"The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. 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. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases."
By:
Randy E. Barnett
Imprint: Princeton University Press
Country of Publication: United States
Edition: Updated Edition
Dimensions:
Height: 235mm,
Width: 152mm,
Spine: 28mm
Weight: 595g
ISBN: 9780691159737
ISBN 10: 0691159734
Pages: 448
Publication Date: 03 February 2014
Audience:
College/higher education
,
Professional and scholarly
,
A / AS level
,
Further / Higher Education
Format: Paperback
Publisher's Status: Active
"Preface ix INTRODUCTION Why Care What the Constitution Says? 1 Part I. Constitutional Legitimacy 7 CHAPTER ONE The Fiction of ""We the People"": Is the Constitution Binding on Us? 11 CHAPTER TWO Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People 32 CHAPTER THREE Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities 53 Part II. Constitutional Method 87 CHAPTER FOUR Constitutional Interpretation: An Originalism for Nonoriginalists 91 CHAPTER FIVE Constitutional Construction: Supplementing Original Meaning 120 CHAPTER SIX Judicial Review: The Meaning of the Judicial Power 132 Part III. Constitutional Limits 151 CHAPTER SEVEN Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause 155 CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause 193 CHAPTER NINE The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong 226 CHAPTER TEN The Presumption of Liberty: Protecting Rights without Listing Them 255 PART IV. Constitutional Powers 273 CHAPTER ELEVEN The Proper Scope of Federal Power: The Meaning of the Commerce Clause 277 CHAPTER TWELVE The Proper Scope of State Power: Construing the ""Police Power"" 322 CHAPTER THIRTEEN Showing Necessity: Judicial Doctrines and Application to Cases 338 CONCLUSION Restoring the Lost Constitution 357 AFTERWORD 361 Index of Cases 421 Index of Names 423 General Index 427"
Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center and was a Guggenheim Fellow in Constitutional Studies. He is the author of The Structure of Liberty: Justice and the Rule of Law.
Reviews for Restoring the Lost Constitution: The Presumption of Liberty - Updated Edition
Winner of the 2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books A hopeful work--provocative, documented, resolute, reasoned, readable--delightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road. --Willian H. Peterson, Washington Times This book is terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution... [A]n excellent work. --Ronald Kahn, Law and Politics Book Review Barnett?s new book is a valuable asset for those interested in controversial topics of constitutional theory. --Z?th? Arslan, Political Studies Review Barnett?s book is perhaps the most important book about originalism since Robert H. Bork?s The Tempting of America... It is the best defense ever written of a libertarian or conservative/libertarian approach to constitutional law. --Steven G. Calabresi, Michigan Law Review
- Winner of 2005 Lysander Spooner Award for Advancing the Literature of Liberty 2005
