I recently finished reading a brilliant book that’s greatly affected my thinking about constitutional theory: Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett. Here’s a summary of the book. Barnett, a law professor at Boston University, is a libertarian and a believer in an originalist interpretation of the Constitution. Because there is no true way for 100 percent of the population to consent to the Constitution, Barnett believes there should be a “presumption of liberty” – people have the right to be left alone unless it’s really necessary for them not to be. He states that the courts have wrongly eviscerated the Ninth Amendment – which protects unenumerated rights from the federal government – and the Privileges or Immunities clause of the Fourteenth Amendment – which he contends protects unenumerated rights from the state governments. These unenumerated rights are a subset of natural rights, which philosophers like John Locke said are the rights we hold merely because we are human beings, even before government comes into existence.
He disagrees with the Supreme Court’s creation of the doctrine of “fundamental rights,” or rights that deserve greater protection than others. Rights are rights, Barnett says, and there should be a presumption in favor of all of them. One thing I really like about this book is how Barnett criticizes many Supreme Court doctrines, such as the doctrine of fundamental rights and the doctrine of the various levels of scrutiny used in equal protection analysis. These doctrines are nowhere to be found in the constitution and don’t always make sense. (While I’m on this, I’d really like to find out more about the original meaning of the Fourteenth Amendment’s equal protection clause. Was it meant to apply exclusively to racial classifications? And does “equal protection of the laws” really mean what we say it means today?)
Barnett’s reason for being an originalist is very persuasive. Unlike many ideologues, such as Bork and Scalia, he’s not a results-oriented originalist. He believes in originalism because he believes in the importance of a written constitution. He says that if you believe in a “living constitution,” what you’re really saying is that you believe the constitution is flawed and needs to be changed. He finds nothing inherently wrong with this position, but he says that its proponents should acknowledge it so that there can be an honest debate. There is a valid way to change the constitution, of course: via the amendment process.
The only problem I have with this theory is that I’m not sure how much it protects equal rights for minorities. Barnett barely discusses equality in his book. Constitutional amendments require the support of supermajorities, and majorities are not usually concerned about granting equal rights to minorities. James Madison himself was concerned about oppression by a majority as well as by a minority.
Specifically, of course, I’m most interested in how Barnett’s theory applies to gay rights. Barnett supports the outcome of Lawrence v. Texas, stating that Justice Kennedy properly grounded his opinion in the right to liberty rather than the iffier right to privacy. (The article linked in the previous sentence is a great introduction to Barnett’s thought, actually.) But Barnett doesn’t discuss same-sex marriage in his book, and I can’t find anything online about whether he thinks same-sex marriage bans are constitutional.
Is marriage a natural right? A liberty? Technically it’s a government benefit. Libertarians probably believe there should be no marriage at all. I’m not a libertarian and I disagree. At any rate, you can argue that although the government is not required to allow marriage, because it does allow it, it should do so on an equal basis. But is that necessarily a justiciable court claim? Hard to say.
I would much prefer that same-sex marriage be permitted by legislatures instead of by courts. I think litigation is a last resort.
What do you do when something is right, but the legislature won’t allow it? That’s the question.