Restoring the Lost Constitution

Restoring the Lost Constitution

Infobox Book
name = Restoring the Lost Constitution: The Presumption of Liberty
title_orig =
translator =

image_caption = 2004 Cover
author = Randy Barnett
illustrator =
cover_artist =
country = United States
language = English
series =
subject = U.S. Constitution
genre = Non-fiction
publisher = Princeton University Press
pub_date =
english_pub_date =
media_type = Print (Hardback & Paperback)
pages = 394 pp "(first edition)"
isbn = ISBN 0691115850
oclc =
preceded_by =
followed_by =

"Restoring the Lost Constitution: The Presumption of Liberty" is a book about the U.S. constitution by Randy Barnett (a Professor of Law at Boston University School of Law), in which he outlines his theory of constitutional legitimacy, interpretation and construction. He argues for an interpretation of the Constitution based on its "original meaning" (as distinct from the founders' original intent). "Restoring the Lost Constitution" was awarded the "2005 Lysander Spooner Award for Advancing the Literature of Liberty" by Laissez Faire Books. [Princeton University Press Restoring the Lost Constitution [ website] . Retrieved on 2007-12-31.]


"Restoring the Lost Constitution" is broken into 4 parts, each addressing an aspect of the U.S. Constitution.

# Constitutional Legitimacy - describes the most common arguments for constitutional legitimacy, and argues against them in practical terms. Barnett suggests that in practice it is impossible for any constitution to derive its legitimacy from consent, but it must rather derive legitimacy through "necessity" and "propriety".
# Constitutional Method
# Constitutional Limits
# Constitutional Powers

A summary of the book's argument follows:


A general theory of constitutions.


Why should we follow the Constitution? Why should laws produced in accordance with its stuffy old rules apply to us today?

Some suggest that the Constitution gains legitimacy through the consent of the governed. In other words, the people consent to the Constitution like any other contract and are thus bound by its terms. But since the Constitution binds all citizens, such consent would need to be unanimous -- completely impractical in any reasonably large country.

In response, some propose theories of tacit or implicit consent. By voting, living, or not overthrowing the country, these theories say, a citizen agrees to be bound by its laws. But true consent must be unambiguous and this "consent" is far from that -- people might simply do those things as a pragmatic choice, not because they truly consent to the country's laws.

Instead, Barnett proposes what he calls the necessary and proper theory of constitutional legitimacy: People begin with basic natural rights. Governments are set up to protect those rights. A Constitution is legitimate if it requires all laws passed under it to be both:

# "necessary" to protect the rights of others
# "proper" insofar as they do not violate the preexisting rights of those on whom they are imposed.

Since all such necessary and proper laws protect the rights of the governed, they receive their legitimacy from the "higher power" of natural rights and thus bind us in conscience.


How do we interpret the Constitution? It is not always clear, and even when it is, should we reevaluate what it says for our modern era?

Some propose a liberal theory of interpretation, where the goals of the framers are considered and adapted to the modern day, considering the practical consequences of various interpretations. However, such a system does away with most of the value of having a single written Constitution, replacing it with the considered wishes of judges. This leads to serious problems of legitimacy: judges claim that they are doing X not because they personally like it, but because the Constitution requires it. But how can they make such a claim if they've replaced the Constitution in this way? And why should we follow their pronouncements if they have?

Others propose a theory of original intent, where you look at the original intent of the framers and ratifiers of the Constitution, as evidenced by their speeches, writings, and notes and apply the Constitution as they intended it to be applied. But this is impractical: the key framers can hardly be said to have a single "intent", let alone the Constitutional conventions and the citizens who ratified the result. Even worse, the original intent of the Framers was "not" for the Constitution to be interpreted based on their intent.

Barnett proposes a theory of original meaning, where you look at the common meaning of the text in the era it was written (based on dictionaries and other uses of the same phrases or words) and apply that. This takes advantage of the fact that the Constitution is written down, and its text is the one thing that all parties have agreed upon. (This is also apparently how the Framers intended for it to be interpreted.)


Sometimes, applying the original meaning theory, the Constitution is perfectly clear. When it says the President must be thirty-five years old, it's easy to tell who passes that test and who doesn't. But often it leaves wide latitude in application. What, for example, constitutes a "search" under the Fourth Amendment? Building the rules and tests for applying such provisions is called construction.

Barnett proposes a rule that when the text is vague and construction is required, a construction is chosen which is:
# consistent with the original meaning of the constitution
# furthers constitutional principles (e.g. separation of powers, federalism) and enhances legitimacy (by protecting natural rights)

In general, this is the more precise and limiting construction of the Constitution.


The specific application of the theory to the US Constitution.


The Constitution is clear about the proper scope of the federal government: it is a limited government restricted to using only the powers expressly described in the Constitution. These powers are quite narrow.

The largest of them is the commerce clause. Following its original meaning, it gives Congress the power to make rules about the process of trade between the states. Congress cannot regulate agriculture or manufacture (which all take place within a state), nor can it prohibit the interstate sale of an item outright (which is more than simply making rules).

Another large grant of power is the necessary-and-proper clause. Following its original meaning, it gives Congress the power to do additional things necessary for using its other powers. Following Madison, a power is justified under this clause if it is:

# "necessary" to protect the rights of some
# "proper", insofar as it does not abridge the background rights of others
# "required" to exercise an enumerated power
# "incident" to the nature of that power

(This test might be called the NPRI test, although Barnett doesn't use this term.)

For example, while Congress has the power to establish courts, it doesn't have the power to build courthouses. But since courthouses are necessary to protect the rights of the aggrieved, proper, since they don't abridge anyone else's rights, required to actually have a functioning court, and incident to the nature of a court, Congress may build a courthouse.

Note that building courthouses doesn't need to be "indispensable". The Court could conceivably do without a courthouse -- it could meet at a public park or one of the justice's houses. But a meetingplace of one sort or another is required, so the courthouse passes the required test.

However, if Congress wanted to do something that might restrict someone's rights, like use eminent domain to take the land for a courthouse, the test would require that Congress use the "least restrictive alternative" (also known as having the law be "narrowly tailored"). Only if no less restrictive alternative (like buying the land) was available could Congress use their power.

Because the test itself includes the necessary and proper requirements that we saw above were required for constitutional legitimacy, it ensures all of Congress's additional powers are legitimate. And since all of Congress's other enumerated powers, when interpreted using their original meaning, also only permit Congress to do things which are necessary, the Constitution ensures the federal government's scope is wholly legitimate: they are only permitted to do things which are necessary to protect the rights of their citizens.

The Constitution is less clear about the scope of state power. However, an investigation of discussion of the Constitution around the time of its ratification finds that states are limited to what's known as their "police power". While much greater than the explicitly enumerated powers of the federal government, the states' police power is nonetheless limited to protecting the "health, safety, and public morals" of their citizens. But outright prohibition of items (e.g. laws against alcohol) as well as the regulation of private morals (e.g. laws against sodomy) are outside the state's power.

Since the states are limited only to these things, which are all necessary to protect their citizens' rights, the state government's scope is wholly legitimate.


Several constitutional provisions (notably Article I, sections 9 and 10, and the first ten amendments) added restrictions to make sure the federal government's exercise of its powers was proper. The first eight amendments protected some of the most important rights (freedom of religion, liberty and property, freedom of speech, etc.), while the ninth protected all the other rights which weren't named, and the tenth required that Congress stick to its enumerated powers. Together, these ensured the propriety of federal laws.

And states? For many years, the federal government did not protect its citizens from an abuse of power by the states. But after slavery, the Fourteenth Amendment allowed the federal courts to overturn state laws.

The most important part of the amendment is the Privileges or Immunities Clause. However, Barnett argues the clause was drained of meaning by the Supreme Court's ruling in the Slaughterhouse Cases and many of its requirements were moved to other parts of the amendment.

For example, the clause protected against laws which unfairly treated one group of citizens as different from another. Now such laws are overturned as violating the Equal Protection Clause, which, following its original meaning, only required the states to "apply" laws equally.

Also, laws which take away liberty or property are overturned as violating the Due Process Clause, using something called substantive due process (as opposed to procedural due process). These rights were originally meant to be protected by the privileges or immunities clause, and the due process clause only required a fair process to be applied when applying a legitimate law to take things away.

But perhaps most importantly, the clause extended all the propriety tests for federal laws (like those in the first ten amendments) to state laws as well. It also prevented states from interfering with any rights that weren't in the Constitution but were granted by Congress.


So how do we enforce all these rules? The legislature can simply not pass any law they believe to be unconstitutional. The executive can veto or refuse to enforce a law he thinks is unconstitutional. And finally, the courts can "nullify" (or overturn) any law they find unconstitutional. (The Constitutional convention, the state ratification debates, and others all assumed the judiciary had this power, even though the Constitution does not explicitly say so.) Since the legislature and executive have mostly abdicated their responsibility here, the job falls mostly to the judiciary.

It's easy enough to see how the courts can decide if a law exceeds Congress's powers, and is thus unnecessary: Simply check the law against the list of enumerated powers.

But how to decide if it fails the requirements for propriety discussed above? It's tempting to do something similar and simply check the law against the list of enumerated rights. But the Ninth Amendment says (in its entirety) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely only overturning laws that violate enumerated rights would violate the unenumerated ones.

So the Ninth Amendment requires us to treat all rights the same. We could ignore them all, but that wouldn't do us much good. Instead, Barnett proposes a construction called "The Presumption of Liberty".

If you challenge a law, and the Court finds that it violates the people's "liberty" (not just "license", as a law against murder would), then to keep the law, the government must convincingly argue that it is necessary and proper. In other words, laws restricting liberty are assumed to be unconstitutional, unless the government has a particularly convincing argument.

This puts all rights (enumerated and unenumerated) on an equal footing, while leaving the enumerated rights in much the same place as they are today. For example, while the First Amendment protects "freedom of speech", the Supreme Court has been willing to uphold regulations which it finds necessary to achieve a compelling government interest.

This also brings back those enumerated rights the Court has decided to ignore, like the Second Amendment. There would be no difference between protecting drugs and protecting guns: the government would need to make a competent case either way.


Over the years, the Constitution's original meaning has been slowly eviscerated.

*The Commerce Clause has been interpreted as allowing Congress to regulate practically anything, starting with meatpackers in "Swift v. United States" (1905) and going all the way to hotels in "Heart of Atlanta Motel v. United States" (1964). The unchecked expansion was finally thrown into doubt when the Court drew a line in "United States v. Lopez" (1995), but even this was heavily contentious, and "Gonzales v. Raich" (2005) reaffirmed the court's 1930s claim that private growth of plants for personal consumption, with no actual commerce involved, was "interstate commerce".

*The necessary and proper clause has been read to allow Congress to do whatever they find not only necessary and proper, but also "convenient" for exercising their enumerated powers, starting with the creation of a federal bank in "McCullough vs. Maryland" (1819).

*The Second Amendment has simply been ignored.

*The Fifth Amendment's takings clause has been neutered by reading "public use" as "public purpose". See "Kelo v. New London".

*The privileges or immunities clause has been interpreted as meaningless redundancy, starting with allowing Louisiana to create a slaughterhouse monopoly in the "Slaughter-House Cases" (1873).

*Ignoring the Ninth Amendment or treating it as if it were redundant to the Tenth Amendment has become Supreme Court policy, starting with the famous footnote four of "United States v. Carolene Products Co." (1938), which held that only rights listed in the first ten amendments could be protected by the courts. ("Carolene Products" itself ruled that Congress could prohibit entire forms of milk.)

*The Tenth Amendment has been made meaningless, insofar as Congress has assumed (and the Courts have permitted it) the power to do almost anything.

Barnett uses, as an analogy, the example of going to see the Constitution and finding it filled with holes. He argues that the Constitution followed by the courts is simply not the one written down and under glass, and that the only honest thing to do is to restore the lost constitution.


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