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This chapter examines judicial doctrines to assess necessity. The Presumption of Liberty places the burden of establishing the propriety of laws on the government. Taking the First Amendment as a model, when law is used to accomplish a proper purpose by restricting the liberties of the people, the Presumption of Liberty imposes a burden on those defending the necessity of these restrictions to show two things. First, the government must prove that there is a sufficient “fit” between the liberty-restricting means it chose and the proper purposes it was seeking to attain. Second, the government must demonstrate that there were no less restrictive alternatives to the liberty-restricting means that were chosen. The chapter applies the Presumption of Liberty to particular cases, such as unenumerated rights and the right to keep and bear arms.

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.

This concluding chapter argues that the original meaning of the entire Constitution, as amended, is much more libertarian than the one selectively enforced by the Supreme Court. It cites the evidence of original meaning presented in this book; for example, the “privileges or immunities” of citizens included natural rights as well as rights created by the adoption of the Bill of Rights. The term “commerce” unquestionably meant trade or exchange and did not extend to such other vital economic activities as manufacturing or agriculture. The “judicial power” included the power of to nullify unconstitutional statutes. The Ninth Amendment mandates that unenumerated rights shall not be denied or disparaged. The chapter asserts that attempts to perfect the Constitution by judicial construction conflict with and override its original meaning. It ends by insisting that the opportunity still exists to adopt a Presumption of Liberty and restore the lost Constitution.