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Topic: Presumption of liberty

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	Liberty submissions for Inter-departmental Working Group (1999)
		Liberty considers that the 1999 Regulations should be amended to include this type of discrimination, but in relation to discrimination against a person on the basis of their gender identity.
		Liberty argued in its Response to the 1998 Consultation Paper that it would be desirable to extend any amendments to the Sex Discrimination Act 1975 ("the SDA") to all the areas covered by Part III of the SDA (such as education, goods, facilities, services and premises).
		Liberty suggested in their submissions to the ECHR in Sheffield and Horsham v UK that the social developments and current circumstances in the rest of Europe and much of the international community undermined a claim to the "margin of appreciation" with respect to trans people's rights.
	www.pfc.org.uk /workgrp/liberty.htm (5409 words)

	Randy E. Barnett on Supreme Court & Sodomy on National Review Online
		Had Douglas grounded the decision in "liberty" (which is mentioned in the text) rather than "privacy" (which is not), he would have risked undoing the strong deference to Congress and state legislatures that he and his fellow-New Deal justices had previously established.
		Once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.
		Liberty is — and has always been — the properly defined exercise of freedom that does not violate the rights of others.
	www.nationalreview.com /comment/comment-barnett071003.asp (2641 words)

	Restoring the Lost Constitution - Wikipedia, the free encyclopedia
		Restoring the Lost Constitution: The Presumption of Liberty is a book on the US constitution by Randy Barnett, where he outlines his theory of constitutional legitimacy, interpretation and construction.
		Also, laws which take away liberty or property are overturned as violating the due process clause, using something called substantive due process (as opposed to procedural due process).
		In other words, laws restricting liberty are assumed to be unconstitutional, unless the government has a particularly convincing argument.
	en.wikipedia.org /wiki/Presumption_of_liberty (2193 words)

	Know Your Constitution by Bruce R. McConkie
		The Constitution is a code of the people's liberties; it came into existence by the sovereign will of the people, and is so ordered that it cannot go out of existence except by the will of the people, or at least as a result of their indifference and acquiescence.
		It is the right to a writ of habeas corpus, and to bail except in capital cases where the proof is evident and the presumption sure.
		Liberty is a most sacred heritage of free men; most of our wars have been fought to preserve it.
	www.ldsinfobase.net /liberty/BRM_knowyourconst.html (15546 words)

	FT August/September 2004: Books in Review (Site not responding. Last check: 2007-11-04)
		It would seem that courts newly armed with this presumption would be duty-bound to scrutinize our law for the last remnants of moral principles, of tradition, and of concern for the common good—for anything that would restrict the autonomy of individuals and of consenting, contracting adults.
		Barnett denies that this is his intention, but the presumption of liberty that he delineates would effectively turn the judiciary into a perpetual Council of Revision, presuming all state or federal laws to be unconstitutional unless shown not to infringe liberty.
		Barnett’s recovery of the “original” meaning of liberty is, to say the least, eclectic, and it leads him in his final chapters to celebrate novel judicial rulings on individual autonomy and intimacy which recently have fostered boldness by state judges and officials about gay marriage.
	www.firstthings.com /ftissues/ft0408/reviews/barnett.htm (1592 words)

	Court: Shooting justified/ Reverses awards for man's siblings(jury,witnesses,judge-WRONG) (Site not responding. Last check: 2007-11-04)
		As for the "presumption of liberty," that is a new standard on me. I don't know what that is, and it is not a recognized doctrine in common law, statutory construction, or Virginia Civil Proceedure.
		This presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope.
		The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification.
	www.freerepublic.com /focus/news/800393/posts (4342 words)

	A Presumption of Liberty (Site not responding. Last check: 2007-11-04)
		Liberty is a great concept that could use a little more reflective study these days, especially in the Congress.
		The presumption of Liberty is what the courts especially—and all public servants really, should have.
		The presumption of Liberty would have it, that whenever the Constitution gives government the authority to act, courts should apply a demanding test.
	www.belogical.com /a_presumption_of_liberty.htm (935 words)

	Restoring The Lost Constitution: The Presumption of Liberty.
		When the liberty of the individual clashes with the power of the state, the Court would not accept the “mere assertion” by a legislature that a statute was necessary and proper.
		This presumption of liberty is justified because it is a better fit with [*906] the original meaning, and because legislatures cannot be trusted to judge the laws they create.
		A presumption of liberty also leads to results that many Americans would find to be “wrong outcomes,” such as a [*908] prohibition on national laws regulating pollution and labor (e.g., minimum wage).
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/barnett1104.htm (4883 words)

	The Rights Retained by The People [and the presumption of liberty] (Site not responding. Last check: 2007-11-04)
		Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope.
		However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties.
		When interpreted as justifying a presumption of liberty, however, I think this fear of the ninth amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not.
	www.freerepublic.com /focus/fr/1149329/posts (6197 words)

	Amazon.ca: Books: Restoring the Lost Constitution: The Presumption of Liberty (Site not responding. Last check: 2007-11-04)
		He argues that both federal and state legislatures which act to limit the liberties of the people need to show that it is within the enumerated powers of Congress or within the police powers of a state, respectively, and otherwise overturned by the courts.
		The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation.
		Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights.
	www.amazon.ca /exec/obidos/ASIN/0691115850 (2014 words)

	Dispatches from the Culture Wars: Sandefur Reviews Barnett (Site not responding. Last check: 2007-11-04)
		We must either accept the presumption that in pursuing happiness persons may do whatever is not justly prohibited, or we are left with a presumption that the government may do whatever is not expressly prohibited...".
		Thus, Sandefur and Barnett make a powerful argument that the presumption of liberty is a return to the original premise that drove our constitution and the conservative, Blackstonian tradition is a later distortion of it.
		Now, I contend that the Blackstonian notion of inherent, absolute sovereignty is logically implied in the presumption against liberty, and that it was for this reason adopted by defenders of slavery during the nineteenth century.
	www.stcynic.com /blog/archives/2005/07/sandefur_review_1.php (1174 words)

	The Rights Retained by The People
		In his response to Siegan, Bork not only misses the basic thrust of the presumption of liberty, he also misses the point of the theory of delegated powers that underlies the entire Constitution and that is explicitly acknowledged in the tenth amendment.
		According to the presumption of liberty, it is the legislator's burden to justify it's conduct, not the citizen's or the court's
		By putting on those who infringe upon the liberties of the people the onus of explaining why their enactments are lawful-in the sense that they are justified on general principles-the presumption of liberty serves the rule of law far better than the presumption of constitutionality.
	www.randybarnett.com /rightsbypeople.html (12074 words)

	Freespace: The presumption of liberty
		Barnett argues for what he calls a “presumption of liberty”: namely, that in all cases, the government ought to bear the burden of establishing the constitutionality of the laws it passes, rather than the other way around, as it now is in most cases.
		The Fifth Amendment, for instance, says that nobody shall be “deprived” of liberty without due process—which clearly suggests that they have it before the state comes along.
		The Constitution speaks of habeas corpus being “suspended.” It says that “the right of the people to keep and bear arms, shall not be infringed.” which also suggests that this right is antecedent to the Constitution.
	sandefur.typepad.com /freespace/2004/05/the_presumption.html (546 words)

	Hit and Run
		In any event, I see the primary possibility for the advancement of liberty in the Lawrence opinion is not in the possible contours of protected liberty interests (which is what we are discussing here), but rather in the reversal of the presumption that laws are Constitutional unless they trespass on an enumerated right.
		Certainly, the reversal of the presumption that laws are Constitutional has a long way to go, but it is encouraging to see it emerging blinking into the sun after the long night of Rooseveltian jurisprudence.
		Although the "Liberty" ruling seems to speak mostly to conduct within one's home, there is also a mention of the personal liberty that one retains out in public, as well.
	www.reason.com /hitandrun/2003/07/the_presumption.shtml (1829 words)

	widdershins: Presumption of Liberty
		Without relying on the right of privacy inferred over the last 40 years in the "emanations" and "penumbras" of the Bill of Rights, Justice Kennedy radically revives the 9th amendment (and the "privileges or immunities" clause of the 14th amendment).
		There is a presumption of liberty reserved to the people by the Constitution.
		The burden is on the state to justify an infringement on this liberty, not on the citizen to justify its exercise.
	mg.blogs.com /widdershins/2003/07/presumption_of_.html (149 words)

	A Kennedy defending Liberty? - Five pounds of flax (Site not responding. Last check: 2007-11-04)
		Roosevelt's New Deal Supreme Court replaced the "presumption of liberty" inherent in our Constitution with a "presumption of constitutionality" that favored legislatures.
		Over the last century, the "presumption of constitutionality" has been whittled away at by successive Supreme Courts.
		Now, Justice Kennedy is writing opinions that base judgements on a "presumption of liberty" once again.
	www.flyingbuttmonkeys.com /n/index.php?itemid=9 (201 words)

	Goldwater - Restoring the Lost Constitution: The Presumption of Liberty (Site not responding. Last check: 2007-11-04)
		Professor Randy Barnett joined us for a discussion of the findings of his new book, Restoring the Lost Constitution: The Presumption of Liberty, in which he argues that the U.S. Supreme Court has dramatically reinterpreted the Constitution to eliminate essential parts that protect basic rights.
		As a result, there is no longer a Â“presumption of libertyÂ” to protect citizens when laws are too restrictive.
		Barnett discussed what can be done, and showed how incorporating a presumption of liberty into analysis of government action will better protect the rights retained by the people.
	www.goldwaterinstitute.org /article.php/432.html (182 words)

	Restoring the Lost Constitution: The Presumption of Liberty
		The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court.
		Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty.
		He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.
	www.socialaw.com /article.htm?cid=14945 (300 words)

	LewRockwell.com Blog: Barnett and the Fourteenth Amendment
		He believes that Barnett has accomplished this with his "presumption of liberty." Writes Armstrong, "Barnett achieves what Kinsella is looking for -- the limitation of the federal government to those few powers specified in Article I, Section 8.
		Barnett seems to assume the Fourteenth Amendment does strongly protect citizens from state-level tyranny, but the matter is not central to his case.
		It's possible to maintain the 'presumption of liberty' at the federal level yet argue the Fourteenth Amendment should be weak." This is similar to my view, although I would prefer a "presumption of unconstitutionality" to a presumption of liberty, but more on this when I have time to get around to it.
	blog.lewrockwell.com /lewrw/archives/001323.html (881 words)

	SSRN-Lamenting Lochner's Loss: Randy Barnett's Case for a Libertarian Constitution by Trevor Morrison
		To remedy the problem, Professor Barnett proposes abandoning the presumption of constitutionality that courts typically accord to state and federal laws, and adopting in its place a presumption of liberty that, he contends, is more consistent with the Constitution's original meaning.
		Third, especially in his discussion of the state police power, Professor Barnett operationalizes his presumption of liberty by injecting into the Constitution a number of remarkably unstable conceptual distinctions.
		Fourth and finally, Professor Barnett's argument for a generalized jurisprudence of liberty neglects the extent to which particular articulations of liberty in our constitutional system may be linked to another core constitutional value: equality.
	papers.ssrn.com /sol3/papers.cfm?abstract_id=631004 (439 words)

	Reason: Coercion vs. Consent: A Reason debate on how to think about liberty
		We are now faced with the difficult practical question of how to identify these rights-threatening arrangements, to punish them if they achieve their object, and, more important, to nip them in the bud.
		Randy Barnett is the Austin B. Fletcher Professor at Boston University School of Law, and the author of The Structure of Liberty: Justice and the Rule of Law (Oxford).
		As to terror, we all face the sticky tradeoff between liberty and security, where the only sensible program (even in Barnett’s universe) asks whether additional precautions are more intrusive than beneficial.
	www.reason.com /0403/fe.ra.coercion.shtml (5907 words)

	26 Val L Rev 419 (Site not responding. Last check: 2007-11-04)
		According to what the Court calls the 'presumption of constitutionality," legislation will be upheld if any "rational basis' for its passage can be imagined, unless it violates a "fundamental" right-and liberty has not been deemed by the Court to be a fundamental right.
		Although Article I, Section 8 delegates this power to Congress, when it chooses a means of accomplishing this end that intrudes upon the liberties of the people, as a military draft does, then it must justify this rights infringement by showing that its acts are genuinely necessary and proper.
		In this case, the Court also suggested that the presumption may be rebutted by showing that discrete and insular minorities are adversely affected or that the political process is being impeded.
	www.randybarnett.com /26val419.htm (6425 words)

	Book Review - Restoring the Lost Constitution
		Laws that infringe upon liberty should be presumed invalid unless the government can show that they are the least restrictive means of achieving their declared objectives.
		The Presumption of Liberty would have no trouble affording protection to [the right to keep and bear arms] and requiring that all restrictions on gun possession and use be justified as necessary.
		Moreover, any effort to deprive the law-abiding citizenry of their right to possess firearms by confiscating their weapons or banning all firearms would be improper and unconstitutional despite any argument from necessity that could be made on its behalf.
	www.fff.org /freedom/fd0501h.asp (1135 words)

	Federalist Society Barnett lecture Feb. 2004 - William Mitchell College of Law (Site not responding. Last check: 2007-11-04)
		He will discuss his book "Restoring the Lost Constitution: The Presumption of Liberty" on Monday, Feb. 9, at 5:30 p.m.
		Speaking about his book, Barnett will argue that it is wrong for courts to hold a presumption of constitutionality about legislation.
		Instead courts should have a presumption of liberty.
	www.wmitchell.edu /news/articles/BarnettLecture.html (342 words)

	Sample Chapter for Barnett, R.E.: Restoring the Lost Constitution: The Presumption of Liberty.
		Equally untenable is the principal alternative to the "consent of the governed": the argument that the benefits received by citizens from a constitutional order and a duty of fair play obligate them, in return, to obey laws regardless of whether they consent to them.
		The natural rights to which they and I refer are the "liberty rights" that, given the nature of human beings and the world in which we live, make it possible for each person to pursue happiness while living in close proximity to others and for civil societies to achieve peace and prosperity.
		The first of these is called "the presumption of constitutionality." While this construction has never been accepted in its entirety, the exceptions that have been created to it are revealing in the way they run afoul of the text.
	pup.princeton.edu /chapters/i7648.html (1928 words)

	Dispatches from the Culture Wars: Constitutional Law Archives (Site not responding. Last check: 2007-11-04)
		At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its 'police power' - that is, the state's power to protect the rights of its citizens...
		Our liberty is in their hands and they have an obligation to tell us what they intend to do with it before we give that power to them.
		Conservatives would rather stake their claim to liberty on the premise that the authority granted to a centralized government is limited in scope.
	www.stcynic.com /blog/archives/constitutional_law/index.php (13324 words)

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