- The Washington Times - Monday, April 19, 2004

RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY

Randy E. Barnett

Princeton University Press, $32.50, 381 pages

In 1787, the Founding Fathers forged a bulwark of freedom, the U.S. Constitution, with its Bill of Rights ratified in 1791. In 1878, British Prime Minister W. E. Gladstone called it “the most wonderful work ever struck off at a given time by the brain and purpose of man,” in an apparent try to distinguish it from the God-given Ten Commandments.

But Randy Barnett, the libertarian Austin B. Fletcher professor of law at Boston University, author of the “The Structure of Liberty: Justice and the Rule of Law” and an originalist in interpreting the Constitution, charges that you and the Constitution have suffered over its 217 years of existence from various amendments such as the 16th (income tax) Amendment and the 17th (Direct Election of Senators) Amendment, both of which were ratified in 1913.

Too, in Mr. Barnett’s remarkable historical overview, loose Supreme Court “living document” interpretations have eroded otherwise invaluable government safeguards, including the Ninth and 10th Amendments, theCommerce Clause, the Necessary and Proper Clause, the Privileges or Immunities Clause (of the 14th Amendment), the Second Amendment via “gun control,” and the Takings Clause in the Fifth Amendment via unwise readings of “eminent domain.”

Upshot per our author: The Constitution, based on the Founders’ presumption of liberty and natural rights (recall Thomas Jefferson citing “the Laws of Nature and of Nature’s God” in the Declaration of Independence), has been lost. A sorry situation, yet not an irretrievable one.

“Restoring the Lost Constitution” then is a hopeful work — provocative, documented, resolute, reasoned, readable — delightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road.

Well, what’s wrong with the 16th Amendment? In authorizing an unrestricted tax on income, “from whatever source derived,” it strains the Fourth Amendment checks “againstunreasonable searches and seizures,” hits private property and privacy rights, opens up class warfare via rate progressivity between “the rich and the poor.” As Mr. Barnett says, “Many advocates of liberty think taxation of this sort is [legalized] theft.”

What about the 17th Amendment? Our author holds that popular election of senators “imprudently” nips a vital check on federal power: the offsetting power of senatorial appointments by state legislatures.

Also, the 14th Amendment requires that the privileges or immunities of citizens shall not be abridged. So it sets tight textual limits on the exercise of the states’ police power — limits not always observed by a pliable Supreme Court.

On the Fifth Amendment Takings Clause, our author sides with University of Chicago law professor Richard Epstein. Mr. Epstein notes that originally the clause prescribed takings of public property for public use only, but it has since been interpreted to permit takings for a public purpose, so gutting “a crucial limitation on this dangerous power.”

Thus a town may seize private property under eminent domain to erect, say, a new shopping mall and so gain greater local revenues. A no-no in the eyes of our author and the Founders.

On the much-ignored Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), Mr. Barnett takes Judge Robert Bork, retired distinguished fellow at the American Enterprise Institute, to task.

During his unsuccessful Senate confirmation hearings for a Supreme Court slot, Judge Bork famously likened such unspecified, open-ended rights to “an ink blot,” adding he didn’t “think the Court can make up whatever rights might be under the ink blot.” Mr. Barnett concedes the Bork opinion is within the mainstream of legal, if fatally conceited, thought.

Mr. Barnett still rebuts Judge Bork, noting that the Ninth Amendment, the creation of constitutional architect James Madison, is a way to preclude specific guaranteed rights — such as freedom of speech, press and assembly — from being the only rights for Americans. Unenumerated rights — e.g., the right to marry or not to marry — are simply not to be denied nor disparaged.

Still, if “as is,” the Constitution stands. Reform is possible. For example, the 18th(Prohibition) Amendment of 1919 fell into flagrant public disregard and overt gangsterism. It was mercifully repealed by the 21st Amendment in 1933.

Or, as Randy Barnett concludes his book: “So long as the courts profess fealty to the written Constitution under glass in Washington, the opportunity still exists to adopt a Presumption of Liberty and restore the lost Constitution.”

William H. Peterson is an adjunct scholar at the Heritage Foundation and a contributing editor to the FoundationforEconomic Education’s “The Freeman: Ideas on Liberty.”