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.
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