Restoring the Lost Constitution: The Presumption of Liberty

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.

About the Author :
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.

Review :
"Winner of the 2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books" "A hopeful work--provocative, documented, resolute, reasoned, readable--delightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road."---Willian H. Peterson, Washington Times "Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America. . . . It is the best defense ever written of a libertarian or conservative/libertarian approach to constitutional law."---Steven G. Calabresi, Michigan Law Review "Barnett's new book is a valuable asset for those interested in controversial topics of constitutional theory."---Züthü Arslan, Political Studies Review "This book is terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution. . . . [A]n excellent work."---Ronald Kahn, Law and Politics Book Review