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This chapter examines the revival of the presumption of constitutionality and its almost immediate qualification in the form of Footnote Four, which it argues is inconsistent with the Ninth Amendment. The era in which the Supreme Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. The doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. The chapter first provides an overview of Footnote Four before discussing the Ninth Amendment, which mandates that unenumerated rights be treated the same as those that are listed. It shows that Footnote Four runs afoul of the text of the Constitution, and more specifically the Ninth Amendment.

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.

The chapter of Mr. Justice Gerard Hogan addresses the case of Ryan v Attorney General. He considers the consequences of the reliance by judges in the case on extra-textual norms (e.g. on the ‘Christian and democratic nature of the State’), arguing that they could instead have relied on norms that had a clearer textual basis. Their failure to do so, he argues, distorted the rights elements of Irish constitutional jurisprudence in part through a related failure to develop a thorough analysis of the meaning of the rights that were expressly enumerated in the text itself.

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.

Claire Michelle Smyth’s chapter examines the question of socio-economic rights in the Irish Constitution. She argues that it is possible to identify the avenues for constitutionalisation of socio-economic rights without the need for express incorporation by way of referendum. Beginning with an overview of the case which cements the status of social and economic rights in the Irish Constitutional order, this chapter examines the potential of reinvigorating the doctrine of unspecified rights, utilising the power of Article 45 and analysing the legitimacy of the Supreme Court’s reasoning to refuse judicial intervention. It concludes that Irish courts need to re-evaluate their stance and embrace the value of social and economic rights and to actively engage with their obligation to protect and vindicate the personal rights of the citizen.

The textualist says we can find what the Constitution means by consulting the plain words of the constitutional document. The consensualist consults a current social consensus on what the words of the document mean. This chapter treats these approaches together because both claim to consult conventional understandings of the meanings of the words. It concludes that the textualist and the consensualist reason, not from plain words or social consensus, but from a conception of democracy that is controversial enough to require a philosophic defense — a defense that textualists and consensualists would but cannot responsibly avoid. The chapter also distinguishes a plain words version of textualism from an abstract version of textualism, showing that the latter is equivalent to the philosophic approach. It sketches a preliminary view of the philosophic approach and previews objections that it would be undemocratic, un-American, dangerous, and/or fruitless.