But the dark and bloody ground constitutional theory

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Mark Tushnet observes, “One of the most interesting phenomena in consti-tutional law is the way in which ideas move from being ‘off the wall’ (that is, basi-cally ‘crazy’) into being within the range of reasonable argument, and then into the mainstream.”1

I’ve noticed a similar phenomenon, in which theories that would have been out-of-bounds to people of one political persuasion rapidly become acceptable to them after a shift in the political winds. Surveying the political landscape after the 2004 elections, I noticed a sudden surge of interest in federalism among liberals, who – now that all three branches of the federal government are in the hands of Republicans – are suddenly appreciating the benefits of state and local autonomy.2 Meanwhile, Republicans who previously talked about small government are show-ing new signs of interest in using federal power as an engine of social change. I con-fidently predict that these changes in the public climate will soon manifest them-selves in the scholarly literature as well.

I. Kramer and The People

Larry Kramer’s The People Themselves takes a position that would have been anathema to mainstream legal scholars not long ago: That popular sovereignty means something, and that popular opinions regarding constitutional questions may, in fact, be as deserving of respect as the opinions of courts.

3 505 U.S. 144 (1992).

4 521 U.S. 898 (1997).

This said, however, I found Kramer’s book to be one of the most interest-ing, enjoyable, and informative works on constitutional law that I have read in quite some time, and I highly recommend it. The history that he recounts is under-appreciated and, I suspect, relevant to our own politically divided times. Kramer’s writing style is delightful, and his insights are keen.

II. Barnett and the Courts

6 U.S. CONST. amend. IX. (emphasis added).

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Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, Princeton University Press, 2004. Pp. 357.

2 Given the emphasis that he places on the Ninth Amendment, as well as his commitment to originalism generally, I find it curious that Barnett nowhere mentions this speech, which was arguably the single most important statement rendered by any Federalist in 1787–88. It was given early in the ratification campaign and could be deemed authoritative because Wilson was both known to have been a leading member of the Federal Convention and was widely recognized as the leading Federalist in Pennsyl-vania. Texts of the speech are widely reprinted in standard historical collections. See, e.g., 1 BERNARD BAILYN, THE DEBATE ON THE CONSTITUTION 63-69 (1993); 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 167-69 (Merrill Jensen et al. eds., 1976). Given the amount of editorial labor that reputable historians have devoted over the past half century to providing authoritative collections of the documents from the Revolutionary era, it would behoove legal scholars—especially those committed to the projects of originalism and textualism—to take advantage of their labors and not rely on such older

The exceptions here or elsewhere in the constitution, made in favor of par-ticular rights, shall not be so construed as to diminish the just importance of other rights, retained by the people, or as to enlarge the powers dele-gated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution (p. 237).

But perhaps the difficulty Madison encountered in struggling for concision betrays a deeper tension in his thinking. One of the great concerns driving this in-tensely creative moment in his political thinking was the belief that the protection of rights was first and foremost a matter of cabining legislative power. One way to do that—the mode adopted in Article I, Section 8 of the Constitution—was to think of legislative power not as a plenary authority, but as an aggregate of specific dele-gated powers. But Madison doubted that any such enumeration would work. With the presumed weight of popular opinion behind it, and its very rule-making au-thority to exploit, any representative assembly worth its salt could deploy an “in-finitude of legislative expedients” to secure its aims.3 It might, for example, convert the Necessary and Proper Clause from a reasonable authority to act in the textual interstices into a virtual grant of substantive power, or adopt so expansive a defini-tion of the Commerce Clause as to enable it to claim a general power to supervise an entire national economy. Madison accordingly worried that the attempt to limit legislative power by enumeration might well prove delusory. But an enumeration of rights could easily prove limiting in a way that the enumeration of legislative powers would not. Hence, it was all the more necessary to adopt something like the

Ninth Amendment as an antidote to the dangers that open-textured language like the Necessary and Proper or Commerce clauses might embody.

As it happens, analysis of the constitutional provisions just cited form three main legs of the textual and historical justifications on which Barnett rests his Pre-sumption of Liberty principle, “which places the burden on the government to es-tablish the necessity and propriety of any infringement on individual freedom” (pp. 259–60). The fourth leg is the Privileges or Immunities Clause of the Fourteenth Amendment. The Presumption of Liberty stands in normative opposition to the dominant rational-basis standard of constitutional review that took effect (in the realm of Commerce Clause jurisprudence) after the “switch in time that saved nine” in 1937 received definitive form in Footnote Four of Carolene Products. Along with the Argonauts of the Constitution-in-Exile school of critical constitutional studies, Barnett shares the conviction that rational basis is fundamentally irrational when it comes to defining the role courts should play in evaluating economic legis-lation.

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with or extended to include fundamental natural rights; (2) that Madison and Jef-ferson similarly got the basic constitutional story right when they opposed Hamil-ton’s plan for a national bank with the claim that necessity and propriety were to be construed strictly and robustly, and not as mere synonyms for convenient and use-ful; (3) that the framers and adopters of the Fourteenth Amendment would have accorded a similar breadth and latitude to the Privileges or Immunities Clause, so that it effectually compounded and reinforced the original (if now lost) meaning of the Ninth Amendment; (4) that the much-lamented Lochner decision of 1905, the bete noire of so much Progressive and pro-New Deal scholarship, was in fact a rea-sonable decision, and one that affords a useful way to identify economic regula-tions that fail to meet a bona-fide test of necessity and propriety while also infring-ing the modern equivalent of a natural right (in this case, to labor); (5) that the spec-ter of judicial activism, that meaningless buzzword that so permeates the political discourse of contemporary constitutionalism, is no specter at all, but exactly what we need to enforce the Presumption of Liberty; and (6) that the police power of the state (or more precisely, the states), far from embracing an expansive authority to legislate broadly in pursuit of the public weal, should be similarly construed to place “the protection of individual rights” at its “core” (p. 333).5

7 Nor can I forbear objecting strongly to the casual remark Barnett offers about the Second Amendment, another of his passions and one of my own originalist sidelines. Barnett invokes this one realm of consti-tutional forensics (which I regard as something of a Twilight Zone of scholarship) to illustrate his claim that “compelling analyses of the original meaning of even the most controversial provisions of the Con-stitution have been developed, from those where the evidence of original meaning is overwhelming—the Second Amendment, for example . . . .” (pp. 114–15). The authority for this claim is given as an article by Barnett and Don Kates (whom no one would ever mistake for a dispassionate scholar). See generally Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139 (1996). That purported, self-proclaimed consensus has since been challenged by a number of repu-table scholars, myself included, who contributed to the symposium on the Second Amendment pub-

lished by the Chicago-Kent Law Review in 2000. See Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV. 103, 103–66 (2000) (revised and reprinted in THE SECOND AMENDMENT IN LAW AND HISTORY 74–116 (Carl T. Bogus ed., 2001). As Barnett also knows, because we subsequently conducted a lengthy exchange on this issue on the H-Law listserv, I am still waiting for someone to refute my own review of this evidence.

In my own view, many of the writings that comprise Barnett and Kates’s “new consensus” are replete with simple errors of fact, selective quotations, and highly questionable assumptions. None of this is meant to excuse Michael Bellesiles for committing the same—and worse—sins in his discredited book. Cf. MICHAEL A. BELLESILES, ARMING AMERICA: THE ORIGINS OF A NATIONAL GUN CULTURE (2003). My point is simply that this is one area of scholarship that intellectual honesty should prohibit anyone from describing in the terms Barnett uses here.

postal workers to be secure from assault by arms-bearing disgruntled co-workers).10

What can be disputed is whether any avowedly originalist approach to the problem of discovering a principle whereby such unenumerated fundamental rights could be ascertained can ever reach a persuasive conclusion. And this doubt re-mains whether one follows the public-meaning approach to originalism favored by Barnett or the vacuum-cleaner, canvass-all-the-sources (making allowances for re-spective strengths and weaknesses) approach that I have propounded elsewhere.11 Because our modern constitutional culture is so deeply invested in the interpreta-tion of the first ten amendments as well as Section One of the Fourteenth, it also displays a penchant to presuppose that their framers were equally alert and thoughtful about their composition of each of the relevant clauses. That proposition may be true in particular cases, and consequential purposes can indeed be assigned to editorial changes made during the process of drafting. Barnett emphasizes the salience to our understanding of Roger Sherman’s draft bill of rights, which in-cluded the statement: “The people have certain natural rights which are retained by them when they enter into society” (pp. 243, 246–47). Given Sherman’s membership on the committee to which the House of Representatives assigned Madison’s reso-lutions, his agency in convincing the House to replace Madison’s scheme of placing or interweaving individual amendments in the most relevant sections of the Consti-tution with their appearance as separate posterior articles, and the recurrence of “retained” in the final version, his wording and ostensible purposes certainly de-serve notice.

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In his modern concern for the protection of individual rights, Madison may also have been exceptional. There was, in fact, a strong libertarian element in his thinking, to be found, for example, in his complaints about the “multiplicity,” “mu-tability,” and lurking “injustice” of the legislation the states had been busily adopt-ing since 1776,16 as well as the deep and formative importance he ascribed to rights of conscience, the first passion of his young political life. But the Constitution was not written and ratified to make the protection of rights—natural, constitutional, or civil—the first priority of government. Any government that systematically jeop-ardized rights would, of course, be antithetical to basic principles of republican government. But the real business of 1787 and 1789 was to empower government, not weaken it; to make it capable of action; to undertake a program of state-building that would ensure the survival of a national republic in a dangerous world.17 Madison certainly supported that project, but with a concern for rights and liberties that may have set him apart, to some degree, from many of his coadjutors. In that state-building project, anxious anguish about the misuse of the Necessary and Proper Clause was the anomaly, not the rule.