Timothy Sandefur has a review of Randy Barnett's book Restoring the Lost Constitution available on SSRN. It's an excellent review that adds some additional background to Barnett's work and the importance of the presumption of liberty. There are a couple of points I want to highlight from that review. One of the arguments one hears constantly from critics of the presumption of liberty, and you can see it in the many immediate responses to my earlier post on the subject at Positive Liberty, is that there is no objective way for judges to determine what is and is not a right other than by drawing a strict line between enumerated and unenumerated rights. But as Sandefur points out, the current system has the same problem of trying to draw subjective lines:
Today's courts split freedoms into two broad categories: favored freedoms, such as speech or religion, receive the treatment that Barnett endorses, under what is called "strict scrutiny," which presumes a law to be unconstitutional unless the government shows it is "narrowly tailored to advance a compelling state interest." Disfavored freedoms -- including the unobstructed exchange of private-property rights or the unmolested earning of a living -- are accorded only "rational basis scrutiny," under which laws are presumed constitutional unless litigants can prove absolutely that they are not. Barnett makes a convincing case that his approach is much more consistent with the Constitution's original meaning and also more likely to preserve freedom.
I would submit that my critic's arguments are more applicable to the current system and that Barnett's presumption of liberty would make the system more objective, not less, by applying the burden of proof against the government and in favor of the individual in all instances, not merely in those that the court subjectively determines are matters of "fundamental" rights rather than "non-fundamental" ones.
Secondly, Sandefur points out that there are two basic conceptions of government, one traceable to John Locke and the other to William Blackstone, and that these arguments were in conflict very early in our history. He points to two opposite opinions by the Supreme Court as early as 1795 and the Calder v Bull decision, with Justices Samuel Chase and James Iredell arguing these two positions. Barnett sums up this choice starkly when he says, "[W]e 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...". Sandefur expands on this idea and traces the roots of the disagreement:
Blackstone defined sovereignty as "a supreme, irresistible, absolute, uncontrolled authority" (1: 49; see also 2: 160) that "can, in short, do every thing that is not naturally impossible" (2: 161). He explicitly rejected the views of "Mr. Locke, and other theoretical writers" (2: 161) who argued that the natural rights of individuals limited the legitimacy of any sovereign.
In his 1803 edition of Blackstone's Commentaries, lawyer St. George Tucker repudiated Blackstone's view of sovereignty. "[T]he American revolution has formed a new epoch in the history of civil institutions," he wrote, "by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers" such as Locke (Blackstone 1803, 1: appendix A, 4). In England, parliamentary authority was the rule and freedom the exception. In the United States of America, however, freedom was the rule, and government the exception. Thus, as Tucker pointed out, "supreme, irresistible, absolute, uncontrolled authority...doth not reside in the [American] legislature, nor in any other of the branches of the Government...For if it did reside in them, or either of them, then would there be no limits, such as may be found in all the American Constitutions, to the powers of Government" (Blackstone 1803, 1:49 n.10). As James Madison wrote, "In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty" (1999, 502).
Tucker's "Whig" view of sovereignty is far more consistent with the American founding than was Blackstone's "Tory" view. For the Founders, "all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity" (Virginia Declaration of Rights, 1776). Blackstone, by contrast, believed, as Herbert Storing puts it, that "the legislature can do what it likes" (1987, 676). It might choose to give people some degree of freedom, but only for prudential reasons, not because the people have a moral right to their freedom. Indeed, in the Blackstonian tradition, there is no freedom antecedent to government. Just as Lewis Carroll's Red Queen tells Alice that she cannot have lost her way because all ways here are the Queen's ways ( 1996, 25), so, for Blackstone, there is no such thing as an unregulated state because all ways are the government's ways. The consequence was what lawyers call a "presumption" in favor of the government.
The Lockean tradition takes the contrary view: because rights derive from the characteristics of individuals irrespective of government, any limit on freedom must be justified on some rational grounds (pp. 323-28). People have the right to act without unjust interference.
It would seem obvious that the Lockean view was the one that the framers of the Constitution contemplated (Gerber 1995; Sandefur 2004b). Nevertheless, as early as the 1820s, Blackstone's perspective was gaining popularity in the legal academy. Late in life, Thomas Jefferson lamented that "when...Blackstone became the [law] student's hornbook, from that moment, that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue" (Jefferson 1984, 1513-14). James Wilson shared Jefferson's distress (Waterman 1933, 650-51).
Thus, Sandefur and Barnett make a powerful argument that the presumption of liberty is a return to the original premise that drove our constitution and the conservative, Blackstonian tradition is a later distortion of it.
I've just learned something interesting. The author of the Sharpless decision, which I contend in this article is typical of the Blackstonian notion of sovereignty, was Chief Justice Jeremiah S. Black of the Pennsylvania Supreme Court. Now, I contend that the Blackstonian notion of inherent, absolute sovereignty is logically implied in the presumption against liberty, and that it was for this reason adopted by defenders of slavery during the nineteenth century.
Well, it turns out that Black was, indeed, an unreconstructed Copperhead at the very least, and even drafted Johnson's veto message for the Civil Rights Act. I hadn't known that.
There is a bit of a problem here. There was an intermediate level of government--that of the states--that could and did regulate individual behavior. The federal government (with some exceptions) was intended to largely regulate interactions among states (with some limitations that referenced individuals). It was primarily after the ratification of the 14th amendment that some of the limitations of that the US Constitution applied to the federal government were also applied to the states. Some, but not all.
I don't see how this is a problem. The history of law is never a smooth transition in a single direction. And, of course, after Barron v. Baltimore, it is hardly surprising that it was only after the ratification of the 14th Amendment that the federal constitution limited the states--that's precisely what Barron dictated had to be. There were, however, a long and distinguished list of people who believed Barron wrongly decided. These people, whom Akhil Reed Amar describes as Barron Contrarians, were the founders of the abolitionist constitutionalism that eventually created the 14th Amendment, and which is the ancestor of modern libertarian interpretations of the Constitution.
The history of law is never a smooth transition in a single direction.
Timothy, just to let you know, I acknowledge this. Completely. I have been a lawyer for 35 years, and have noted that more than a few decisions didn't seem to have any particular basis in what appeared to be the text of the statutes that were involved in the cases.