Authors: Randy E. Barnett
ISBN-13: 9780691123769, ISBN-10: 0691123764
Format: Paperback
Publisher: Princeton University Press
Date Published: July 2005
Edition: 1st Edition
Randy E. Barnett is Austin B. Fletcher Professor of Law at Boston University School of Law and Senior Fellow of the Cato Institute. He is the author of "The Structure of Liberty: Justice and the Rule of Law".
"Step by step, Randy Barnett constructs an intriguing case for a moderately libertarian natural-rights Constitution that allows government action only when, and because, doing so protects the generously defined liberties of each person. Along the way he sheds new light on old controversies. This book should provoke the kind of controversy that advances our understanding of the Constitution."--Mark Tushnet, Georgetown University Law Center, author of The New Constitutional Order
"Randy Barnett makes two important arguments, one involving the interpretation of the Constitution by reference to original understandings, the other endorsing a libertarian tilt in resolving disputes about governmental powers. Constitutional scholars and students will find much to admire in Barnett's carefully nuanced arguments, whether or not they ultimately agree with his conclusions. But the book should attract general readers as well. It is remarkably well written, totally devoid of jargon, and presented in a conversational and courteous tone. A truly excellent book!"--Sanford Levinson, University of Texas School of Law, author of Constitutional Faith
"Randy Barnett's Restoring the Lost Constitution is a surprising book. It is surprising that a scholar as learned and competent as Barnett should undertake the defense of libertarianism--a perspective on the state and on law unfashionable among the intelligentsia for a century. It is surprising that he should defend it so well and reasonably. It is even more surprising that such a strong and comprehensive case can be made that this libertarian perspective not only was that of those who wrote and (more importantly) ratified the Constitution, but also that it is the lawful and proper way to interpret the Constitution today. This is an important and challenging book for anyone interested in American law and government."--Charles Fried, Beneficial Professor of Law, Harvard Law School, author of Saying What the Law Is: The Constitution in the Supreme Court
"Provocative in the best sense, this is a very readable book whose argument is clear and accessible even to those unversed in the details of constitutional law or theory. It is particularly suggestive and effective in connecting two disparate strands of conservative political and constitutional theory: traditional conservative respect for original constitutional meaning and libertarian commitment to individual rights."--Keith Whittington, author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
"This is an important book, one that everybody in the field will (or should) take account of. Randy Barnett puts forward a comprehensive, thoughtful, clear, concise, challenging, and historically plausible version of American Constitutionalism. He pulls together a tremendous amount of material, including some of the best recent revisionist scholarship on constitutional history, and sets this in a framework of great integrity and unity of vision."--Michael Zuckert, University of Notre Dame, author of Launching Liberalism: On Lockean Political Philosophy
A hopeful workprovocative, documented, resolute, reasoned, readabledelightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road.
Preface | ||
Introduction: Why Care What the Constitution Says? | 1 | |
Pt. I | Constitutional Legitimacy | |
Ch. 1 | The Fiction of "We the People": Is the Constitution Binding on Us? | 11 |
Ch. 2 | Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People | 32 |
Ch. 3 | Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities | 53 |
Pt. II | Constitutional Method | |
Ch. 4 | Constitutional Interpretation: An Originalism for Nonoriginalists | 89 |
Ch. 5 | Constitutional Construction: Supplementing Original Meaning | 118 |
Ch. 6 | Judicial Review: The Meaning of the Judicial Power | 131 |
Pt. III | Constitutional Limits | |
Ch. 7 | Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause | 153 |
Ch. 8 | Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause | 191 |
Ch. 9 | The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong | 224 |
Ch. 10 | The Presumption of Liberty: Protecting Rights without Listing Them | 253 |
Pt. IV | Constitutional Powers | |
Ch. 11 | The Proper Scope of Federal Power: The Meaning of the Commerce Clause | 274 |
Ch. 12 | The Proper Scope of Federal Power: Construing the "Police Power" | 319 |
Ch. 13 | Showing Necessity: Judicial Doctrines and Application to Cases | 335 |
Conclusion: Restoring the Lost Constitution | 354 | |
Index of Cases | 359 | |
Index of Names | 360 | |
General Index | 363 |