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Restoring the Lost Constitution: The Presumption of Liberty

Sun, 01 Aug 2004 00:00:00 -0400

A great paradox of America’s constitutional order today is that judges have never been more powerful, yet there has never been more disagreement among both judges and legal scholars about proper use of their power. Federal and state courts grow ever bolder, finding nearly every important issue of politics and social policy to be within their purview, from elections to marriage and presidential powers in wartime. The aggressive federal rulings of recent decades have ignited a constant controversy over the meaning of the Constitution and how to discern that meaning that dwarfs all earlier disputes about judicial power. The recent tactic in the Senate of filibustering judicial nominees seems to be here to stay, as does the discord about basic tenets of judicial power among scholars and judges alike. Readers of this journal are familiar with this controversy, and many citizens find a place in one of the contending camps”whether favoring stricter or looser interpretation, or the Constitution’s original intent versus contemporary meanings given to it, or judicial restraint versus a judicial duty to fulfill the broader “promises” of the Constitution.

In Restoring the Lost Constitution Randy Barnett brings into the arena a hybrid theory that claims to recover the original understanding of what the Constitution is for and of what judging is, a theory that we might call “libertarian originalism.” Those who urge that judicial rulings should be informed by the original intent of a constitutional clause may applaud Barnett for taking the Constitution seriously and for distinguishing judging from legislating. On the other hand, advocates of a “living Constitution” may welcome the latter half of this long and carefully argued book, which sets forth the specific consequences of his interpretation of the Constitution, the Bill of Rights, and the Fourteenth Amendment. For Barnett eventually argues that a “presumption of liberty,” which makes of our constitutional order mere “islands of government powers in a sea of liberty,” requires our judges to invalidate most laws regulating sexuality and individual autonomy, morals, and speech. This bold new constitutional theory thus reinforces what our bold courts have been doing for decades.

It would seem that courts newly armed with this presumption would be duty-bound to scrutinize our law for the last remnants of moral principles, of tradition, and of concern for the common good”for anything that would restrict the autonomy of individuals and of consenting, contracting adults. Barnett denies that this is his intention, but the presumption of liberty that he delineates would effectively turn the judiciary into a perpetual Council of Revision, presuming all state or federal laws to be unconstitutional unless shown not to infringe liberty. Since the framers explicitly debated and rejected a similar idea in the 1787 constitutional convention, and since nothing in the drafting and ratification of the Fourteenth Amen-dment clearly reverses the concept of a limited judicial power as part of a complex constitutional order, it is hard to square the originalism of this book with its libertarianism.

Barnett, a distinguished law professor at Boston University and senior fellow of the Cato Institute, has published widely on restoring a Lockean natural rights foundation to American law and jurisprudence. He thus has advocated the rediscovery of the Ninth Amendment in the Bill of Rights, which states that the Constitution’s enumeration of particular rights “shall not be construed to deny or disparage others retained by the people.” Restoring the Lost Constitution develops this view of individual rights to property, to revolution (thus to bearing arms), and to a host of unenumerated liberties into a grand theory of our constitutional order.

The book has four parts. The first, on “Constitutional Legitimacy,” lays out the strictly Lockean premises for a natural rights Constitution: government exists only to protect individual rights, has only the powers expressly granted it, and has no authority to enforce acts to which an individual has not explicitly consented or that he deems a violation of natural rights. The section on “Constitutional Method” advocates interpretation according to the original public meaning of a constitutional clause, to be supplemented but not displaced by the “original intent” of framers and ratifiers. This restores the long-disparaged approach of “legal formalism,” committing lawyers and judges to enduring rules and concepts for interpretation of law. The third section, “Constitutional Liberty,” employs these premises of legitimacy and method to examine limits on majoritarian legislation imposed by the Constitution’s strict enumeration of powers, by the Ninth Amendment’s protection for open-ended rights, and by the Fourteenth Amendment’s protection of the “privileges or immunities” of all citizens in all states. The last part assesses the limited “Constitutional Powers” of Congress over the economy and of states over “police” matters of safety, health, and morals, and finds a plenary judicial power to enforce these limits.

The arguments advanced in Restoring the Lost Constitution are careful and clear, and the author’s search for original meanings of particular constitutional clauses is occasionally brilliant. And yet the jurisprudential reach of the book exceeds its analytical grasp, because Barnett opens with contradictory accounts of his two basic premises, constitutional legitimacy and an originalist method of interpretation. All the powers of the judiciary set forth in the latter half of the book stem from this opening flaw, and, despite his protestations, Barnett’s theory effectively would empower a juristocracy to strip from “liberty” nearly all conceptions of communal self-government, a vibrant citizenry, and common moral purposes. This is unfortunate, since he persuasively argues that only originalism, binding judges to the plain meaning of the Constitution or the carefully inferred intent behind it, provides a justification for judicial review of the acts of the elected branches. He exposes our Wizard of Oz world of recent decades, with judges and theorists legislating their preferences in the name of the Constitution while cajoling us to “pay no attention to that man behind the curtain.” Barnett’s inquiries into federal power, the Bill of Rights, and the Ninth and Fourteenth amendments also contain much of value. His express commitment to originalism, however, exposes him to the criticism that he has not fully captured the views of politics and law embodied in the Constitution, nor its balance between legislative, executive, and judicial powers. On none of these matters did the Founders or even the authors of the Fourteenth Amendment adopt either libertarianism or judicial supremacy.

In an odd move for an originalist, Barnett argues that the Constitution’s opening phrase, “We the People,” does not mean what it says, since he classifies as “fictions” both the traditional republican idea of political community and the modern idea that a social contract among individuals produces community. I would agree that one should reject the recent theory that the Supreme Court speaks for an evolving We the People in rewriting the Constitution and that one should also reject its New Deal predecessor, the theory that the Constitution means anything demanded by the Rousseauean general will of the moment. Barnett overcorrects, however, by claiming that a Lockean theory of man’s natural unsociability is the Constitution’s core principle, giving each individual an effective veto over all laws. To make this argument he copiously cites recent historians and political theorists but refers to the Founders more sparingly”whereas throughout the rest of the book the reverse is usually the case. Quite apart from the question of whether Locke in fact held such a strict contractarianism, it is notable that Barnett never mentions the political philosopher most consulted by the framers when forming this constitutional republic: it was not Locke, but the Frenchman Montesquieu. His classic work The Spirit of Laws argues that human nature calls for the right balance between liberty and order, and between the natural rights of individuals and common beliefs and purposes; the same is true of his disciple Blackstone, who persistently tempers liberty with communal order in the Commentaries . Libertarian ideas do offer a corrective to the statist or socialist ideas of later centuries; and Barnett rightly argues that Judge Robert Bork, for example, is wrong to dismiss the Ninth Amendment as an “inkblot” unintelligible to a jurist who seeks to avoid legislating. But there is discontinuity, to say the least, in the fact that Barnett dedicates this book to James Madison while overlooking the commitment expressed by Madison in Federalist No. 10 to preventing majoritarian injuries to both the rights of individuals and “the permanent and aggregate interests of the community” or “the public good.” Is it a libertarian Constitution whose Preamble declares that “We the People” can “ordain and establish” a fundamental law for broad common purposes, binding upon all, because achieved through reasonable representation and balanced constitutional forms?

A related and significant omission in Barnett’s theory is religion, the phenomenon behind the Constitution’s self-definition as ordained and as protecting individual rights and the pursuit of happiness through a covenantal community greater than any individualist or contractarian parts. John Jay argued in Federalist No. 2, and Washington argued in both his 1783 Circular and 1796 Farewell Address, that an organic American polity existed from the Revolution and yet could only secure natural rights by enacting those bonds in a written fundamental law. Tocqueville’s classic analysis of America’s “point of departure” in the Puritans”who uniquely blended religion, liberty, and English common law”is also absent from Barnett’s book, possibly because Tocqueville confirms that our polity is a Montesquieuean blend of covenantal and contractarian jurisprudence. This is the non-Lockean basis for the aims in the Preamble to “promote the general welfare” and “secure the blessings of liberty,” both for the founding generation and their “posterity.” Such jurisprudential complexity, further evident in a Constitution that defines itself as ordained and yet forbids both religious tests for office and an established religion, follows Montesquieu and Blackstone in blending Locke, Christianity, and classical republicanism.

The common law is yet another source rarely mentioned by Barnett, who seems to acknowledge it selectively: he likes the common law’s fixed meanings for property rights but eschews its precedents about morality, duties, or speech. Joseph Story and Chancellor Kent, early nineteenth-century authorities whose works embody this more complex view of American law and liberty, also do not appear; nor does Madison’s argument in Federalist No. 49 that if law is to protect liberty there must be a deposit of respect among the people”an argument that certainly cuts against any presumption that all laws are invalid infringements upon liberty. Barnett’s recovery of the “original” meaning of liberty is, to say the least, eclectic, and it leads him in his final chapters to celebrate novel judicial rulings on individual autonomy and intimacy which recently have fostered boldness by state judges and officials about gay marriage.

Restoring The Lost Constitution is worth arguing with because it emphasizes the right questions and issues, and because it fundamentally respects the rule of law and the inherent meaning of the Constitution. Barnett worries that our Constitution has been denatured by statist judges and jurists”but his solution raises the concern that his libertarian remedy denatures our constitutional order, not only by removing the separation of powers and federalism from the Constitution but also by vitiating the complex structure of morals, law, and liberty that the Constitution is meant to serve. Does the Tenth Amendment empower judges to limit the federal government to those powers expressly provided in the Constitution, with the privileges or immunities clause of the Fourteenth Amendment similarly empowering them to police the states? Isn’t this precisely the shackle on governmental power from the Articles of Confederation that the Constitution repudiated, and didn’t Madison therefore steer the amendments away from gutting federal power and toward protecting traditional common law rights? Is it plausible that Federalist views of robust judicial power can be married to Anti-Federalist skepticism toward government, while omitting the emphatic Anti-Federalist warnings about a tyrannical and aristocratic judiciary?

Such concerns should not crowd out appreciation for Barnett’s defense of natural rights against the skeptical, pragmatist doctrines of recent jurisprudence, which recklessly spend the legal capital built up by more sober jurists over centuries. His search for principled foundations for our constitutionalism and our judicial power helps to restore the legal forms and disciplined approach to interpretation which once separated judging from legislating. Randy Barnett may portray the Constitution as too single-minded, but he brilliantly argues that it does have a mind of its own, and that judges must be governed by it rather than seeking to change it.

Paul O. Carrese is professor of Political Science at the U.S. AirForceAcademy and author of The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (University of Chicago Press). Views expressed here are his own, not of the Academy or the U.S. Government.

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The Ironies of American Power

Fri, 01 Aug 2003 00:00:00 -0400

Of Paradise and Power: America and Europe in the New World Order
by Robert Kagan
Knopf. 103 pp. $18

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States’ Rights and the Union: Imperium in Imperio, 1776–1876

Fri, 01 Jun 2001 00:00:00 -0400

Forrest McDonald, the Distinguished Research Professor of History at the University of Alabama, writes that “the most pervasive” problem besetting American politics in its first century after Independence was disagreement about “the nature of the Union and the line to be drawn between the authority of the general government and that of the several states.” His compelling narrative ends with the Civil War and Reconstruction, with an epilogue sketching the story up to the recent rediscovery by the U.S. Supreme Court that a principle of federalism limits national power.

Many policy debates in America today, ranging from taxes to education to health care, ultimately concern federalism and the principles it aims to preserve, liberty and equality. A generation ago Herbert Storing, by restoring the Antifederalists’ role in America’s founding debates, reminded us that American politics is defined both by principles and by debates about principles. Our complex constitutionalism ever concerns how best to balance, in given circumstances, our commitment to principles that don’t always fit together easily”liberty and equality, nation and state, progress and tradition, faith and skepticism. McDonald’s book reminds us that as long as our politics is healthy we will be discussing how to balance the power of states and the national government.

Federalism guarantees that politics will be messy and complicated. It even includes the possibility that whole and parts become empires in a zero“sum struggle, as with the debates over slavery. Still, our Civil War was not an inevitable consequence of the complex politics of federalism, any more than chattel slavery itself was inevitable. Indeed, federalism, the voluntary union of political societies to form a new state with limited powers while member states retain other powers, provides a middle path between the despotism of empires and the chaos of ethnic or religious separatism.

McDonald begins by noting that a “division of sovereignty with a single jurisdiction” was “generally regarded as impossible, until Americans devised a way of doing it.” By the 1780s several future Federalists, unhappy with disorder under the states“oriented Articles of Confederation, began to think that sovereignty could be shared. Their principle, which McDonald finds “both subtle and simple,” was this: “Government at various levels had certain responsibilities, and inherent in those responsibilities was the power to carry them into execution.” Some properly resided in national authority, some in separate states and their localities, and some remained with the people. Still, even from the time the Articles were proposed two distinct voices broke into debate. McDonald describes these as “nationalists” and “states’ rights republicans,” precursors to the Federalists and Antifederalists, who debated a constitution with a genuine national government to balance the states.

McDonald notes how difficult it was for Washington to keep armies in the field, let alone defeat the British, given a Congress that had little real power and no unitary executive. After the adoption of the Constitution, Washington’s Administration and the early Congress were divided between Hamiltonians and Jeffersonians. The Federalists were practically extinguished by the victories of Jefferson’s Democratic“Republican party in the 1800 election, leaving the federal judiciary under the new Chief Justice John Marshall as the only national authority not dominated by the states’ rights principle.

The defenders both of states’ rights and of national authority shifted from region to region and party to party depending upon the issue and upon which group was dominant, which the loyal opposition. Jefferson preached about weak federal government and strict construction of its constitutional power, and had given birth to the doctrines of secession, interposition, and nullification in the 1798 Virginia and Kentucky resolutions, yet he conducted his presidency and led his party with a boldness that surpassed anything Hamilton or Washington ever proposed, let alone attempted. Madison joined with Jefferson on the 1798 resolutions, despite having been an architect of the Constitution and its stronger national government. As McDonald tells the story of the nineteenth century, the aims of life, liberty, property, and the pursuit of happiness caused Americans to oscillate between a natural“born distrust of government as threatening these ends, and a recognition that rights could only be enjoyed if government provided certain kinds of order and activity. Thus Madison later found that a dose of experience”the British burning parts of the nation’s capital in the War of 1812”indicated that a more robust national defense and economic plan, including a national bank, were needed.

McDonald tracks the main issues and moves through the era of Jacksonian democracy and the apparent triumph of states’ rights, to the rise of slavery as an issue given the expansionism of Manifest Destiny. He weaves the names, phrases, and issues one first learns in school into a coherent narrative about federalism, from the triumvirate of Clay, Calhoun, and Webster, to the contrasting Marshall and Taney Supreme Courts, to the slide toward secession and inter necine violence after the Compromise of 1850. He concludes that the “doctrine of states’ rights had been stretched to and, as the Civil War would demonstrate, beyond its limits.” The Union would survive secession after the bloodiest war yet in human history, but so, too, would the doctrine of states’ rights, though both would be significantly altered. Throughout McDonald notes how important Supreme Court rulings were for the American debate about federalism. McDonald’s main contention is that the “original understanding” of the Constitution was as a “compact,” one “not among sovereign states,” nor “of the whole people among themselves,” but “among peoples of different political societies, in their capacities as peoples of the several states.” This, however, is ambiguously phrased, and McDonald’s narrative spells out his notion of compact in debatable ways.

First, McDonald is too bold when claiming that there was “no theory of divided sovereignty” for the American founders to consult. By the 1770s Montesquieu rivaled Locke’s influence in America, and in the 1780s and 1790s he and his disciple Blackstone surpassed Locke altogether. Indeed, Federalist No. 47 cites Montesquieu as “the oracle” on separation of powers and No. 9 quotes at length his theory of federalism. There Hamilton notes that Montesquieu considers the Hellenic republic of Lycia the best example of federalism, in part because its central council had significant authority. A second, related quibble concerns McDonald’s view that the theory and language of the Declaration are shaped largely, or even simply, by Locke. For every passage traceable to the Second Treatise there are several more traceable to the English common law tradition and Blackstone’s analysis of the English revolution of 1689, not to mention the numerous phrases borrowed from Protestant Christian confessions. A people influenced by a blend of Enlightenment theory, common law jurisprudence, Protestant creeds, and such complex thinkers as Montesquieu and Blackstone was prone to eventually choose a complicated manner of self“government”indeed, not just separation of powers or federalism, but both.

McDonald’s views on the theory of federalism and the Declaration fit with the main point of his narrative, that the Constitution is a “compact” among the peoples of the states. He opposes this “original understanding” to two extremes”the view of Jefferson, the later Madison, and the Confederacy that the Union was a league among states, and the view of Marshall, Webster, Lincoln, and even of Andrew Jackson that the Constitution was formed by the people of America, albeit through the instrument of state“based conventions. The difficulty is that McDonald cites two incompatible authorities for his middle view, Madison in Federalist No. 39 and John C. Calhoun. As he admits, Calhoun’s “compact” theory essentially deepens the states’ rights argument of 1798, implying that the Constitution itself harbored doctrines of interposition, nullification, and secession. If this were so, little would have changed from the Articles, for the real power still would lie in the states. McDonald elsewhere recognizes, however, that the genius of the Union involves “strong balancing mechanisms” such that neither nation nor states had total supremacy, but that each had supremacy as to different powers and spheres.

His view of a compact among peoples is more correct when grounded in the early Madison, but Federalist No. 39, seeking to parry criticisms about consolidation, fudges the issue. Madison states that the formation of the Union was not national but federal in nature, for it required ratification of the people by state. His characterization of executive power and of the amending process as partly national and partly federal is more accurate, and in fact applies to the formation of the Union. Madison indicates this himself in No. 43 when addressing the illegality, strictly speaking, of superseding the Articles not by unanimous consent of the states but by popular conventions, and in only nine of thirteen states. He declares that the “express authority of the people””not peoples”“alone could give due validity to the Constitution.” The Articles are a mere “compact,” a term he never uses regarding the new, more perfect Union, and he cites the Declaration as justifying “society” in bypassing legal details to establish it.

McDonald’s strictly Lockean view of the founding supports his adoption of Calhoun’s “compact” view, a focus on contract theory and origins that overlooks the American concern for both larger ends and constitutionalism. To secure those ends the American people forged a new instrument, a Constitution, and bound themselves by it. They looked to the more complex constitutionalism of Montesquieu, Blackstone, and the common law tradition precisely so as to leave behind the disorder and weakness yielded by contractarian thought. The “We the People of the United States” who did so had already become one people, as Lincoln argued, in the Declaration and the war.

The debate about federalism has been so raucous at times because those who lost the ratification debate over the Constitution did so only by a hair’s breadth, then soon became the dominant voice in our politics. Still, now more than ever we need to restore the balance between our Lockean individualism and our devotion to constitutional complexity and larger purposes. This is not to take the view of New Dealers. Indeed, for the past century most American political scientists, following Wood row Wilson, have disdained the principles of our constitutionalism”separation of powers and federalism”as undemocratic, backward looking, and inefficient. We have learned, however, that Wilson’s blend of populism and scientific administration yields bureaucrats, demagogues, pollsters, overreaching judges, and journalists who can practice versions of elitism and tyranny quite well.

Forrest McDonald’s book restores to us the great debates about a great American principle, federalism, and whether or not one agrees on every point, one is pushed to think seriously and return to the original sources. As McDonald notes, the vitality produced by both federalism and the debate over it meant that, a century after independence, the United States “managed both to remain unburdened by oppressive central authority and to take long strides toward greatness.” Whatever success we have had stems in part from appreciating the need for both national and local authority, and from harnessing our constitutional complexity to achieve both individual aims and a common good.

Paul Carrese, currently a postdoctoral fellow in Government at Harvard University, is Associate Professor of Political Science at the U.S. Air Force Academy.

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