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Restoring the Lost Constitution: The Presumption of Liberty

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Restoring the Lost Constitution: The Presumption of Liberty Cover

 

Synopses & Reviews

Publisher Comments:

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.

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

Product Details

ISBN:
9781400825844
Publisher:
Princeton University Press
Subject:
Law : Child Advocacy
Author:
Barnett, Randy E.
Author:
Randy E. Barnett
Author:
Barnett, Randy E. E.
Subject:
Constitutional
Subject:
Government - U.S. Government
Subject:
Legal System
Subject:
Child Advocacy
Subject:
Political Science and International Relations
Subject:
Law
Subject:
Law | Constitutional Law
Subject:
Law : General
Subject:
Law : Constitutional
Subject:
Political Science : Political Freedom & Security - Law Enfor
Subject:
main_subject
Subject:
all_subjects
Publication Date:
July 2005
Binding:
eBooks
Language:
English
Pages:
384

Related Subjects

History and Social Science » Crime » Enforcement and Investigation
History and Social Science » Law » Constitutional Law
History and Social Science » Law » Divorce and Child Custody
History and Social Science » Law » General
History and Social Science » Law » Judicial Power
History and Social Science » Politics » General

Restoring the Lost Constitution: The Presumption of Liberty
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Product details 384 pages Princeton University Press - English 9781400825844 Reviews:
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