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summary

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.

Table of Contents

  1. Cover
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  1. Title Page, Copyright
  2. pp. i-vi
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  1. Contents
  2. pp. vii-viii
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  1. Preface
  2. pp. ix-xv
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  1. INTRODUCTION: Why Care What the Constitution Says?
  2. pp. 1-6
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  1. PART I. Constitutional Legitimacy
  1. ONE: The Fiction of “We the People”: Is the Constitution Binding on Us?
  2. pp. 11-31
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  1. TWO: Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People
  2. pp. 32-52
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  1. THREE: Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities
  2. pp. 53-86
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  1. PART II. Constitutional Method
  1. FOUR: Constitutional Interpretation: An Originalism for Nonoriginalists
  2. pp. 91-119
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  1. FIVE: Constitutional Construction: Supplementing Original Meaning
  2. pp. 120-131
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  1. SIX: Judicial Review: The Meaning of the Judicial Power
  2. pp. 132-150
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  1. PART III. Constitutional Limits
  1. SEVEN: Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause
  2. pp. 155-192
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  1. EIGHT: Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause
  2. pp. 193-225
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  1. NINE: The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong
  2. pp. 226-254
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  1. TEN: The Presumption of Liberty: Protecting Rights without Listing Them
  2. pp. 255-272
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  1. PART IV. Constitutional Powers
  1. ELEVEN: The Proper Scope of Federal Power: The Meaning of the Commerce Clause
  2. pp. 277-321
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  1. TWELVE: The Proper Scope of State Power: Construing the “Police Power”
  2. pp. 322-337
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  1. THIRTEEN: Showing Necessity: Judicial Doctrines and Application to Cases
  2. pp. 338-356
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  1. Conclusion Restoring the Lost Constitution
  2. pp. 357-360
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  1. Afterword
  2. pp. 361-420
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  1. Index of Cases
  2. pp. 421-422
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  1. Index of Names
  2. pp. 423-426
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  1. General Index
  2. pp. 427-430
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Additional Information

ISBN
9781400848133
Related ISBN
9780691159737
MARC Record
OCLC
966762667
Pages
448
Launched on MUSE
2017-01-01
Language
English
Open Access
No
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