The Presumption of Liberty


Randy Barnett has an interesting piece in National Review today, arguing that the Lawrence decision could pave the way for a radical—and positive—shift in constitutional jurisprudence.


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  1. Thank you for passing this link along, Mr. Walker. Barnett gave us quite a lot to ponder. Up to this point, I hadn’t read the complete Lawrence opinion (it’s not like I am a member of the legal class, whose livelihood depends on keeping up with this kind of thing — I’m just a citizen with family and a job to tend, after all), but now it is on my required reading list, if only to see if I can find Mr. Barnett’s remarkable thesis shining out of that text. If he’s right (and especially if this interpretation is reinforced by subsequent decisions), then there might yet be hope for at least the next several decades of this American Experiment.

    Somebody chided me on these boards some months ago, for expressing any faith at all in the court’s willingness to repudiate the government’s power, under the commerce clause, to actually prohibit commerce instead of simply regulating it. This fellow doubted that a majority of justices would find it within themselves to overturn almost a century of commerce-clause justification for government intervention in (and frequently, prohibition of) peaceful activity. Maybe he was right about that, but now, maybe, the court must nevertheless go down that road because of the precedent they have set in Lawrence. I’m very eager to see what they do, especially when the WAMM case comes to them, as it seems very likely to do.

  2. I wish that the court were to look at things the way Professor Barnett indicates they might be from the Lawrence decision. Alas, we all know that is not the case. Once again, the court decided what it wanted (or at least the majority did) and then adopted language to make their desire into law that was acceptable to five members of the court. There is no revolution of Libertarian thought here. Just finger-to-the-wind politics as usual.

    This is not to say that the substance of the decision was wrong, just that the rationale isn’t as it appears.

  3. Actually, the SCOTUS has scaled back the power of the Congress vis a vis the Commerce Clause several times over the past decade.

  4. “Surely under any originalist interpretation, the Ninth Amendment never prohibited sodomy laws.”

    The Ninth Amendment is purely precautionary. In and of itself, it establishes nothing and prohibits nothing except the interpretation of the Constitution implicitly adopted by the New Deal Court, namely, that the only rights entitled to Constitutional protection are the enumerated rights. It certainly does not tell us which liberty interests are protected by the Constitution, or tell us that only those liberty interests recognized in 1789 will be protected by the Constitution.

    A critique of the notion that anti-sodomy laws are deeply imbedded in our culture is here:

    and even granting that such laws were tolerated at the time does not mean that the failure to challenge them was correct or that such laws do not in fact violate a liberty interest protected by the Constitution. After all, the laws in place when the Consitution was promulgated prohibited a number of sex acts even by married couples; surely no one would argue today that sex within marriage is not a protected liberty interest?

    In any event, I see the primary possibility for the advancement of liberty in the Lawrence opinion is not in the possible contours of protected liberty interests (which is what we are discussing here), but rather in the reversal of the presumption that laws are Constitutional unless they trespass on an enumerated right. This presumption is the New Deal jurisprudence that I hope we can dispense with. Placing the onus on the state to justify its laws would be an enormous leap forward, regardless of the fact that no one thought to require the state to justify sodomy laws in 1789.

  5. Barnett’s argument would be believable, had the Ninth Amendment been used more than once or twice in the last two hundred years, and if it had been mentioned at all in Lawrence v. Texas.

    Sadly for him, it didn’t even appear on the radar in that opinion.

    Geez, I wonder why he’s even making the argument? It don’t make no sense, as Chef on Southpark would say. It don’t make no sense.

    On the other hand, he has this new book about the Ninth Amendment he’d like to tell you about…

  6. Scalia is probably correct, and Barnett wrong. This Court historically has shown little interest in an expansive concept of liberty. Its curtailing of defendant’s rights and its own takings clause jurisprudence, along with upholding three strikes laws and disproportionate drug sentencing indicates exactly what it thinks about the role of the state relative to the individual.

    Instead of a libertarian golden age, it’s more likely that the Court will continue to scramble to find justification for the liberal, statist elite opinions of the moment.

  7. James:
    what’s the WAMM case?

  8. I am not sure that the Court’s jurisprudence on takings and procedural due process are necessarily inconsistent with the expanded concept of liberty in the article.

    Certainly, the reversal of the presumption that laws are Constitutional has a long way to go, but it is encouraging to see it emerging blinking into the sun after the long night of Rooseveltian jurisprudence. This presumption may or may not be too much for currently approved takings or due process laws to overcome; it is just too early to say.

    Even if the new presumption of liberty is confined to the protection of “victimless crimes”, that would be a huge leap forward. Let’s hope that the so-called conservatives on the Court realize that they have been enforcing New Deal era jurisprudence, and begin to reach further back for truly originalist, conservative principles to apply.

  9. Come on, the line about “enforcing New Deal era jurisprudence” is certainly a canard. Surely under any originalist interpretation, the Ninth Amendment never prohibited sodomy laws. After all, they were on the books long before, during, and after its adoptions. They were certainly not questioned at the time based on the Ninth Amendment. The article never addresses this key point, by simply ignoring the mass of historical evidence.

    If the SCOTUS does as Randy suggests, and uses the Ninth Amendment and “liberty” as its new one-size-fits-all vehicle to protect rights and liberties not anticipated at the time of adoption, then I sincerely doubt that the principles adopted will be consistently libertarian, despite best wishes.

    Randy is guilty of reading his own desires into the Constitution, not an unusual desire by any means. To claim that his interpretation is originalist is on its face absurd. Thus, we are left with him desiring a living Constitution, one whose definition of liberty shifts without amendments ever being adopted. However, rights and liberties can thus shift both ways, and protections you thought you had may suddenly disappear.

    Democracy and laws– so messy and inconvenient for people. “Stroke of the pen, law of the land”– that’s the way we want it.

  10. The odd thing is that Barnett, after attempting to answer Scalia’s dissent in Lawrence, ends by essentially conceding Scalia’s point. The reasoning in Lawrence can indeed lead quite logically to throwing out any legislation based primarily on moral disapproval — laws relating to drugs, prostitution, and many varieties of sexual conduct apart from homosexual acts. The basic difference is that Scalia thinks this would be a bad thing, and Barnett thinks it would be a good thing.

    Arguments can of course be made on behalf of many laws that have their basis in moral disapproval that they also serve some other purpose; laws against heroin use could be defended as needed to limit overdoses, laws against prostitution as necessary to defend against the spread of disease and so forth. In Barnett’s view, the proper place — the only place — for these defenses to be made is in the courts, which under his doctrine would be much busier passing on the constitutionality of legislation than they are now.

    Libertarianism enforced by the judiciary is an interesting concept. In Barnett’s view the key term in this concept is clearly “libertarianism”; critics of that view might see “enforced by the judiciary” as more important. For the Constitution, in addition to mentioning the word “liberty” a couple of times, devotes considerably more space to establishing the structure and powers of the national legislature, while explicitly confirming the authority of state legislatures — neither of which have in the last 200 years been constrained as Barnett seems to think they should be now as to the things they must not legislate about. American leftists have for more than a generation sought to advance their policy views by getting them ratified by a court, thereby bypassing an unsympathetic public. Barnett seems to approve of this practice, which may speak to a hostility to representative democracy on the part of some libertarians or simply to his recognition that specific libertarian principles won’t get anywhere if their advancement is entrusted to the democratic process.

  11. Jacob Dreyer asks me about the “WAMM Case.” This is County of Santa Cruz et. al. v. Ashcroft et. al., which includes the WoMen’s Alliance for Medical Marijuana (WAMM) as the actually aggrieved plantiffs. There are more details of the case at the link, but the key fact is that the DEA came into town one day and raided a well-known and long-established medical marijuana co-operative in Santa Cruz CA, confronting peaceful pot farmers and the sick and dying people they served with numbers, weaponry, and force. After all this, including seizure and destruction of the pot involved, the government didn’t even press charges.

    Although the “Liberty” ruling seems to speak mostly to conduct within one’s home, there is also a mention of the personal liberty that one retains out in public, as well. This gives me hope that the principles of the “Lawrence” ruling may be seen to apply to the WAMM case and even (as I have suggested in the “Passing Interference” thread) to such things as FCC’s role as gatekeeper of the broadcast airwaves. We’ll see.

  12. cool. thanks for telling me, i’ll have to follow that.

    btw given that the court has basically discarded the constitution in favor of public opinion chances that pot will be made legal there are slim to none.

  13. EMAIL:
    DATE: 01/26/2004 08:03:54
    Gratitude is the most exquisite form of courtesy.

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