Restoring The Lost Constitution

by Barnett, Randy E.

• ISBN13: 9780691123769
• ISBN10: 0691123764
• Format: Paperback
• Copyright: 2005-07-05
• Publisher: Princeton Univ Pr

Summary

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. InRestoring 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 Constitutionforcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.

Author Biography

Randy E. Barnett is Austin B. Fletcher Professor of Law at Boston University School of Law and Senior Fellow at the Cato Institute

Table of Contents

Preface	ix
Introduction: Why Care What the Constitution Says?	1	(10)
Part I. Constitutional Legitimacy
The Fiction of ``We the People'': Is the Constitution Binding on Us?	11	(21)
Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People	32	(21)
Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities	53	(36)
Part II. Constitutional Method
Constitutional Interpretation: An Originalism for Nonoriginalists	89	(29)
Constitutional Construction: Supplementing Original Meaning	118	(13)
Judicial Review: The Meaning of the Judicial Power	131	(22)
Part III. Constitutional Limits
Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause	153	(38)
Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause	191	(33)
The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong	224	(29)
The Presumption of Liberty: Protecting Rights without Listing Them	253	(21)
Part IV. Constitutional Powers
The Proper Scope of Federal Power: The Meaning of the Commerce Clause	274	(45)
The Proper Scope of State Power: Construing the ``Police Power''	319	(16)
Showing Necessity: Judicial Doctrines and Application to Cases	335	(19)
Conclusion: Restoring the Lost Constitution	354	(5)
Index of Cases	359	(1)
Index of Names	360	(3)
General Index	363