Restoring the Lost Constitution: The Presumption of Liberty

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Princeton University Press, 2004 - Law - 366 pages
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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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Contents

Why Care What the Constitution Says?
1
Constitutional Legitimacy
7
The Fiction of We the People Is the Constitution Binding on Us?
11
Constitutional Legitimacy without Consent Protecting the Rights Retained by the People
32
Natural Rights as Liberty Rights Retained Rights Privileges or Immunities
53
Constitutional Interpretation An Originalism for Nonoriginalists
89
Constitutional Construction Supplementing Original Meaning
118
Judicial Review The Meaning of the Judicial Power
131
The Mandate of the Ninth Amendment Why Footnote Four Is Wrong
224
The Presumption of Liberty Protecting Rights without Listing Them
253
The Proper Scope of Federal Power The Meaning of the Commerce Clause
274
The Proper Scope of State Power Construing the Police Power
319
Showing Necessity Judicial Doctrines and Application to Cases
335
Restoring the Lost Constitution
354
Index of Cases
359
Index of Names
360

Constitutional Limits
149
Judicial Review of Federal Laws The Meaning of the Necessary and Proper Clause
153
Judicial Review of State Laws The Meaning of the Privileges or Immunities Clause
191

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Actual Ethics
James R. Otteson
Limited preview - 2006
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About the author (2004)

Randy E. Barnett is the Austin B. Fletcher Professor at the Boston University School of Law and a senior fellow of the Caro Institute.

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