Lamenting Lochner's Loss: Randy Barnett's Case for a Libertarian Constitution

Abstract:     
This review essay discusses Randy Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty. In general terms, the book argues that current constitutional doctrine grants too much power to federal and state legislatures, and provides too little protection to individual liberty. To remedy the problem, Professor Barnett proposes abandoning the presumption of constitutionality that courts typically accord to state and federal laws, and adopting in its place a presumption of liberty that, he contends, is more consistent with the Constitution's original meaning.

In this review, I discuss four points on which Restoring the Lost Constitution gives me pause. First, the book proceeds from an extra-textual political theory that is difficult to square with the actual framing of the Constitution, a dilemma that is particularly acute for Professor Barnett since he defends a form of originalism as the appropriate mode of constitutional interpretation. Second, Professor Barnett's defense of an original meaning approach to constitutional interpretation features a rather strained attempt to analogize constitutions to contracts, and, in the process, slights competing accounts of constitutional interpretation. Third, especially in his discussion of the state police power, Professor Barnett operationalizes his presumption of liberty by injecting into the Constitution a number of remarkably unstable conceptual distinctions. Fourth and finally, Professor Barnett's argument for a generalized jurisprudence of liberty neglects the extent to which particular articulations of liberty in our constitutional system may be linked to another core constitutional value: equality. Greater attention to a liberty-equality link could yield a significantly different, and better grounded, understanding of the appropriate constitutional balance between government power and individual freedom.

The Cornell Law Review will publish a reply from Professor Barnett in the same issue as this review.

Number of Pages in PDF File: 33

Accepted Paper Series