Timothy Sandefur has published a review of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty. The review is called The Normality of Freedom, and that is a good title. While he has some criticisms of what the book lacks, I think he captures the essence of the importance of Barnett's views here:
[T]he presumption of liberty, he writes, flows necessarily from the existence of inalienable rights. If rights preexist the state, then the government must always bear the burden of proving the necessity of its acts which limit or abridge those rights; if the government may shift that burden onto the citizen, then the citizen's rights are really just permissions--special exceptions from the general rule--and hence far less secure.
The textual keystone in his argument is the Ninth Amendment, which declares that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"--in other words, that the list of rights in the Bill of Rights is not exhaustive. The existence of "other rights" makes sense only if we presume that individuals have the right to do what they please until proven otherwise. Although conservatives have attempted to avoid this argument by claiming ignorance of the true meaning of the Ninth Amendment--Robert Bork famously likened it to a mere "inkblot" on the Constitution--Barnett convincingly shows that the Amendment was written to avoid the presumption that people have only those rights that are specified.
Quite right. That is why it is so important to shift the terms of the debate. When conservatives ask "where in the constitution does it grant such a right?" we must demand to know where in the constitution it grants to government the authority to violate it. Because, as Barnett convincingly argues, if inalienable rights are to have any meaning at all, then the presumption must always be in favor of liberty and the burden of proof always on the government which seeks control. And this is the touchstone of Barnett's version of originalism, and the background of the argument that conservative versions of originalism, by reading the 9th amendment out of the text and rendering it meaningless, are in fact not originalist at all. You cannot be an originalist while reading one of the most important provisions in the original text as meaning nothing, and especially not for reading it to mean the opposite of what it says.
Thank you for helping a non-lawyerly person get a handle on these explanations..it can be pretty frustrating trying to make sense of the arguments surrounding being a Textualist or an Originalist!
And with the focus on our Judiciary today, it is important to at least try and understand the different arguments.
The premise of the clearly understood nature of inalienable rights seems to open the door for some of those brethren on the ridiculous right. I sat in a lecture w/ Robert Miller, law professor from Lewis and Clark in Portland Oregon. During his overview of the "history" of the orders of discovery(his main point of discussion) he used the concept of the understanding of inalienable rights among the colonists as the premise for saying that the US was founded upon Christian values. Many on the right take Jefferson's edited phrase from the Declaration "endowed by their Creator(originally "endowed by creation") to demonstrate that he was establishing these rights as being given to humans only by God. Since the "humans" to whom they were given, were white europeans(how that construct exists is a huge weakness in their argument) then these rights were not given to indigenous native peoples.