June 17, 2004, 3:42 p.m.
The Freedom Framers
From the May 3, 2004, issue of National Review.

By Ramesh Ponnuru

Restoring the Lost Constitution: The Presumption of Liberty, by Randy E. Barnett (Princeton, 366 pp., $32.50)

Partisan debates about judges can mislead casual observers into thinking that the Right is of one mind about the judicial function. In fact, right-leaning legal thinkers have been engaging in several vigorous, sometimes fierce, internal debates. The most famous position is that of Robert Bork: He believes judges should be bound by the Constitution's original meaning, and allow laws to stand unless they violate its specific prohibitions. Some conservatives object to Borkean originalism because of its alleged moral relativism: Supposedly, the originalist can say of a law only that it was enacted validly by a majority, but cannot determine whether it is right or wrong. Many libertarians have their own quarrels with originalism: They find it insufficiently protective of individual rights.

In Restoring the Lost Constitution, Boston University law professor Randy Barnett attempts to move beyond this debate by fusing originalism and libertarianism. It is a thoughtful, earnest, generally careful, and courteous attempt to argue for the proposition that the Constitution, as originally understood, requires federal judges to nullify most laws that infringe on individual liberty. All we must do is go back to the original Constitution. But I am afraid that this marriage of Robert Bork and Richard Epstein cannot be made to work, even in Massachusetts.

Barnett begins by exploring the conditions that make a government "legitimate," in the sense that people are bound in conscience to obey it. He criticizes the widespread view that legitimacy comes from "the consent of the governed." To be binding, consent would have to be both real (voting cannot be taken to imply consent unless not voting is taken to imply its absence) and unanimous (your consent cannot bind me). In a large polity, however, such consent is impossible. Barnett argues instead that a government is legitimate only when its lawmaking procedures provide assurances that its laws will be just. To be just, the laws must both "properly respect the rights of those on whom they are imposed and [be] necessary to protect the rights of others." The Constitution tries to ensure that laws will have these characteristics.

Barnett then moves to a defense of originalism as the proper method for interpreting the Constitution. He sees having a written constitution as one way to ensure the protection of rights and thus produce a legitimate government. Much of the value of its writtenness would be defeated if its meaning could be transformed through interpretation. Hence originalism. But originalism is insufficient to guide judges' constitutional decisions. When original meaning does not yield a clear answer, a rule (or some rules) of construction are needed. A "presumption of constitutionality," in which judges leave statutes on the books if in doubt, is such a rule (albeit one that Barnett criticizes). Barnett explains why he sides with the "overwhelming majority of courts and scholars" in believing that the judiciary's power to nullify laws it deems unconstitutional is well grounded in the Constitution's original meaning — selecting quotes from the Constitutional Convention, the Federalist Papers, and the state ratifying conventions to make his case.

To determine how this power should be used requires an explanation of the original meaning of important constitutional provisions. Barnett starts with the clause that gives Congress the power to make all laws that are "necessary and proper" to execute its enumerated powers. Modern courts have held that clause to grant Congress an almost unlimited power. But Barnett contends that for a law to be "necessary and proper" under the clause it must be tightly related to an enumerated power that is its purpose and not just its pretext. These conditions must be shown to the satisfaction of the courts.

The privileges or immunities clause of the Fourteenth Amendment places a similar constraint on state laws. It empowers the federal courts to block the states from violating their citizens' natural rights, including but not limited to those listed in the Bill of Rights. The Ninth Amendment, which says that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," should be understood to mean that the courts must protect those rights not listed in the Constitution as vigilantly as they protect those that are. This can be done by adopting a rule of construction that fits the Constitution better than the presumption of constitutionality: a "presumption of liberty" that "places the burden on the government to establish the necessity and propriety of any infringement on individual freedom." Only this presumption can create a duty of obedience in the citizenry. If laws do not have to survive the scrutiny of a skeptical judiciary, they could be "mere exercises of will" that command obedience "merely because the consequences of disobedience are onerous."

Barnett's theory makes morals laws impermissible. If they stood, "there would be no limit on state power since no court could review the rationality" of the underlying moral judgment. "One thing is certain," writes Barnett: "The original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court."

I do not doubt that this contention is, in important respects, correct. Barnett's theory has a coherence and elegance that the Supreme Court's existing jurisprudence, with its essentially arbitrary designation of certain liberties but not others as "fundamental," lacks. Incoherence can, however, be preferable to some coherences. Can it really be the case that the duty to obey laws rests exclusively on the liberty-enhancing characteristics of the lawmaking process? Even in a tyrannical regime, there can be a general moral duty not to commit murder. Barnett does not say whether citizens in contemporary America have a duty to obey the laws. Since the courts do not follow his presumption of liberty, I am not sure how, on his theory, they can.

The book is weakest where it is most conventional. Barnett accepts the standard account of the judicial power to nullify unconstitutional laws. He never considers the idea that this power was originally held to concern only those state laws that infringed federal prerogatives and those federal laws that tried to grant powers to federal judges that the Constitution denied them. Robert Lowry Clinton proposed 15 years ago that this understanding best explains the treatment of the judiciary in the Founding-era documents, the reasoning and holding of Marbury v. Madison, and the citations of Marbury in the following century. So, for example, Madison, when discussing the Constitution's reference to "the judicial power" at the Convention, remarked that it "was generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature." Much of the Bill of Rights, it should be remembered, consists of restrictions precisely on the courts. The quotes Barnett uses are compatible with this view rather than the more expansive one for which he takes them to be evidence.

There was very little suggestion, during the ratification debates, that the chief value of written constitutional limits on legislative powers was that they would allow for judicial enforcement. Barnett implicitly assumes that if the courts cannot enforce constitutional provisions, those provisions become meaningless. But Madison seemed to think that the chief value of the Bill of Rights would be its effect on the political culture: It would be "good ground for an appeal to the sense of the community." The courts have never truly enforced the Second Amendment, yet that amendment really has protected the right to bear arms through its powerful effect on the political culture.

Barnett supplements the originalist argument for judicial enforcement of the Constitution with a pragmatic one: Without such enforcement, legislatures would be left judging their own powers. But that isn't true; there would still be a range of checks on their power, from elections to presidential vetoes. There is also, in any case, the danger of letting judges decide the limits of their power. Barnett notes that there are checks on the judges — for example, constitutional amendments. But he vastly overestimates their efficacy. So long as the Supreme Court usurps only those powers that 34 percent of the legislature is content to let it usurp, no amendment will ever pass. Further, Barnett would have us trust the courts because "no court today would find an action that violated the rights of others to be a 'liberty interest.'" Coming from a fan of the Supreme Court's recent abortion decisions, such as Barnett, that is an understandable assertion. The rest of us cannot be so sanguine.

Most contemporary theories of jurisprudence are open to the objection that they assume too great a judicial power to nullify laws. But there is a special problem for Barnett's theory. He repeatedly reads constitutional provisions in a way that yields a judicially enforceable meaning, on the theory that any other reading would make them pointless. His treatment of morals laws — arguing that allowing them would violate the original meaning of the Fourteenth Amendment because we would be left with no "judicially enforceable limit whatsoever on the police power of states" — is a case in point. But if the Fourteenth Amendment was meant primarily to give Congress a power to regulate the states — which is what even Barnett's evidence suggests — then there is no reason to read it for the convenience of judicial power. Barnett assumes that every provision of the Constitution must be enforced by the courts, and that to meet this condition a judicially enforceable meaning for each provision must be found.

Even today, most jurisprudes are not quite so committed to judicial power. There is little reason to think that the ratifiers of the Constitution and its amendments ever were.

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