Vol. 14 No.11 (November 2004), pp.900-911

RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY, by Randy E. Barnett. Princeton, New Jersey: Princeton University Press, 2003. 360pp. Cloth. $32.50 / £21.50. ISBN: 0-691-11585-0.

Reviewed by Ronald Kahn, Oberlin College. Email: ronald.kahn@oberlin.edu

For Randy Barnett, individual liberty is at the core the Constitution. By interpreting it through original meaning, he believes that justices should presume that citizens retain liberty interests unless the government can show that a law is both necessary and proper under enumerated powers.  Barnett makes a forceful, detailed and rigorous argument for expansion of natural rights principles in constitutional law, an expansion which would better protect the liberty of citizens in private space. He argues that courts have ignored various clauses of the Constitution (the Necessary and Proper and the Privileges and Immunities Clauses) to justify expanded governmental power, thus essentially neglecting the original meaning of the Constitution. He examines why we should follow the Constitution’s rejection of “consent of the governed” and “receipt of benefits” arguments as bases for constitutional action and theory. He argues that the legitimacy of adequate procedures must ultimately rest on whether restrictions on non-consenting individuals are just (or not unjust) (p.3). He emphasizes that the founders understood that rights preceded the Constitution, as natural rights, and asks whether restrictions on liberty should be considered “presumptively unconstitutional” unless the government can show they are “necessary and proper” (p.5).  If we do not use this presumption of liberty approach, Barnett opines, judges hold the power to decide everything with no real authority to support their decisions.

In “The Fiction of ‘We the People’: Is the Constitution Binding on Us?” (Chapter One), Barnett argues that the “consent of the governed” justification is an insufficient foundation for legitimacy, because the Constitution was intended to bind the government, not citizens. Barnett argues that the people are not required to obey laws because they agreed to them, because the people never agreed to the Constitution. The “consent of the governed” argument does not work because this is not a direct democracy.  If our candidate in an election loses, we did not consent to the winner.  Moreover, not voting is insufficient basis for evading the power of laws. Since there is no way NOT to consent under present voting schemes, voting cannot be said to constitute consent. Residency also does not constitute consent. No one is required to take an oath to the United States except immigrants—everyone else is born here. Residency assumes tacit consent, which implies that lawmakers have some right to demand our consent. Similarly, we are not bound by the “consent” of the Framers, and the absence of rebellion does not constitute consent, because acquiescence is a requirement of a legitimate Constitution. However, acquiescence alone is not sufficient to establish consent. Barnett also addresses the “receipt of benefits” argument, the [*901] view that we obligated to follow law because we derive benefits from the government. In this regard, he asks how one might refuse certain benefits.  For example, would a slaveholder be able to say he provides food and shelter for slaves, and therefore is just in demanding their obedience?  This is clearly not a consensual relationship. 

In Chapter Two, “Constitutional Legitimacy Without Consent: Protecting the Rights Retained By the People,” Barnett argues that the Constitution is only legitimate if it assures that all laws are “necessary and proper”—a procedural vision rather than a consensual one. In fact, more consent can actually mean less freedom.  Gated communities represent a case in point. However, unlike such communities, in the real world there is no low cost exit. When there is less consent, more freedom is needed. Unanimous consent is impossible over the whole country.  Thus, because people may consent to almost anything, they have the liberty to consent to laws that greatly restrict their freedom.  In the absence of actual consent, however, Barnett emphasizes that liberty remains intact, and thus must not be infringed.

In Chapter Three, “Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities,” Barnett examines the conception of rights held by the Framers.  His thesis is that “If (a) the framers held certain views of rights, (b) their conception of rights was correct, and (c) they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience” (p.53).

Thus, natural rights are liberty rights, not license. Although they are not necessarily enumerated rights, they “are liberties or freedoms to believe or act in certain ways.  They are not positive claims on government or on others” (p.57).  These natural rights are, in fact, “unenumerable,” because there are so many.  They define a private sphere around the citizen into which the government may not enter, provided the citizen is not exercising his/her liberty interest in a way that harms others. Rather than being created by government, natural rights exist independent of and precede the establishment of government.  It is these rights, rather than positive claims (like a right to a trial) that are the reference points of the Ninth Amendment. Moreover, the Privileges or Immunities Clause of the Fourteenth Amendment includes natural/liberty rights as well as others. When citizens “surrender” rights to be part of society, they exchange natural for civil rights, and by so doing allow state police powers.  Citizens give up rights as they allow government enforcement of regulations, but the citizen remains the “master.” Rights may be retained while being regulated—that is, “made regular.”  The citizen retains a right of contract, for example, but the government may regulate how contracts are formed and enforced.

Barnett emphasizes that, if the Founders were right about natural rights (that is, that they were liberty rights), and if the system they devised for protecting these rights “impart[s] legitimacy on validly enacted laws, it does not matter that the founding generation and those who enacted the Fourteenth Amendment may have been wrong about popular [*902] sovereignty” (p.78). Even without consent, the government is legitimate because of the political process enacted in the Constitution.  Barnett argues in favor of the framers’ view of natural rights because, for him, this view of background rights works to solve social problems of knowledge, interest, and power (p.80). He writes,

The argument in defense of natural rights is that, given the nature of human beings and the world in which we live, if you want a society in which people can pursue happiness, and in which civil society can enjoy peace and prosperity, then you had best respect certain rights.  In particular you need to protect the bounded freedom of individuals to make their own choices based on their personal and local knowledge in pursuit of their own interest. (p.82)

In Chapter Four, “Constitutional Interpretation: An Originalism for Nonoriginalists,” Barnett “argue[s] that the words of the Constitution should be interpreted according to the meaning they had at the time they were enacted” (p.89).  In other words, he employs an “original meaning” analysis that is text-based rather than attempting to determine the intent of the framers.  Barnett supports this approach because he sees it as the best way to “lock in” a written Constitution.  If the Constitution was legitimate when it was enacted, it should not be changed (without amendment)—and particularly not by government officials who are supposed to be limited by it.  The value of a written document is lost if the Constitution is understood as whatever judges want it to say. Therefore, Barnett argues that his form of originalism is needed to ensure a legitimate government. Barnett’s form of originalism looks for the “public meaning” of the words in the Constitution at the time it was enacted. The importance of the written form can be seen by looking to contract law, where adherence to written documents has evidentiary, cautionary, channeling, and clarification functions.  Barnett uses the ideas behind the notion of fraud, the oral or verbal evidence rule, and the objective theory of contractual interpretation to explain why the public meaning of words is so important (pp.100-103).  Moreover, he argues that if adherence to structuralism produces wrong results, then it is the Constitution which is at fault, not the procedure of adhering to what has been written.

Barnett answers the question of why we should adhere to the meanings, intentions, and the like, of those long dead, by reasoning that no one alive today consented or could consent to the Constitution (as shown in prior chapters) anyway.  The issue is whether the process outlined in the Constitution is “good enough” to provide for a legitimate government.  If so, then deviating from it may not be good enough and provides too many opportunities for abuse of rights.  If it is not, then it should be either amended or rejected.

In Chapter Five, “Constitutional Construction: Supplementing Original Meaning,” Barnett argues that there will be times when, due to vagueness in the Constitution and to new circumstances unforeseen by the framers, it will not be possible to determine the right outcome from original meaning. Many times, the meaning of a passage is historically [*903] determined and can be understood through originalist methods. When it cannot, originalist methods of interpretation should still be used to establish an acceptable range of meanings before engaging in constitutional construction and adding to the meaning of the Constitution. This method “adopt[s] a construction of the text that is consistent with its original meaning but not deducible from it” (p.121).   Construction should never change the original meaning. To make his argument, Barnett draws upon Keith Whittington’s (1999) seven categories of construction: organic structures, delegation and distribution of political powers, individual and collective rights, structures of political and participation/citizenship, jurisdiction, domestic government role, and international posture. “Each of these doctrines fleshes out how the government is ‘constituted’ in ways that are not specified in the written Constitution, but which require some specification nevertheless” (p.122).  However, unlike Whittington who sees the filling of these gaps within original meaning as political and completely open-ended, Barnett argues that the choice of rules of construction are guided by abstract and general principles found in the Constitution, and thus is a more disciplined process than Whittington envisions.

Most importantly, for Barnett, some passages of the Constitution, such as the Ninth Amendment and the Privileges or Immunities Clause, require principles beyond the text of the constitution. Therefore, an originalist interpretation of their meaning would demand construction, which then becomes open to challenge and entails changes in understanding without amendment, unlike the Constitution itself.

In Chapter Six, “Judicial Review: The Meaning of Judicial Power,” Barnett explores the legitimacy of judicial review, given that it is not expressly granted in the Constitution. He concludes that looking at the historical meaning of judicial review, judicial nullification of laws was included in the power of the judiciary. He refers to the intentions of the framers as part of his historical evidence but notes that this is only to determine the public meaning of the term “judicial power,” as it was used by both opponents and supporters of this power. Under this system, the judiciary does not have authority over the other branches; every branch must concur to make a law.  Judicial review includes the power to police Congress, but not to “permit Congress to exceed the limits on its power by changing via ‘interpretation’ the written Constitution” (p.141).  However, judicial supremacy—commanding the other branches to follow the courts’ interpretation—as opposed to nullification, is not supported by original meaning.

In Chapter Seven, “Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause,” Barnett argues that Congress only has the enumerated powers listed in the Constitution, and these should be limited to their original meaning. He asks: “When considering a law’s necessity or propriety, how much deference do courts owe to Congress?”(p.155). He finds that the Convention rejected an general grant of power to the legislature, preferring to enumerate powers. The necessary and proper clause was added to help Congress utilize enumerated powers, not [*904] to give them new ones. Barnett assesses extensive historical evidence for original public meanings.  He finds that “necessary” could be understood either as “absolutely necessary” or merely “convenient,” and he eventually decides that the original meaning was probably somewhere in between the two concepts, so that “a showing of necessity should be neither so ‘strict’ that no statute can muster, nor so lenient than any statute can pass” (p.176).  The Constitution, as Barnett reads it, “creates the requirement of a degree of means-end fit somewhere between those two extremes. Consideration of constitutional construction also argues against a loosed standard of ‘convenience’” (p.178).

In constructing his argument, Barnett accepts the Madison, Jefferson, and even Hamilton standard, but not Marshall’s more lenient, or convenient, model which allows courts (Barnett finds courts to be generally unqualified) to second-guess a congressional determination. Therefore, to be permissible under the Necessary and Proper Clause there must be a clear means-end fit in the law as described above, as well as a demonstration that “the means chosen do not prohibit the rightful exercise of freedom (or violate principles of federalism or separation of powers), and, finally, that the claim by Congress that it is pursuing an enumerated end is not a pretext for pursuing other ends not delegated to it” (p.190).  Moreover, Barnett believes, Congress should not be the sole judge of what is necessary and proper.  Judges must fulfill this role.

In Chapter Eight Barnett asserts that “[t]he function of the Privileges or Immunities Clause is to protect the citizenry as a whole against unnecessary or improper legislation that infringes upon the exercise of their civil rights or liberty” (p.200).  This scheme includes both enumerated rights in the Bill of Rights and natural rights protected by the Ninth Amendment.  The Privileges or Immunities Clause protects these rights from improper laws; the Due Process Clause prohibits “improper application of an otherwise proper law” (p.201). As constitutional scholars know, the Privileges or Immunities Clause was rendered ineffective by the SLAUGHTER-HOUSE CASES; however, questions regarding protection of similar rights came up again, under Due Process, during the LOCHNER era.

Barnett argues that the concept of due process of law is substantive, an essential element of the original meaning of judicial power, because “a vital element of the ‘due process of law’ is the judicial scrutiny of the necessity and propriety of legislation” (p.207). Thus, substantive due process restores the original meaning of the Fourteenth Amendment (as a whole). He writes,

When the liberty of the individual clashes with the power of the state, the Court would not accept the “mere assertion” by a legislature that a statute was necessary and proper.  Instead, it required a showing that a restriction of liberty have a “direct relation, as a means to an end” and that “the end itself must be appropriate and legitimate.” (p.214)

Barnett disagrees with Justice Harlan’s construction of due process in ADAIR v. US, where he proffered that laws are presumed constitutional unless the harmed party can show they are not.  [*905]  

In Chapter Nine Barnett addresses the way the New Deal Court overturned LOCHNER—by adopting a doctrine of “presumption of constitutionality.” He presents a history of the application of Footnote Four and argues that the Court generally obviated the Ninth Amendment, restricting the field of protected rights only to enumerated ones. He notes that pure Footnote Four jurisprudence is no longer used, in part because privacy cases have added to the list of enumerated rights that the Court deems “fundamental.” Barnett emphasizes that this approach does protect liberty rights that should follow from proper interpretation of the Ninth Amendment. Nonetheless, it may have improperly put too much power into the hands of judges who now decide what is, and is not, fundamental. Moreover, Barnett criticizes “originalists” for adopting a Footnote Four approach because it actually does not square with original Constitutional meaning: “Footnote Four runs afoul of the text of the Constitution, as does the modern Footnote Four-Plus variation that lets judges pick those unenumerated liberties they deem fundamental from those they dismiss as mere liberty interests” (p.234).

Taking the definition of natural rights from the framers’ understanding of liberty, Barnett writes that, under this model, “not any rights claim is justified under the Ninth Amendment, but only the liberty to act free of unjustified interference” (p.235).  Thus, the Ninth Amendment does more then merely refer to unenumerated natural rights and affirm their existence. “It also mandates how they are to be treated: they are not to be ‘denied or disparaged’” (p.235).  Congress has a responsibility to protect both enumerated and unenumerated rights. The Ninth Amendment was considered a safeguard for unenumerated liberties—the government must avoid restrictions in the first place, according to the necessary and proper clause.

In Chapter Ten, Barnett asks, how can we identify which rights are protected by the Ninth Amendment if they are not listed anywhere?  Barnett suggests two methods—originalist and presumptive.  Thus, we could, through historical examination, acknowledge only those liberties protected by original meaning.  It turns out that this is difficult to do.  But, more importantly, it violates the original meaning of the Ninth Amendment:

The Ninth Amendment was written at a higher level of abstraction or generality—that of natural liberty rights—than any specific list of liberties and deliberately so.  The Ninth Amendment and Privileges or Immunities Clause referred to natural rights because it was impossible to specify them all in advance.  Any approach that overlooks this in favor of particular historically situated liberties runs afoul of original meaning. (p.258)

Moreover, Barnett views the Ninth Amendment as establishing a “presumption of liberty,” which puts the burden of proof on the legislature to show that any limitation of freedom is both necessary and proper.  This is in opposition to the current presumption of constitutionality that places the burden on the citizen, unless there is an enumerated or implied fundamental right at issue. This presumption of liberty is justified because it is a better fit with [*906] the original meaning, and because legislatures cannot be trusted to judge the laws they create. Barnett presumes that the founders had a distrust of political power, and the Ninth Amendment and Privileges or Immunities Clause were placed in the Constitution so courts could limit the abuse of power.

Thus, Barnett places unenumerated rights in the same constitutional zone as enumerated rights.  Any restraint of liberty should be considered in the same way as an infringement of freedom of speech.  Time, place, and manner restrictions would be okay, as would a prohibition on wrongful actions (such as fraud).  Conduct is unacceptable when it violates the rights of others—it is therefore not liberty but license.  To the question of whether the Courts should decide wrongful versus rightful behavior, Barnett would reply that they already regularly do so.  Using this model would merely extend Court decision making to cover all natural rights.

Barnett is arguing that judges should be authorized to make such distinctions, because under our constitutional system the only other real option is to allow the legislature to judge its own laws. Constitutional amendment is possible, but only when there is overwhelming popular support.  Judges can be replaced through the appointment process, but this is a gradual and imprecise project. Barnett writes,

These various mechanisms by which Supreme Court rulings protective of liberty can be challenged mean that sooner or later a sustained majoritarian preference will eventually overcome any judicial resistance.  That this takes some time and effort is, in most instances, salutary. In any event, such delay is absolutely essential if legislatures are not to be judges in their own cases when they restrict the liberty of citizens. (p.268)

In Chapter Eleven, “The Proper Scope of Federal Power: The Meaning of the Commerce Clause,” Barnett observes that the Constitutional Convention purposely did not grant Congress sweeping or absolute power.  Indeed, congressional power is limited. To determine the original meaning of terms in the Commerce Clause, he assesses detailed historical evidence.  Commerce, he notes, was understood in a narrow sense and did not include manufacturing or agriculture.  It was limited to exchange of goods. “To regulate” was not meant in the expansive sense of “to govern” or “to prohibit,” but instead “to make regular.”  Only when the rights of a third party or innocent bystander are violated does “regulate” mean “prohibit.” “Among the several States” meant trade between states or people of different states, and did not extend to the many permutations apparent in today’s parlance, which allow Congress to engage in quite comprehensive intrusions. Even accepting a broad definition, though, Congress has exceeded its power. For example, nongainful, noncommercial activities such as possession and use of drugs, or transmission of information, even when it crosses state lines, should not be within Congressional reach (pp.113-114).

In Chapter Twelve, Barnett contends that the powers of states are more difficult to [*907] discern because they are not enumerated.  Nonetheless, the Privileges or Immunities Clause indicates that they are limited in important ways. States hold “police power,” which also entails a respect for natural liberty rights. Accordingly, he notes that “[a] presumption of Liberty puts the burden upon states to justify any interference with liberty as both necessary and proper” (p.333).  This amounts to the power to “regulate rightful and prohibit wrongful acts” (p.327). However, “Moral” legislation would be prohibited because it basically gives unlimited power to restrict liberty. Thus, for Barnett, the presumption of liberty works here to ensure only the legitimate use of state power.

One can see these principles at work in the discussion of LAWRENCE v. TEXAS (2003).  Government may limit conduct “in public places,” but is far more constrained to limit conduct in private spaces that do not harm others, despite a majority view that such acts are “immoral.” Barnett writes,

By providing no judicially enforceable limits whatsoever on the police power of states, such a construction would violate the original meaning of the Fourteenth  Amendment. Because it would permit legislatures to abridge the privileges or immunities of citizens, and because it appears nowhere in the text of the Constitution, such a claim of power is illegitimate . . .

Justice Kennedy’s opinion in LAWRENCE is especially noteworthy because it protects “LIBERTY, rather than privacy, without any discussion of whether that liberty was “fundamental.” Having identified the conduct as liberty (not license), it then placed the burden on the government to justify its restriction. In this way LAWRENCE can be viewed as escaping the Footnote Four-Plus framework described in Chapter 9, and employing in its place a Presumption of Liberty. (p.334)

In Chapter Thirteen, Barnett suggests that the techniques used to assess infringements on First Amendment freedoms can be extended to all violations of freedom. This requires a means-end fit, as articulated in CLEBURNE (1985), and a least restrictive means test like that in PLAYBOY (2000).  Thus, Barnett advocates a variable approach: “a standard that no statute can pass is as hypocritical as a standard that every statute can pass. What is required is real or meaningful scrutiny of both the necessity and propriety of restrictions on liberty” (p.344).  If laws are to be binding, given that no real consent of the governed exists, there must be a presumption of liberty to ensure that any restrictions on freedom are legitimate. Easy cases would include those focusing on enumerated or already declared “fundamental” rights, as well as non-fundamental rights. This removes the problem of classifying only certain rights as fundamental. More controversial cases would include the right to bear arms, which, under originalist analysis, would include the right to possess any weapon that is not inherently dangerous (e.g., a weapon of mass destruction).  In addition, almost all crimes involving mere possession (drugs, pornography, and the like) would be unconstitutional. 

A presumption of liberty also leads to results that many Americans would find to be “wrong outcomes,” such as a [*908] prohibition on national laws regulating pollution and labor (e.g., minimum wage).  However, even if we disagree with these outcomes, according to Barnett, the solution is to amend the Constitution, not violate original meaning and expand the power of Congress.

This analysis represents one of many recent attempts by scholars to demonstrate that originalist interpretations by the Supreme Court can be liberal, rather than conservative, in both theoretical and policy terms. Barnett makes a strong case for constitutional legitimacy based on a process that ensures just laws; however, his argument that originalism can “lock in” Court legitimacy is less strong.  On one hand, he argues that this original public meaning must be the only guide for interpreting the Constitution.  On the other hand, he relies heavily on the writings of the founders and accounts of the Constitutional Convention and ratification proceedings.  This renders his arguments from originalism susceptible to the very problems he details.

He also runs into the problem of interpreting BROWN, which he never attempts to do.  While Barnett writes that a method of interpretation cannot be judged solely on whether it produces politically palatable results, surely he would view a Constitution that allowed no recourse for segregation to be “illegitimate.” Yet he clearly views our Constitution and his interpretation of it as being legitimate, both when it produces popular results (protection of speech rights, for example) and unpopular ones (his example that Congress should not regulate pollution).  At the same time, the Fourteenth Amendment, as it was understood originally by its writers and the general public, did not prohibit segregation.  Barnett never discusses the key problem here: should we be able to change this original meaning because we do not like it?  He clearly rejects this idea.  On the other hand, would it make sense to pass an identical amendment that, this time around, meant what we currently think when we read the Fourteenth Amendment? 

Barnett does not address whether a method of interpretation that relies on text but also allows for contemporary meanings of words would be legitimate. Would it have the same “locking in” character that he claims for his version of original meaning?  After all, when we think of racial discrimination today, segregation obviously falls into this category.  That it did not for the general public at the time the Fourteenth Amendment was passed does not mean that segregation should be accepted now, as a limitation on our constitutional regime.  And even though Barnett espouses a complete commitment to original meaning, unless that original meaning is unjust or illegitimate, in which case the Constitution should be rejected, he advocates neither segregation nor throwing out the Fourteenth Amendment completely.

Similarly, would it be wrongfully changing the Constitution to accept that as state, national, and international economies have grown more and more interdependent, the original meaning of “commerce” in the Constitution may no longer be appropriate or relevant in today’s world?  It seems to me that it would be much more in keeping with the [*909] spirit of the Constitution to adopt a meaning consistent with the contemporary public meaning of “commerce”—that is, what commerce typically means to citizens of the United States today.  Under this sort of interpretation, it might very well be that commerce, as most citizens understand it, does include wages we pay workers and externalities created by corporations that pollute with no regard for the public good. 

Barnett’s fundamental problem is that he allows for “constitutional construction” when originalism cannot tell us which meanings to adopt, but he does not seem to allow for social construction of law, or changing social meanings.  The meaning of “commerce” is frozen at the time of the founding, and later understandings about the respective roles of employer and employee and distribution of power within such relationships, as well as the effect these relationships have on the national economy and “interstate commerce” are completely ignored.

Setting aside Barnett’s dependency on original meaning, his theory of a “presumption of liberty” is quite interesting.  This theory would place all unenumerated liberties on par with enumerated liberties such as those listed in the First Amendment.  This approach seems like it could represent the spirit of the original Constitution, which did mean to restrict government only to certain powers and reserve rights generally to the people.  Barnett’s selection of particular rights, though, runs afoul of the same problem as in justices’ selection of fundamental rights.  He justifies protecting only natural “liberty” rights by referring to original meaning.  While this is one approach, there are some liberties that are quite obviously “surrendered up”—that of enforcement, for example.  Could we not also say that, by way of the Commerce Clause, citizens “surrender up” their right to make any labor contract they wish (e.g., one paying extremely low wages for many hours in a dangerous workplace) in exchange for “regular” protections such as a minimum wage and safety laws?  Barnett stresses that regulation (“to make regular”) is different from prohibition.  A minimum wage law can be seen as a way to make labor contracts “regular” by stipulating that they must all meet certain conditions to be considered valid, instead of, as Barnett seems to see these laws, a prohibition on labor contracts all together.

In addition, he classifies actions as “wrongful” and therefore capable of being prohibited when they infringe on the rights of others.  Applying contemporary understanding of power in employer-employee relationships, it is at least reasonable for a legislature to conclude that an employer who takes advantage of this fact to exploit workers is infringing on their rights.  A legislature might then promulgate labor law as an attempt to equalize this power differential and prevent infringement of workers’ rights.

This book is terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution—e.g., the right to be left alone when engaging in private actions which hurt no others, as explored by the Supreme Court in LAWRENCE v. TEXAS (2003). The theory and analysis [*910] wavers and is less clear when Barnett starts to explore limitations on property rights and rights of individuals in the capitalist economic system.

Finally, readers might wish to compare this book with Barber’s WELFARE AND THE CONSTITUTION. Barber argues that basic constitutional principles and founding documents such as THE FEDERALIST require a benefits view of the Constitution—i.e., government must provide basic substantive benefits to the people as its main purpose.  Thus, Barber’s understanding of the Constitutional mandate is very different from that offered by the Barnett, a difference that reflects competing conceptions of the basic purpose for the Constitution and government.  Barnett sees the Constitution as a social contract that protects primarily liberty interests, which are expandable under natural rights principles.  If laws are to be binding in conscience, they must entail no unnecessary infringements on the right of citizens to do what they want, provided they do not harm others.  Barber sees a more expansive view for government, arguing from the works of the political theory behind the founding, that if government were more dangerous than beneficial, it would not be worth having at all; government is created to act, to improve the general welfare. Of course, defining the welfare of the people is always a contentious process. 

The institutions of government were established under the Constitution to promote the general welfare, but for Barnett, the founders specifically denied an expansive power to Congress to do so, relying instead upon the theory that the welfare of the people would be best advanced by limiting the national government to specific powers.  What constitutes the general welfare will not be agreed upon by everyone. Any attempt to ensure the welfare of the people under the Constitution, even if approved by the majority, for Barnett, could potentially restrict the rights of all citizens, especially their liberty interests.

Thus, we reach the different perspectives articulated in the superb scholarship of Barber, who sees within our nation’s founding principles a basis for contemporary revival of positive constitutionalism, and in this excellent work by Barnett, who finds that these very same documents and history support what might be called a negative constitutionalism, the major objective of which is to protect individual liberties.  Moreover, for Barnett, courts provide the main venue for defining implied fundamental rights, a power which must increase through time as our nation becomes more complex socially, economically, and politically.


Barber, Sotirios A. 2003. WELFARE & THE CONSTITUTION. Princeton: Princeton University Press.

Kahn, Ronald. Review of Sotirios A. Barber. 2003. WELFARE & THE CONSTITUTION. Princeton: Princeton University Press. LAW AND POLITICS BOOK REVIEW. Vol. 14 No 7 (July 2004): 583-597.

Whittington, Keith E. 1999.  CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW.  Lawrence, KS: University Press of Kansas. [*911]


ADAIR v. US, 208 US 161 (1908).

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).


LAWRENCE v. TEXAS, 539 US 558 (2003).

LOCHNER v. NEW YORK, 198 US 45 (1905).




© Copyright 2004 by the author, Ronald Kahn.