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Review: Restoring the Lost Constitution

Restoring the Lost Constitution: The Presumption of Liberty
Randy E. Barnett
Princeton University Press (2003), $32.50, 381 pages

Reviewed by Francois Krodel

Like an old house that has become run-down and dilapidated through neglect and abuse, the US Constitution of today is not the one meant by its authors. Randy Barnett, professor of law at Boston University, lays out a plan
to salvage it in his latest book Restoring the Lost Constitution: The Presumption of Liberty. He chronicles the two hundred-year steady hollowing of the principles underpinning the US Constitution and then proceeds to build a case on how to salvage it.

James Madison believed, as did most Founding Fathers, that the foundation for a just and moral constitution lay in one based on the presumption of liberty. Man's dark side of exploiting and imposing his will on others was well known to the Founders. They incorporated constructs into the Constitution to impede special interests to act upon these impulses. Inevitably, there arose those who began to regard such safeguards as roadblocks to "desirable" results.

And the way to get those results is to delegitimize the Constitution's principles by viewing the document as a "living" one. Barnett strikes back in the first few chapters to build a novel case for a binding adherence to the
founding principles of liberty. He argues that constitutional legitimacy cannot be grounded simply on the basis of the "consent of the governed": " one morally obligated to obey any law that is enacted according to constitutional
procedures?" Furthermore, how can one bind a citizen to a constitution agreed to by neither himself nor his ancestors? The answer: ground the constitution in the moral force of natural rights.

The Founders viewed natural rights as those inherent rights people held apart and beyond the reach of government. Without such bounded freedom, there can be no "society in which people can pursue happiness, and in which
civil society can enjoy peace and prosperity." But such a concept of liberty displeases those, both on the left and the right, who desire to commandeer government's near monopoly on violence to achieve desired ends.

Barnett notes that although "originalism" has taken a ferocious beating in the past few decades, a resurgent wave of scholars, including himself, has come to the rescue. Instead of making a case on "original intent", which he finds
wanting, Barnett quotes both James Madison and Lysander Spooner to argue for "original meaning", an interpretation of the Constitution as understood by the general reader at the time of enactment. And, as Barnett notes, having a constitution written down serves a clarifying function to provide "good evidence of what terms were actually enacted when later they might be disputed." This "locks in" lawmakers from altering the law to which
they themselves are bound.

The responsibility for enforcing such restrictions lies with the judiciary branch. Barnett argues that though the Constitution is not explicit, the overwhelming historical evidence supports the judiciary's power to nullify
unconstitutional laws. Thus, the burden of proving constitutionality resides in the legislature. The existence of the Necessary and Proper Clause, the Fourteenth Amendment, and the Ninth Amendment all support this view. However, the Supreme Court, from its beginning under John Marshall, has steadily shifted its stance
to one of "presumption of constitutionality." That is, the Court assumes legislation as constitutionally sound except when an enumerated right is expressly violated. This deference to the legislature has allowed a " ... system of islands of powers in a sea of individual liberty rights at both the state and national levels .... " to become "... islands of rights in a sea of state and federal power."

Barnett points to Justice Kennedy's revolutionary decision in Lawrence v. Texas (2003), which rejected the state of Texas' case for supporting its ban on sodomy, as the way out of the current situation. Kennedy based his argument
not on the right of privacy, but on the right to liberty as found in the 14th Amendment. Grounded in the Ninth Amendment, Barnett's prescription is to return the philosophy of judicial review to its rightful origins: the presumption of liberty. Barnett concedes the need for reasonable restrictions on rightful acts; for example, when such regulations "are shown to be necessary to prevent the future violation of rights of others." When a court is faced with a hard case, he feels that in order for the rule of law to be maintained, society must accept the outcome even when the ending is not a "happy" one.
I have two critiques. The first is unavoidable. Barnett is not aiming for the lay reader, but to those familiar with Constitutional debates on originalism. He assumes a familiarity of the Constitutional issues involved that the
general reader will not likely possess, and thus, keeps the book from reaching the wider audience it deserves. Despite difficulty appreciating the nuances of the argument, such a reader should still be able to grasp the central theme. Second, I wish Barnett had spent a little more time shoring up the moral moorings of natural rights philosophy. By doing so, his case for liberty rights would pack more of a punch in the moral debate.

Nonetheless, Randy Barnett has come up with a great book which I hope isn't his last in this much needed debate. He ends with an optimistic view that all is not lost. That grand old house called the US Constitution, long neglected and run down, is waiting for citizens to breathe new life into it and return it to the greatness envisioned by its architects. Now, all is left is for enough republican-spirited citizens to make it happen.

Francois Krodel is pursuing his Master of Arts in Interdisciplinary Studies at George Mason University.