Almost all constitutional analysts, as a matter of brute fact, seem committed to a de facto theory of “happy endings,” whereby one’s skills as a rhetorical manipulator … are devoted to achieving satisfying results.1
—SANFORD LEVINSON
THE WAY the Constitution has been interpreted over the past seventy years has meant that, with some exceptions,2 the Necessary and Proper Clause has no justiciable meaning, the Privileges or Immunities Clause has no justiciable meaning, the Ninth Amendment has no justiciable meaning, the Tenth Amendment has no justiciable meaning, the Commerce Clause has no justiciable meaning, and the unenumerated police power of the states has no limit. To this list could be added the Second Amendment3 and the Takings Clause of the Fifth Amendment4 as well. Can you see a pattern here? Do you not sense a systematic skewing of the Constitution? Can we abandon what the Constitution says and still claim credibly to follow it? How plausible is a constitutional construction like the presumption of constitutionality or Footnote Four that requires ignoring so much of the text?
Imagine holding up a copy of the Constitution and seeing empty holes in the parchment where these passages once appeared—or seeing ink blots over them. Courts should not cut holes in the Constitution. Judges should not put ink blots on the provisions they do not like. A Presumption of Liberty would respect all these discarded clauses in a way that current constitutional orthodoxy does not. The construction to be preferred is the one that takes the text of the Constitution seriously. On this score, the Presumption of Liberty is clearly preferable. Adopting it would enable us to restore the lost Constitution.
Of course, one must resist the temptation to read into the Constitution everything one might want it to say. As Sanford Levinson has repeatedly observed, there is a tendency among constitutional analysts to find “happy endings” to every constitutional controversy. Some may think I have done the same in the preceding chapters—that I have made the Constitution far more “libertarian” than it truly is. To the contrary, the approach I have advanced, and taken pains to justify with historical evidence, takes seriously all these clauses that are largely ignored today. One should also resist the temptation to read out of the Constitution what one does not want it to say.
Wishful construction cannot be justified by constitutional redaction. Indeed, the process of constitutional redaction has become so ingrained in orthodox constitutional opinion that some may allege that a Presumption of Liberty is merely a product of wishful thinking. This charge might have some merit had the Constitution never included the Necessary and Proper Clause, the Commerce Clause, the Ninth Amendment, the Privileges or Immunities Clause, and the Tenth Amendment. But the Constitution does include these provisions. Only a construction based on wishful thinking can produce a redaction of the Constitution that blots them all out—thereby severely undercutting the fundamental role of courts in protecting liberty and preserving the written limits on government power. Only a Presumption of Liberty can effectuate the judicial review of these textual limits.
Even with a Presumption of Liberty, a consistently originalist interpretation of the Constitution will inevitably result in unhappy endings for those who champion liberty. The Sixteenth Amendment authorizes Congress to place a tax on incomes, and many advocates of liberty think that taxation of this sort is theft. There are other defects as well. The popular election of the Senate undermined an important check on federal power that had previously been in the hands of state legislatures. The Takings Clause permits takings of private property for public use. Congress is given power to grant authors and inventors limited monopolies on their writings and inventions, which restricts the property rights of others. The original failure to impose term limits on Congress has led to an entrenched professional class of legislative rulers who are less sensitive to the liberties of the people than citizen legislators who would know they must return to the private sector in a few years. Indeed, there are some who would reject as illegitimate any constitution with all these features.
Those who practice constitutional redaction to reach results they find congenial should ask themselves why others who find an income tax deplorable must accept it as constitutionally authorized. For that matter, why should a racist judge accept the Equal Protection Clause or even the Fifteenth Amendment? The truth is that these issues are deemed beyond dispute because professed skeptics of originalism and textualism become good originalists or textualists with respect to the provisions they like. They would consider it beyond the pale for a judge to improve upon the Constitution by redacting the Sixteenth Amendment to reach allegedly better results. After all, stopping this sort of judicial abuse is what a written constitution is for.
One thing is certain. The original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court. Far from wishful thinking, this conclusion is compelled by the evidence of original meaning presented here. The rights “retained by the people” was demonstrably a reference to natural liberty rights, and the “privileges or immunities” of citizens included natural rights as well as rights created by the adoption of the Bill of Rights. The term “commerce” unquestionably meant trade or exchange and did not extend to such other vital economic activities as manufacturing or agriculture. The “judicial power” included the power of to nullify unconstitutional statutes. The Ninth Amendment mandates that unenumerated rights shall not be denied or disparaged. The Fourteenth Amendment mandates that privileges or immunities shall not be abridged and places serious textual limits on the exercise of the police power of states.
That those who fervently desire to expand the power of government must expunge all these passages is an objective indicator that the original meaning of these provisions is both determinate and inconvenient to them. How can so many central passages mean so little? We are not, after all, speaking of an irrelevant antiquity, such as the authorization for Letters of Marque and Reprisal.5 For some political agendas to advance, the heart of the Constitution must be excised and so it has been, clause by inconvenient clause, until the Constitution has been distorted and lost.
In the end, I would urge those who think the original Constitution, as amended, is too libertarian to frankly and openly oppose it like the Garrisonian abolitionists who declared the Constitution a “covenant with death and an agreement with hell” because it sanctioned chattel slavery. I would urge the same of those libertarians who conclude that the Constitution is, on balance, not good enough to provide assurances that the laws passed by Congress and enforced by the executive and judicial branches are binding in conscience. Candor where disagreement with the Constitution exists would help greatly to clarify the nature of the debate. Are we debating the meaning of the text, or how this meaning should be put into effect? Or are we rejecting the meaning of the text altogether? Lumping all these disagreements together under the rubric of “interpreting the Constitution” only leads all sides to talk past one another, as well as to confuse the public.
The temptation is great to try to perfect the Constitution by judicial construction that conflicts with and overrides its original meaning. “Amending” the Constitution by judicial decision, however—as has so passionately been advocated by Bruce Ackerman—not only changes its meaning for the better (or for the worse); it also weakens the power of a written constitution to impose the sorts of constitutional limits of which those doing the redaction approve. This is a serious and much neglected cost that compounds the injustice of granting to Congress an improper power. Only someone who does not believe in constitutional limits on power can safely ignore this danger. And such a person does not really believe in constitutionalism. Yet this danger is routinely ignored by those who should know better.
It is a tribute to the power of a written constitution—indeed, to the design of this particular Constitution—that all the judicial deviations from original meaning we have witnessed since the founding have not completely undercut the ability of the remaining provisions to protect our liberty. Nor have the unwritten judicial “amendments” foisted upon us completely undermined the promise of restoring the original meaning of the unrepealed text. All these lost passages may have been forgotten by the Supreme Court, but they are not gone. Had the founders not put their Constitution in writing, as did the framers of the Fourteenth Amendment, the arguments I have presented here would be impossible. For this they have my gratitude. So long as the courts profess fealty to the written Constitution under glass in Washington, the opportunity still exists to adopt a Presumption of Liberty and restore the lost Constitution.
1 Sanford Levinson, “Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons,” Law and Contemporary Problems 65 (2002): 11.
2 The Rehnquist Court has put content back into some of these provisions and been savaged for its efforts by academics. The same happened from a different direction when the Warren and Burger Courts began paying some serious attention to the Ninth Amendment, not to mention the requirements of the Fourth and Fifth Amendments in the sphere of criminal procedure.
3 The fact that this discarded provision contains an enumerated right that falls squarely within the framework of Footnote Four suggests a powerful ideological influence at work here. But see United States v. Emerson, 270 F.3d 203, (5th Cir. 2001) (finding on originalist grounds that the Second Amendment protects an individual right).
4 The Takings Clause is supposed to permit only takings of public property for public use and instead has been interpreted to permit takings for a public purpose, thereby gutting nearly completely a crucial limitation on this dangerous power. See Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985).
5 See U.S. Const., Art. I, § 8.