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Freedom and the Burden of Proof: Randy Barnett's New Book on the Constitution


Timothy Sandefur


Pacific Legal Foundation


Independent Review, Vol. 10, p. 139, 2005

Abstract:     
In Restoring 'The Lost Constitution', Randy Barnett makes two main arguments: (1) that the legitimacy of a Constitution does not hinge on the consent of the governed, but on the degree to which the government respects the rights of the non-consenting; (2) that a constitutional theory should presume in favor of liberty, requiring advocates of government intervention to justify their position. (Current law holds the opposite, requiring those challenging the constitutionality of a law to bear the burden of proving its unconstitutionality.)

Although Barnett makes compelling arguments for his theses, they could be supported more strongly by legal history than he seems to be aware. Specifically, I argue that the debate between the current presumption in favor of government, and Barnett's presumption of liberty, can be traced to the difference between the Lockean ideas of the founders and the ideas of William Blackstone, which gained popularity during the nineteenth century.

Number of Pages in PDF File: 10

Keywords: Randy E. Barnett, Barnett, Restoring The Lost Constitution, sovereignty, Blackstone, limited government, substantive due process, Calder, Sharpless, Billings

JEL Classification: K10, K30, K40

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Date posted: July 28, 2005  

Suggested Citation

Sandefur, Timothy, Freedom and the Burden of Proof: Randy Barnett's New Book on the Constitution. Independent Review, Vol. 10, p. 139, 2005. Available at SSRN: http://ssrn.com/abstract=760984

Contact Information

Timothy Sandefur (Contact Author)
Pacific Legal Foundation ( email )
930 G Street
Sacramento, CA 95814
United States
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