Copyright © by Barnabas D. Johnson

Randy E. Barnett's book, Restoring the Lost Constitution: The Presumption of Liberty (2004) is superb, albeit complex. Basically, he says the current jurisprudence supporting the "presumption of constitutionality" of legislation, etc., should be replaced with a "presumption of liberty" requiring all governments, federal and state, to carry the burden of showing that their laws and other activities are both necessary (truly necessary) and proper (within constitutional restraints). Barnett looks to the "original meaning" of the Constitution to determine the meanings of concepts like necessary, proper, public use, interstate commerce, etc. I have followed this subject for decades, and give Professor Barnett high marks for his historical research, etc.


Yet I cringe from accepting his conclusions. First, see my essay Ordered Liberty for a discussion of several competing presumptions undergirding constitutional interpretation; for example, Supreme Court Justice Stephen Breyer's excellent little book, Active Liberty (2005), suggests that "democracy" and "liberty" are equally-crucial presumptions and obviously majority or coalition rule often conflicts with minority or individual rights, liberties, privileges, and immunities (they all amount to essentially the same thing, see Note on Privileges and Immunities). Even liberties collide; the rights of parents to freely exercise their religion in matters of education, dress, and marriage, etc., might collide with their children's rights to be educated or dressed or married according to values that collide with their parents' religion. Balancing and harmonizing fundamental yet competing rights composes one of the hardest, most creative challenges facing our emerging global civilization.

Second, and perhaps the single most devastating argument regarding Original Meaning jurisprudence, is this:


The Congress that promulgated the Fourteenth Amendment of the U.S. Constitution, adopted in 1868, also enacted legislation creating racially segregated schools in the District of Columbia. So we must surmise that this Amendment's clause guaranteeing "equal protection of the laws" was not intended by its authors to mean that segregated schools are unconstitutional. Yet it is that very Clause which undergirded Brown v. Board of Education, 347 U.S. 483 (1954), in which the Supreme Court outlawed segregated schools. The Court did not interpret the Equal Protection Clause according to what we must conclude was the "original meaning" it had when adopted in 1868.

Was the Court wrong to view Equal Protection as a fundamental constitutional value whose "details of application" necessarily evolve coevolve with law-based, democratic societies? Or is Justice Antonin Scalia right in rudely excoriating the concept of a "living constitution" as he does? I think he is wrong and, worse, astonishingly unwise.



Justice Scalia is unwise because the United States could not go on, decade after decade, into the 60s and 70s and 80s and 90s, etc., with racially segregated schools! That had to stop! Everything that America stands for required this result! Yet the "original meaning" of the 14th Amendment did not require or allow that result, unless the Founders "meant" for our Constitution to build upon its core values, to coevolve with us based on our emerging understanding of constitutional democracy as a learning organism based on feedback cultivation and harvesting: a "cybernetic" or self-correcting "government" … for these two words have the same root. The ancient Greek kubernetes or helmsman had to integrate knowledge of the changeless stars and naturally-changing winds and waves in order to choose and act regarding the "humanly changeable" angle of the rudder and trim of the sails. Feedback was crucial to this endeavor, as it must be in all "governance" worthy of this word. See Cybernetics.  


Justice Scalia and other "original meaning" purists assert that America should have "done it right" and passed a constitutional amendment outlawing segregated schools and (while we were at it) perhaps adding to the enumerated powers of Congress by allowing it to address what the Interstate Commerce Clause did not originally allow: federal laws addressing urgent nationwide problems that (history has demonstrated) cannot be addressed on a state-by-state basis problems involving racial and gender discrimination in employment and public accommodations, for example, or fraudulent advertising, harmful pharmaceuticals, unsafe manufacturing, dangerous working conditions, the proliferation of high-powered modern weapons that could not have been anticipated when the Second Amendment was adopted, and corporate scams that are "legal" because powerful private interests routinely reward lawmakers for legalizing unconscionable conduct, etc.

There are at least two problems with Scalia's insistence that the Constitution's "original meaning" can only be altered by formal constitutional amendments. First, anyone who knows anything about the United States in the 1950s knows that it would have been impossible to secure a formal constitutional amendment outlawing segregated schools. Would it have been possible in the 1960s? I doubt it. Whether the 60s riots would have led to a change of heart favorable to such an amendment is doubtful. To have relied on the "formal amendment process" might have converted the U.S. Constitution into a mutual suicide pact. The Supreme Court in 1954 probably saved America from its worst self, allowing the "better angels" of our deepest commitments liberty and justice to rule us.

Second, I tremble to think what might have resulted if we had opened the Pandora's box of broad textual revisions that would be necessary (for example) to properly address the above-referenced problems (private employment discrimination, corporate scams, etc.) that are currently addressed by our admittedly-stretched Commerce Clause jurisprudence. Not only would an amendment outlawing segregated schools have failed in, say, 1960, but lamentable amendments might have succeed such as amendments significantly impairing First Amendment freedoms of inquiry, belief, expression, and association, or amendments repealing the unenumerated rights to be judged innocent unless proven guilty beyond a reasonable doubt in a trial before an impartial judge where the prosecution carries the burden of proof and in which the defendant does not have to prove innocence. The present Constitution is silent as to these italicized rights, as it is also silent on whether the right to privacy (for example, the right of married couples to use contraceptives) is part of that "liberty" which is guaranteed in the Fifth and Fourteenth Amendments and is highlighted in the Constitution's Preamble.

That right to privacy was established by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965); many criticize the Court for going beyond the "original meaning" of the Constitution, asserting that nowhere is any "right to privacy" mentioned; true, but … what about the "unenumerated rights" guaranteed in the Ninth Amendment?

Above, I referenced the First Amendment's guarantee of the freedom of association; the Constitution does not mention that right. It does not mention that you and I and a few others may freely gather to discuss these constitutional questions. Does that mean we do not have this right?

What is the "original meaning" of a Constitution adopted by people who understood that the "true meanings" of liberty, justice, the Due Process of Law, the Equal Protection of the Laws, and countless "unenumerated" rights, privileges, and immunities, etc., are dynamic?


Justice Scalia and other "origionalists" are not merely unwise, they are dead wrong in rejecting the concept of an "organic constitution" in at least this crucial respect:

Those who drafted the original 1787 Constitution (adopted by ratification of the states in 1789), the Bill of Rights (the first ten amendments, adopted during 1789-91), and the Fourteenth Amendment (adopted 1866-68), understood that concepts like "Due Process of Law" and "Equal Protection of the Laws" have a long history; they appreciated that these phrases came to them as part of their evolving "common law" inheritance, as a jurisprudence that had been accumulating case-by-case over centuries; and they did not presume that this evolutionary process had ended. True, the meaning of the word "evolution" has evolved since 1787, or 1868 (or even, arguably, 1968), but the key idea of the principled development of the common law is far older than the the U.S. Constitution. While the term "common law" is referenced in the Seventh Amendment, it is clear that the original Constitution adopted and incorporated the common law in a much less restrictive sense than there mentioned. In short, the "original meaning" of the Constitution included the foundational premises that (a) the Constitution is law, (b) the law evolves according to evolving rules of case-by-case growth, and (c) the meanings of concepts like Due Process of Law must be able to continue evolving so as to advance the blessings of Liberty, Justice, Democracy.


The concept of "equal justice under the law" originated in ancient Greece 2,500 years ago (see Isonomia, and discussion below); it became part of the evolving jurisprudence on "Due Process of Law" many centuries ago; and the latter concept, perhaps the most fundamental in all law-based governance, is nothing except what it has evolved to become, through case-by-case growth.

Thus, when the Founders ordained "Due Process of Law" they did not ordain a freeze-action snapshot of what it was in 1787-91; they ordained something they understood to be organic, evolving, part of the living law by which civilization has carried forward the evolving work of civilization: securing liberty, accountable governance, and the Rule of Law based on the Rule of Reason: a special kind of reasoning that goes far beyond static logic.

This dynamic "legal reasoning" is rooted in the origins of the Western Legal Tradition, which arguably was the exemplar for "the Advancement of Learning" — a phrase championed by Francis Bacon (1561-1626), a common-law lawyer who was Attorney General and, later, Chief Chancellor of England (chief judge of a major court).

Bacon generalized from "law" (as he knew it) to "science" (as he conceived it); the key idea here was that science, like law, is not static. Bacon in essence "invented" the scientific method, championing experience-based indeed, experiment-based improvements or "advancements" of global "Learning": what today we call the Ecology of Mind.

The Conversation of Democracy is rooted in that same Ecology of Mind.

Constitutional democracy is a product of "liberty" and "law" coevolving, and it is presumptuous absurdity to take a snapshot of "liberty" or "law" as of 1787, or 1868, and then freeze out all further evolution!

Now, Bacon was a flawed man; I tend to prefer his famous rival, Chief Justice Edward Coke (1554-1634), whose contributions to the foundations of U.S. constitutional jurisprudence (including the fact that the U.S. Supreme Court can nullify unconstitutional legislation) remain of greatest significance.


The 1954 Supreme Court of the United States saved America's soul by recognizing core values in the 14th Amendment which (a) fundamentally amended the Original Plan of the 1787 Founders and (b) required the Court to ordain what in 1868 few politicians could proclaim: Racially segregated schools distort, indeed destroy, the essence of America's core-value commitment to equal justice and democratic accountability. But the Supreme Court accomplished this by accepting the key fact that the Founders intended terms like "Equal Protection of the Laws" to undergird a living constitution.

The ancient Greek lawgiver Solon (c. 638-558 B.C.) started humanity along this road, ordaining _isonomia_ iso = equal; nomos = law as the essential foundation of liberty and democracy: If we are to be equal in our liberties we must be equal in the restrictions on our liberties and equal in the making of those restrictions, etc. See Isonomia.


There is no doubt that we should pay close heed to the "original meaning" of the Constitution, including the ways in which later amendments like the Fourteenth Amendment changed — and should continue to change — the Original Plan of 1787-91.

I submit that a most significant constitutional guarantee is the Article IV, Section 4 guarantee of a "republican form of government" to each state; by necessary implication, it seems, the U.S. Supreme Court has to stop its hands-off approach to the debasement of a republican form of government at the federal level.

For example, it has to stop its hands-off approach to the corrupting politicization of congressional redistricting.

See Note on Redistricting.

To be continued.


Note on Privileges and Immunities:

The concept "privileges and immunities" encompasses all fundamental rights. The nature and scope of those fundamental rights is a huge subject. In the United States, this subject necessarily involves examining (a) what it means to have a government of limited, enumerated powers in which the people are principals and their government(s) are, in effect, their agents, and (b) how to enforce — under the Constitution, the supreme law of the land — those unenumerated as well as enumerated rights, privileges, immunities, and related blessings of liberty which the people form their government to secure.

As suggested, those unenumerated rights, etc., are arguably too numerous to catalogue; some of them are so fundamental they "go without saying" (such as the presumption of innocence or the right to be let go unless found guilty "beyond a reasonable doubt"); these rights are the focus of the Ninth Amendment of the U.S. Constitution, which ordains: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

These rights, etc., have coevolved with free governments.


The ultimate question must always remain: What gives governmental limitations on liberty their "binding quality" so that we, and our governments, are required — are conscience bound — to obey the law? "I]f the term 'law' is to carry the moral implication that there is a duty to obey, then the requisite binding quality must go in before the name 'law' goes on," according to Professor Randy E. Barnett, in his book Restoring the Lost Constitution: The Presumption of Liberty (2004), p. 12.

I believe that the answer has to do with the reciprocity of obligations and rights. They are two sides of the same coin, whose realm is a mutual undertaking: the Rule of Law based on the Rule of Reason. Ordered Liberty coevolves with both, and dies in their absence.


John Sherman, Senator from Ohio, provided a good summary of this subject in 1872: "[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights … of citizens of the United States, such as are recognized by the common law, such as are engrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered."

In determining the nature and scope of these fundamental rights, privileges, and immunities, said Sherman, the courts "will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers [see next Note], to the Declaration of Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of [British judges] Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens." Barnett, Restoring, at p. 67. (Go Back)

Note on Unenumerated Rights: Sherman should have used "rights" (above) instead of "powers"; perhaps. Except that it makes no difference if one accepts the "agency theory of government" in which individuals have unenumerated powers, and hence rights, and they delegate some of their powers (the "enumerated powers") to a limited government.

That government governs best which governs least … by institutionalizing self-governance and accountability under the Rule of Law governed by the Rule of Reason. (Go Back)

Note on Redistricting: An increasingly calamitous failure of the U.S. polity is that the Supreme Court has too often taken a hands-off approach to rampant politicization of the process by which congressional districts are drawn, thereby guaranteeing that almost all members of Congress will be re-elected by "healthy" margins which, in fact, are symptoms of deep sickness. This sickness debases political debate and public-policy formulation; indeed, the "better argument" is far too often trumped by deceptive (including self-deceptive) spin-hucksters. The system of checks and balances among the legislative, executive, and judicial powers — the basic DNA of constitutional democracy and republican governance — is sickened. The idea of law-based, reasoning-sustained democracy is dumbed down, weakening the cause of accountable governance worldwide. (Go back)

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