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Restoring the Lost Constitution: The Presumption of Liberty

by Randy E. Barnett

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1211168,798 (4.07)1
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.… (more)

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In 2003, the Supreme Court declared that people who challenge the constitutionality of an economic regulation must "negative every conceivable basis" for that regulation if they are to prevail (Fitzgerald v. Racing Ass'n of Central Iowa). In other words, laws controlling private property or economic activity are presumed constitutional unless shown to be utterly arbitrary, without any evidence whatsoever in their favor. There was nothing novel about this: the Supreme Court has held this view for the past seventy years.
In Restoring the Lost Constitution, Randy Barnett takes aim at this idea with an argument laced with common sense. His book, subtitled "The Presumption of Liberty", brings together arguments he has made in previous articles and books with the goal of providing a systematic defense of a libertarian interpretation of the U.S. Constitution.

He begins with the fundamental question: What makes government legitimate? He then proceeds to define the meaning of legal texts objectively, rather than on the basis of the subjective preferences of authors or contemporary political expediency. His project is an ambitious one for in doing this Barnett challenges a generation of legal theory from across the political spectrum, but does so without polemics, relying on the clarity of his arguments and the common-sense appeal of his positions to make his case. The result is a well-organized book that discusses the legitimacy, method and limits of the Constitution. He concludes with a section on the powers of the constitution that discusses both federal and state roles with a chapter on judicial applications.
In the final chapter Barnett makes clear the extent to which the Constitution has been "lost" and how the "Presumption of Liberty" would restore those sections that have been ignored for many decades. This is a magnificent defense of Constitutional liberty. ( )
  jwhenderson | May 5, 2012 |
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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.

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