In 1998, legal historian William M. Wiecek published a book outlining the basic legal ideology that brought us the “Lochner era” in Supreme Court decision-making. It was fittingly entitled, The Lost World of Classical Legal Thought in America: Law and Ideology, 1886-1937. Wiecek demonstrated that the “classical” legal thought that generated the “libertarian” decision-making of the Lochner era, which occurred during the first third or so of the twentieth century, was the attempt to bring Lockean political principles directly to bear on the task of interpreting the 1787 Constitution in the post-Reconstruction era. In 2004, Professor Randy E. Barnett contends in his book, Restoring the Lost Constitution: The Presumption of Liberty, that, if “classical legal thought” has regrettably been lost, it embodies the true and legitimate Constitution that may yet be regained. To rediscover “classical legal thought”, he advocates discarding the “presumption of constitutionality” as the centerpiece of constitutional adjudication and imposing, instead, a “presumption of liberty” to implement the libertarian views held by the Constitution's framers. This Article will attempt to show that Barnett's analysis of the Constitution consistently mistakes the “ends” the founders sought to advance with the “means” they chose to advance them. The result of implementing Barnett's Lockean Constitution, however, would both undermine the rule of law and have the extremely deleterious effect of placing courts beyond the Constitution that judicial review was designed to interpret.
75 U. Cin. L. Rev. 1499 (2007).
McAffee, Thomas B., "Restoring the Lost World of Classical Legal Thought: The Presumption in Favor of Liberty over Law and the Court over the Constitution" (2007). Scholarly Works. Paper 513.