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.
Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center and was a Guggenheim Fellow in Constitutional Studies. He is the author of The Structure of Liberty: Justice and the Rule of Law.
Preface ix INTRODUCTION Why Care What the Constitution Says? 1 Part I. Constitutional Legitimacy 7 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 87 CHAPTER FOUR Constitutional Interpretation: An Originalism for Nonoriginalists 91 CHAPTER FIVE Constitutional Construction: Supplementing Original Meaning 120 CHAPTER SIX Judicial Review: The Meaning of the Judicial Power 132 Part III. Constitutional Limits 151 CHAPTER SEVEN Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause 155 CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause 193 CHAPTER NINE The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong 226 CHAPTER TEN The Presumption of Liberty: Protecting Rights without Listing Them 255 PART IV. Constitutional Powers 273 CHAPTER ELEVEN The Proper Scope of Federal Power: The Meaning of the Commerce Clause 277 CHAPTER TWELVE The Proper Scope of State Power: Construing the "Police Power" 322 CHAPTER THIRTEEN Showing Necessity: Judicial Doctrines and Application to Cases 338 CONCLUSION Restoring the Lost Constitution 357 AFTERWORD 361 Index of Cases 421 Index of Names 423 General Index 427