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

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

10 Pages Posted: 28 Jul 2005


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.

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

JEL Classification: K10, K30, K40

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:

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

500 E. Coronado Rd.
Phoenix, AZ 85004
United States
(602) 462-5000 (Phone)
(602) 256-7045 (Fax)


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics