Jonathan Rowe, this month's guest blogger on Tim Sandefur's Freespace Blog, is in the middle of reading Randy Barnett's Restoring the Lost Constitution, and he's blogging about it. I have not read the book yet, but Barnett is probably my favorite constitutional scholar. The other day I mentioned the absurdity of the Boston Globe putting Barnett and Bork together in the category of those who advocate "original intent", and Rowe's post shows some of the reasons why it's so ridiculous. For instance,
Three, one of the most powerful arguments against a Bill of Rights at the time of the American Founding was that the Founders were fearful that someone might interpret its inclusion exactly as Robert Bork does: that once a list is enumerated, those are the only rights that the people have against the state, all others are surrendered to the government.
Four, thatagain contra Robert Borkneither the 9th Amendment, nor the privileges and immunities clause of the 14th Amendment are either dead letters or essentially incomprehensible, thus voidthat the Framers intended both of these provisions to be used to secure unenumerated natural rights or liberty rights. To guard against the very reasonable fear mentioned above, Madison proposed the 9th Amendment.
Read the whole thing, and read Barnett's book as well. I think he is dead on in his position that the constitution establishes a presumption of liberty that requires the government to justify any limitations placed upon the individual.