Restoring the Lost Constitution: The Presumption of Liberty / Edition 1

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Overview

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.

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Editorial Reviews

Washington Times - Willian H. Peterson
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.
Law and Politics Book Review - Ronald Kahn
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.
Washington Times
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
Law and Politics Book Review
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
From the Publisher
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

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Product Details

  • ISBN-13: 9780691123769
  • Publisher: Princeton University Press
  • Publication date: 7/5/2005
  • Edition description: Older Edition
  • Edition number: 1
  • Pages: 384
  • Product dimensions: 8.42 (w) x 9.22 (h) x 0.92 (d)

Meet the Author

Randy E. Barnett is Austin B. Fletcher Professor of Law at Boston University School of Law and Senior Fellow of the Cato Institute. He is the author of "The Structure of Liberty: Justice and the Rule of Law".
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Table of Contents

Preface ix

INTRODUCTION

Why Care What the Constitution Says? 1

PART I. Constitutional Legitimacy

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

CHAPTER FOUR

Constitutional Interpretation: An Originalism for Nonoriginalists 89

CHAPTER FIVE

Constitutional Construction: Supplementing Original Meaning 118

CHAPTER SIX

Judicial Review: The Meaning of the Judicial Power 131

PART III. Constitutional Limits

CHAPTER SEVEN

Judicial Review of Federal Laws:The Meaning of the Necessary and Proper Clause 153

CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause 191

CHAPTER NINE

The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong 224

CHAPTER TEN

The Presumption of Liberty: Protecting Rights without Listing Them 253

PART IV. Constitutional Powers

CHAPTER ELEVEN

The Proper Scope of Federal Power: The Meaning of the Commerce Clause 274

CHAPTER TWELVE

The Proper Scope of State Power:Construing the "Police Power" 319

CHAPTER THIRTEEN

Showing Necessity: Judicial Doctrines and Application to Cases 335

CONCLUSION

Restoring the Lost Constitution 354

Index of Cases 359

Index of Names 360

General Index 363

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