According to Randy Barnett in Restoring the Lost Constitution, “the original meaning of the entire Constitution … is much more libertarian than the one selectively enforced by the Supreme Court” (p. 356). This is because, Barnett argues, the way that the Constitution has been interpreted by the Court over the past seventy years, that is, from the beginning of the New Deal on, has eviscerated a number of clauses and amendments that were expressly designed to limit the power of both federal and state government to interfere with the basic liberties or “natural rights” retained by the people. His ambitious goal is to restore these amendments and clauses to their original meaning through an exhaustive exploration of that meaning.

To this end, Barnett employs a principle of constitutional interpretation he characterizes as “original meaning” originalism, as opposed to “original intent” originalism: Whereas the latter attempts to ascertain the subjective intentions of the lawmakers and ratifiers—something he acknowledges to be impossible—the former seeks “the objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment” (p. 92). Barnett ties the importance of such originalism to the function of the Constitution itself: The Constitution was designed to grant and limit powers in such a way that those who governed could not usurp their rightful authority. How can governors, including judges, be constrained by “higher law” (i.e., the Constitution) if the Constitution means whatever they want it to mean?

Armed with these interpretive tools, Barnett seeks to recover the lost “libertarian” Constitution by making two complementary arguments: that the power of government is far more limited by the Constitution than is now acknowledged by the Court; and that the Constitution means what it says when it mentions “unenumerated” rights retained by the people. In support of the former proposition, he argues that the Necessary and Proper Clause of Article I, section 8, of the Constitution giving Congress the power “To make all laws which shall be necessary to carry into Execution the foregoing [enumerated] Powers” was not intended as a freestanding grant of power, but extended only to those powers specifically enumerated in the Constitution and was intended to limit the means by which those enumerated power could be exercised. He argues for a similarly restrictive reading of the Commerce Clause: The Commerce Clause allows Congress to regulate commerce, that is, trade, not manufacturing or agriculture, and only insofar as such trade is genuinely between states and not intrastate.

In support of the latter proposition (i.e., unenumerated rights) Barnett begins by attempting to resuscitate the Ninth Amendment, long considered a constitutional dead letter. As he notes, the origin of the Ninth Amendment related to original objections to including a Bill of Rights in the Constitution: Such a list of rights retained by the people would be unnecessary since the authority to interfere with such rights was never given to the government in the first place; and such a list would be dangerous inasmuch as it would give the appearance of being exhaustive and imply that all rights not enumerated could be infringed by the government. It was primarily to guard against the latter danger that the Ninth Amendment was included by Madison in the Constitution. As Barnett shows by canvassing much contemporaneous material, these rights “reserved to the people” were generally held to be natural liberty rights, and he argues that it was the intention of the framers of the Fourteenth Amendment to protect not only the Bill of Rights from infringement by the states but also these unenumerated liberty rights as well.

On the basis of this narrow reading of the mandate of governmental powers and this expansive reading of the rights and liberties retained by the people, Barnett proposes a method of constitutional review he terms the “presumptions of liberty.” As things now stand, he notes, the Court has adopted a very loose conception of “necessity” and presumes that all acts of the legislature are valid except when they infringe upon an enumerated right listed in the Bill of Rights, or some other limited number of rights that the Court has held to be “fundamental” (such as the right to privacy). By contrast, a presumption of liberty would place the burden on the government to show why any interference with liberty is both necessary and proper since, Barnett argues, “the Constitution makes no distinction between fundamental rights and mere liberty interests” (p. 260). And for this reason, he lauds Justice Anthony Kennedy's recent opinion in Lawrence v. Texas (2003) striking down a Texas antisodomy statute, for protecting “liberty” rather than “privacy” or any other “fundamental” right.

But will Barnett's originalism sanction the libertarianism (both social and economic) that he embraces? As he notes, all of the sources he cites distinguished liberty from an unbounded freedom called “license”; but to many, if not all of the people of this period, license clearly denoted something more than the freedom to violate the rights of others: License meant not simply rights-violating actions (as Barnett implies)—it meant immoral actions, where immoral encompassed much more than “rights-violating.” This poses a problem for the author, who as a thoroughgoing libertarian is fundamentally opposed to “legislating morality.”

Consider, as just one example, early views of the First Amendment's guarantee of freedom of speech and press. The congressional report on the repeal of the Sedition Act in 1799 stated that seditious libel did not constitute an abridgement of freedom of speech and press because those freedoms never included “a license for every man to publish what he pleases without being liable to punishment.” Joseph Story did not doubt that the states could punish individuals for libelous and “other mischievous publications”; Thomas Cooley did not believe that the First Amendment extended to publications that “from their blasphemy, obscenity, or scandalous character, may be a public offense.” To be sure, Madison opposed the Alien and Sedition Act—and Madison is, understandably, Barnett's champion in this book. But Madison's proposal expressly to prohibit the states from limiting freedom of the press and speech did not survive, and his views on free speech were not predominant. Rather, it was Blackstone's view that held sway from the founding to the late nineteenth century: While liberty of speech and press meant the absence of prior restraint, it did not preclude subsequent punishment for speech that was deemed “improper, mischievous, and illegal.” And since I have mentioned Blackstone, let us not forget, as the Court reminded us in Bowers v. Hardwick (1986), which upheld the constitutionality of Georgia's antisodomy statute (and was subsequently overruled in Lawrence), that Blackstone described homosexuality as “the infamous crime against nature,” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” I am not defending this view. What I am pointing out is that Barnett's “original meaning” originalism, which places such an overriding emphasis upon the contemporaneous understanding of words such as “liberty” and “license,” may be in profound tension with his libertarianism.

This said, this is a compelling work of original scholarship, combining great analytical acuity with exhaustive historical analysis. It represents one of the most compelling libertarian readings of the Constitution to date and is a welcome addition to a never-ending debate.

In Libertarianism Without Equality, Michael Otsuka seeks to combine a libertarian principle of the right of self-ownership with a robust commitment to egalitarianism. He does this in two ways: First, he argues, against Robert Nozick, that all schemes of redistributive taxation are not on a par with forced labor. Something like a “luxury income tax” for redistributive purposes, Otsuka argues, cannot be considered as equivalent to forced labor since it is easy to avoid; that is, persons can forgo the extra income that amounts to a “luxury.” Second, he denies that one's right of ownership over worldly resources that one uses for income is as full as one's right of ownership over oneself: Persons can acquire unowned worldly resources only if they leave enough so that everyone else can acquire an equally advantageous share of unowned resources, where “equally” advantageous means that one can derive the same degree of welfare from it. Furthermore, he claims that persons possess only a “lifetime leasehold” on worldly resources, which lapse into a state of nonownership upon death. To this, a libertarian might object that “leaseholding” is not really ownership.

Otsuka then revisits Hume's famous complaint against Locke's concept of “tacit consent”: If it is very difficult or costly (or impossible) to withhold what constitutes tacit consent, then such consent cannot be voluntary. The solution, according to Otsuka, is “a pluralistic confederation of political societies on the small scale of autonomous cities, towns and regions” (p. 105). This would facilitate ease of selection among various political arrangements and help to ensure that residence really did imply consent to the political authorities of a given regime.

According to Otsuka, this “pluralistic confederation” would be truly pluralistic: It would include illiberal and inegalitarian societies, and in his willingness to accept such illiberal political societies, he styles himself a “left-libertarian voluntarist.” Such societies could be legitimate as long as they were truly voluntary. So, a quasi-feudal political unit (town, region) might arise when each individual entered into a prior agreement “to entrust the collective's powers of legislation and punishment to the owner of the island and to appoint him sovereign for life” (p. 117). Or like-minded individuals might form a puritanical city. To ensure that such a political arrangement is truly voluntary for all members, “parents may not indoctrinate their children into their preferred way of life.” Children must “develop the skills, capacity, and knowledge which would enable them to flourish in a range of the political societies on offer” (p. 120).

What range of political societies? Feudal and puritanical societies as well as those dedicated to free love and drug experimentation? Who determines the content of the education? The “confederation”? And could not member “political societies” claim that they are not politically autonomous at all inasmuch as they cannot educate their children into their preferred way of life but must have their educational policies dictated by an outside agency? And are they really illiberal political societies if they must give their children a liberal education? Furthermore, will illiberal political societies be allowed (by the “federation”?) to persecute heretics? Brand disrespectful serfs? Or will they merely “play” at being feudal or puritan societies while deprived of any real coercive political power, like a theme park, where one can enjoy all of the fun of a feudal society for a day because one is exposed to none of its dangers—precisely because one is not really in a feudal political society. Otsuka, unfortunately, addresses none of these issues, and in the absence of such considerations, his political proposals strike the reader as having about as much seriousness as an amusement park.