Book Review: The Normality of Freedom

January/February 2005 -- Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J.: Princeton University Press, 2003), 360 pp., $32.55 ($18.95, paperback).

In 2003, the Supreme Court declared that people challenging the constitutionality of an economic regulation must "negative every conceivable basis" for that regulation if they are to prevail (Fitzgerald v. Racing Ass'n of Central Iowa). In other words, laws controlling private property or economic activity are presumed constitutional unless shown to be utterly arbitrary, without any evidence whatsoever in their favor. There was nothing novel about this: the Supreme Court has held this view for the past seventy years.

Barnett offers  systematic defense of a libertarian interpretation of the U.S. Constitution.

In Restoring the Lost Constitution, Randy Barnett (pictured above) targets this idea with a refreshing blast of common sense. Subtitled The Presumption of Liberty, Barnett's book draws together arguments he has made in previous articles and books to offer a systematic defense of a libertarian interpretation of the U.S. Constitution. He begins with the fundamental question of what makes government legitimate and proceeds with the resolve to define the meaning of legal texts objectively, rather than on the basis of the subjective preferences of authors or contemporary political expediency. This is an ambitious project. Barnett in effect challenges a generation of legal theory from across the political spectrum, but does so without polemics, relying on the clarity of his arguments and the common-sense appeal of his positions to carry the day.

To understand the degree to which he succeeds, we must consider the role played by presumptions in the philosophy of law. A presumption is simply an intellectual tool. Under a presumption, a claim is considered as prevailing unless an alternative is demonstrated by more than some set amount of evidence or argument. In criminal law, for example, a defendant is presumed innocent until proven guilty, and the "burden of proof" rests on the prosecutor to demonstrate that the defendant really did commit the crime with which he is charged. In some cases, the burden of proof can shift repeatedly: the prosecutor might show that the defendant killed the victim, but the defendant then has the burden to rebut the charge by showing that he acted in self-defense.

The legal background for presumptions is not just historical but, more basically, epistemological. In any logical conversation, the party asserting a claim bears the burden of establishing the truth of what he says, for the simple reason that "you can't prove a negative." It is not up to the dissenter to prove that Claim X is not true. Rather, the party asserting Claim X must prove that it is. This logical method translates into the realm of human activity in the form of legal or political presumptions. As Barnett puts it: "We must choose between two fundamentally different constructions of the Constitution, each resting on a different presumption. We must either accept the presumption that in pursuing happiness persons may do whatever is not justly prohibited, or we are left with a presumption that the government may do whatever is not expressly prohibited" (pp. 268-69).

If a criminal defendant were presumed guilty, he would be forced to bear the impossible burden of disproving an infinite number of potential allegations. Likewise, the citizen must be presumed free to act until some limitation on that freedom is justified. A person must be free to speak unless some reason is given for him to be silenced (e.g., he is in a crowded theater); a person must be free to possess his property until it is shown that his property should be taken from him (e.g., he stole it from someone else). This presumption is often rephrased, as in "the government exists to serve the people, not the people to serve the government." However it is said, though, the notion is, as the political theorist Anthony de Jasay puts it in his book Justice and Its Surroundings (Indianapolis: Liberty Fund, 2002), "a matter of epistemology, of how knowledge works and how verification differs from falsification." Forcing the citizen to prove that he should be free to act, writes Jasay,

would stop the actor doing the act in question until he could show it to be proof against possible objection…. To falsify the hypothesis that the act is objectionable…is a needle-in-the haystack type of task…. Taking the haystack apart blade by blade to falsify the supposition of its harboring a needle would take long enough to mean an indefinite suspension of the act whose free performance depended on there being no needle.

The authors of the Constitution believed in the presumption of liberty, as Madison put it, the Constitution was a "charter of power granted by liberty," rather than a "charter of liberty granted by power"—and the Constitution's language reflects this throughout (James Madison, "Charters," National Gazette, January 19, 1792). For example, the Fifth Amendment prohibits government from "depriving" people of their life, liberty, or property unless they are accorded due process. The word implies that these rights preexist the Constitution, which also declares that it was written to "secure the blessings of liberty"—not to grant them.

Barnett fails to explore the epistemological root of the presumption of liberty.

But while Barnett's book takes the "presumption of liberty" as one of its major theses, he fails to explore the epistemological root of that presumption. Instead, he focuses on the least controversial argument he could have afforded: the presumption of liberty, he writes, flows necessarily from the existence of inalienable rights. If rights preexist the state, then the government must always bear the burden of proving the necessity of its acts which limit or abridge those rights; if the government may shift that burden onto the citizen, then the citizen's rights are really just permissions—special exceptions from the general rule—and hence far less secure.

The textual keystone in his argument is the Ninth Amendment, which declares that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"—in other words, that the list of rights in the Bill of Rights is not exhaustive. The existence of "other rights" makes sense only if we presume that individuals have the right to do what they please until proven otherwise. Although conservatives have attempted to avoid this argument by claiming ignorance of the true meaning of the Ninth Amendment—Robert Bork famously likened it to a mere "inkblot" on the Constitution—Barnett convincingly shows that the Amendment was written to avoid the presumption that people have only those rights that are specified.

Barnett also argues that

A general Presumption of Liberty can be justified, not only on the grounds that it gets courts out of the business of picking and choosing among the liberties of the people to decide which is fundamental, and not only on the grounds that it is more harmonious with the texts…of the Ninth and Fourteenth Amendments. It can also be justified as a more realistic presumption in light of what we know of legislative behavior…. [B]oth minorities and majorities can successfully assert their interests in the legislative process to gain enactments that serve their own interests rather than being necessary and proper…. Statutes that emerge from the legislative process are not entitled to the deference they now receive unless there is some reason to think that they are a product of necessity, rather than mere interest.

This statement captures the classic problem of public choice: to assume that government will generally do as it should is to romanticize the way it operates and blind oneself to the fact that force is too attractive a tool for interest groups to avoid using against their opponents—if they can. The presumption of liberty helps combat the tendency toward pressure group combat by forcing a group which wins in the legislature to explain itself in public terms before a disinterested reviewer who is not subject to the same pressures as the legislature—namely, the courts. In some contexts, the Supreme Court has acknowledged that it has a "special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process" (Washington v. Seattle School District. No. 1, 1982).

Unfortunately, while the Court has often acted heroically to defend those powerless groups, it has failed to do so when the legislation in question is a regulation of the economy. In the minds of most lawyers today, the presumption is that the government may regulate so long as it is not specifically forbidden from doing so by some explicit constitutional provision. Thus, it is the citizen's duty to prove the negative—that he should not be forbidden from acting as he chooses. As Barnett shows, this willful blindness is a historical legacy of the New Deal, not a serious obligation of the Constitution. Yet such is the prevailing law.

A classic example is the 1932 case of New State Ice Co. v. Liebmann. There, the Supreme Court struck down a law requiring any person going into the ice business to prove to a board of regulators that the current ice market was not being adequately served, before being allowed to open his shop. The impossibility of such a task led the Supreme Court to declare that "the control here asserted does not protect against monopoly, but tends to foster it. The aim is not to encourage competition, but to prevent it; not to regulate the business, but to preclude persons from engaging in it. There is no difference in principle between this case and the attempt of the dairyman under state authority to prevent another from keeping cows and selling milk on the ground that there are enough dairymen in the business." Unfortunately, that decision was overruled during the New Deal (Nebbia v. New York, 1934), and the sort of regulatory scheme at issue in Liebmann is now the prevailing system for regulating taxis and other businesses throughout the country.

Alas, in his attempt at comprehensiveness—his book covers everything from the legitimacy of government in the absence of unanimous consent to the New Deal Court's treatment of the commerce clause—Barnett sacrifices much focus and detail, especially historical detail. For example, his discussion of the history of economic regulation entirely ignores Liebmann, as well as Munn v. Illinois and Nebbia v. New York, two of the three most important cases on the subject. (The third, U.S. v. Carolene Products, he discusses thoroughly.)

Barnett's book is a succinct and accurate distillation of libertarian constitutional theory.

In fact, the debate over the presumption of liberty is much older than the New Deal, although Barnett does not attempt a comprehensive historical account. The debate dates back at least to the English lawyer William Blackstone, who wrote that Parliament's authority was so absolute that it could do "every thing that is not naturally impossible." The various English liberties, he declared, were just so many permissions granted to the subject, and revocable at will. Despite the efforts of such American lawyers as St. George Tucker—who argued in his edition of Blackstone's Commentaries that Blackstone's notion of government as the rule and liberty as the exception could not prevail under the American Constitution—Blackstone's theory gained increasing popularity during the nineteenth century, particularly among defenders of slavery. In 1853, for instance, the Pennsylvania Supreme Court declared that the people had the authority, if they wished, to "create[] a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat," and that except for the specific limits in the state constitution, the legislature was "limited only by their own discretion" (Sharpless v. Mayor of Philadelphia, 1853). This idea, however, is the precise opposite of the vision of men like James Madison, who held that government got its legitimate authority only from the rights of the people who constituted it. Thus, he wrote, "the majority of the society…may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed." A more thorough historical account of the presumption of liberty would serve Barnett's thesis better.

One point on which Barnett should be praised is his consistent attempt to connect his natural-rights political theory to a conception of human nature. But just as his historical narrative skips many important details, Barnett's political theory skips some necessary steps and results in a seemingly disordered argument.

A common criticism of libertarianism in general is that it ignores morality. Libertarians tend to reply that this is not correct—they are merely distinguishing sins from crimes; the latter, which violate the rights of non-consenting parties, are the only concern of the state. But conservatives frequently see this as evasion, because it offers no grounds on which behavior might be condemned as wrongful if it does not harm another person. Granting that drunkenness should not be a crime, the conservative says, what reason does a libertarian have for declaring private drunkenness wrongful? Objectivism is impervious to this challenge, since its moral standards are derived from a conception of human nature which allows Objectivists to hold that (as Ayn Rand put it) morality would be as necessary to a person on a desert island as it is for a person in society. Unfortunately, Barnett is so focused on the Constitution's text, rather than on the questions of human nature or epistemology which Jasay and others have explored, that his opponents may see him as having missed the deeper points of their critique.

A more structured account of the presumption of liberty would begin, as Barnett did in his earlier book The Structure of Liberty, with "the nature of human beings and the world in which they live." Their nature as reasoning beings gives the first major reason for a presumption of liberty: as Rand put it, survival requires thought, and thus those who think must be free from the interference of those who do not. Since at least John Locke, this has been a major reason for creating a society that respects liberty in the first place: to protect reason from the coercion which cannot be effectively combated in a state of nature. The next step would focus on the principle of equality: nothing marks out some reasoning human beings as the natural rulers of others—rather, they each have the right to consent (or not) to being ruled. Thus, the principle of equality also leads to the presumption of liberty, because no person has some prima facie right to forbid the action of another person. Next would come Jasay's point about the epistemological basis of the presumption of liberty, followed by the political philosophy of the founding and the plain language of the Constitution—points well covered by Barnett. Unfortunately, Barnett's breadth comes at the expense of depth, and his wide variety of interests detracts from the organization of his argument.

These tendencies might also account for a major omission. Basing his theory of constitutional legitimacy on the existence of procedures which protect non-consenting persons from having their rights violated (p. 3), he concludes that the Constitution, properly interpreted, meets this criterion (p. 276). He acknowledges that "some powers granted Congress are proper and others are not," and suggests that constitutional duties protecting slavery would have been illegitimate (p. 277). But there is a much more obvious and pertinent example of a constitutional power which deprives non-consenting persons of their rights: taxation. The power to tax is the first of Congress's enumerated powers, and its legitimacy was never, to my knowledge, questioned by the founding generation. There is certainly a strong case that taxation is unjust and therefore illegitimate as a matter of political philosophy, and Barnett hints that this power might make the Constitution itself illegitimate (p. 355), but he fails to discuss the subject. Since he rejects the argument that people owe allegiance to government in exchange for benefits they receive from it (pp. 25-29), he slams the door on the possibility that legitimate government may tax. Does he believe that the taxing power "[does] not bind in conscience" (p. 277)? Not usually shy about controversy, Barnett is silent on this point.

Such complaints, however, are of the most flattering sort: Restoring the Lost Constitution leaves room for further scholarship and leaves the reader eager to learn what Barnett will say. At the same time, he has touched on most of the major controversies in modern constitutional law, from the perspective of the political philosophy of the framers themselves. Despite its occasional lack of focus, Restoring the Lost Constitution is a succinct and accurate distillation of libertarian constitutional theory—and it convincingly shows that this phrase is largely redundant.

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