Does the Constitution Embody a Presumption of Liberty?

21 Pages Posted: 17 Aug 2005  

Douglas G. Smith

Kirkland & Ellis LLP

Abstract

This article reviews Randy Barnett's book, Restoring the Lost Constitution: The Presumption of Liberty (2004). The article maintains that the presumption of liberty that Professor Barnett outlines in his book may represent an oversimplification of the original meaning of the Constitution and its subsequent amendments. The article further concludes that, from a theoretical perspective, such a presumption may not be necessary to support the Constitution's legitimacy. To the extent traditional theories of constitutional legitimacy, such as popular consent, withstand Professor Barnett's critique, there is no need for a constitutional presumption of liberty.

Keywords: Constitution, interpretation, liberty, libertarianism, Barnett

Suggested Citation

Smith, Douglas G., Does the Constitution Embody a Presumption of Liberty?. University of Illinois Law Review, No. 1, 2005. Available at SSRN: https://ssrn.com/abstract=781345

Douglas Geoffrey Smith (Contact Author)

Kirkland & Ellis LLP ( email )

300 North LaSalle
Chicago, IL 60654
312 862 3374 (Phone)

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