I just finished reading Randy Barnett’s book Restoring the Lost Constitution: The Presumption of Liberty. While the book has received its share of criticism (see here), including by one of the CockleBur contributors (see here), I found the book very interesting. I cannot say that I agree with all of it or even most of it, but there was one part that I agreed with wholeheartedly.
But before I get to it, let me explain my legal perspective. I rarely study constitutional methodology. For the most part, my study of law has been concerned with particular legal claims and precedent, rather than some overarching methodology for interpreting the entire constitution. When I have studied methodology, I have found a fair number of them contain standards of interpretation that seem designed to cause more confusion than understanding. Also, it’s hard to take these methods seriously; I have studied judges long enough to know that there are many cases where the judge’s methodology gives way to personal preference, especially personal political preferences (for example, Justice Scalia’s strong originalist belief in federalism did not matter in Bush v. Gore, and Justice Stevens’ belief in strong free speech rights did not matter in Texas v. Johnson).
That being said, I am finding methodology more interesting these days not only in the law but in other areas of my life. And while I have not arrived at any conclusion about the best methodology, I must say I kind of like the journey.
Now back to Restoring the Lost Constitution. The area of Professor Barnett’s book that I found most persuasive is his belief in the “writtenness” of the Constitution. Under this view, the whole reason we have a written Constitution is to lock in particular constraints on government. In other words, we have written laws so that we are not making it up as we go.
I think a lot of methodologies pay lip service to following the text. Surely the “living constitution” method and Justice Scalia’s originalism have succumbed to this at times.
This is what Barnett had to say:
[T]he act of putting written constraints on lawmakers had—and still has—enormous value apart from the wisdom of what a constitution says. Constitutional scholars neglect his value when they advocate methods of interpretation whose purpose is to improve upon the content of a written constitution, thereby undermining the function of its writtenness. How can a meaning be preserved or “locked in” and governors checked and restrained if the written words mean only what legislatures or judges want them to mean today?
Barnett follows with this proclamation:
The way the Constitution has been interpreted over the past seventy years has meant that, with some exceptions, the Necessary and Proper Clause has no justiciable meaning, the Privileges and Immunities Clause has no justiciable meaning, the Ninth Amendment has not justiciable meaning, the Tenth Amendment has not justiciable meaning, the Commerce Clause has no justiciable meaning, and the unenumerated police powers of the states has no limit.
To me, both of these statements don’t just seem true; they are true.
I wonder how many provisions of the Constitution are really “locked in.” Is there anything contained in the Constitution that is beyond the judges’ power to recreate or improve upon? Just something to think about…
Restoring the Lost Constitution: The Presumption of Liberty can be found here.
Professor Barnett’s reply to criticism can be found here.