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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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The Presumption of Liberty: Protecting Rights without Listing Them

The Presumption of Liberty: Protecting Rights without Listing Them

Chapter:
(p.255) Chapter Ten The Presumption of Liberty: Protecting Rights without Listing Them
Source:
Restoring the Lost Constitution
Author(s):

Randy E. Barnett

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691159737.003.0011

This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.

Keywords:   unenumerable rights, presumption of constitutionality, legislation, liberty, Privileges or Immunities Clause, Fourteenth Amendment, Ninth Amendment, originalism, Presumption of Liberty

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