respect for a robust sphere of individual autonomy and with active state regulation and redistribution of property.

1. NATURAL LAW OR NATURAL RIGHTS? TWO TRADITIONS

   Throughout his book, Barnett draws heavily on what might, as a generic matter, be termed a traditional "natural law" methodology. As a libertarian, however, Barnett is eager to distance himself from certain aspects of classical natural law jurisprudence, especially its broadly statist tendencies. He therefore refers to himself and his Lockean fellow travelers as "natural rights" theorists, as distinct from "natural law" theorists--a broader category into which he places Thomas Aquinas. (12) "Whereas natural law ethics assesses the propriety of individual conduct," Barnett says, "natural rights assesses the propriety or justice of restrictions imposed on individual conduct." (13) Although I agree with Barnett that there is something fundamentally different about the projects in which Locke and Aquinas were engaged, his precise characterization of that difference is unsatisfying.

   To begin with, while it is true that Aquinas explored the rightness or wrongness of individual actions, he was also, as Barnett recognizes, interested in questions concerning the proper relationship between the individual and the state and between morality and law; that is, he was interested in the same questions of political and legal theory that concern Barnett. (14) Of course, Aquinas's answers to these questions differ in dramatic ways from those offered by Locke (and by Barnett). For example, Locke viewed private ownership as a natural institution preexisting the state, and he regarded the state's principal function as safeguarding those private ownership rights. (15) In contrast, Aquinas understood property as socially constructed and subject to a great deal of communal control and redistribution. (16)

   As Barnett acknowledges, to the extent that Locke and other natural rights theorists have sought to derive their political theory from their own observations about human nature, they share certain basic methodological commitments with those whom Barnett calls "natural law" theorists. (17) Aquinas and Locke (and Barnett) part company, however, when they begin to discuss the actual contours of a normative theory of human nature. Barnett takes issue with the frequent characterization of classical liberal political theory as embracing an "atomistic" conception of the person. (18) He correctly observes that theories of natural rights make no sense outside the context of community because an individual living apart from all others would have no need for the protection of individual rights. "[N]atural rights," he explains, "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." (19)

   This is surely true. An individual living in total isolation need not worry about intrusions on his "liberty," as Barnett understands that term. But Barnett's observation also fails to identify accurately the basis for the critique of classical liberalism at which he is taking aim. (20) The critics to whom Barnett apparently refers do not allege that classical liberals believe that people actually do (or even want to) live as isolated individuals. Instead, they take issue with classical liberal theorists' derivation of the rules of political community from a hypothetical state of nature made up of fully formed, freestanding individuals. (21)

   The classical liberal...