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.
With or Without Consent, You WILL be bound Restoring the Lost Constitution did a pretty good job at establishing the Presumption of Liberty which the courts ought to be employing when rendering their decisions. However, I disagree with the basic premise of the book which is that the Constitution is binding upon all in conscience, whether or not you consent to be governed. I think that if federal courts adopted Barnett's premise of adjudication then the results of the courts would be a lot more consistent. Many arguments over semantics and foundations of word meanings at the time the Constitution was adopted may be interesting for lexicographers and etymologists, but this really wasn't my bag.
innovative and interesting I found this book very enjoyable as well as informative. I learned more from this book than I did from an entire semester of constitutional law in law school. Barnett has a way of brilliantly explaining a case, good and bad, like no one else can. He made me look at decisions, which I have always assumed were correct, in an entirely new way. For example, his analysis of McCulloh v. Maryland really demonstrated the flaws of Chief Justice Marshall's logic. His historical analysis is vivid, entertaining, and educational. Professor Barnett also spends considerable time on a very important, but often ignored aspect of constitutional theory: why the is constitution binding? He demonstrates that it is not because any type or form of consent, which leads him to his reason for the constitution being binding. Unfortunately, Barnett does not discuss any of the other grounds for why the constitution is argued to be binding (i.e. the liberal leaning arguments, which lead to a 'living' constitution). As other reviewers have noted, Barnett gives a new argument and new form of textualism informed by original meaning than others before him. His version has numerous benefits to the more 'conservative' arguments: 1)it protects individual rights instead of enabling governmental authorities to violate them; 2) it doesn't rely on consent, and yes, 3) it produces better results. But above all, Barnett acknowledges the limits of textualism and discusses how a judge should deal with such limitations. Something Scalia never admits in his book on constitutional interpretation. All and all, this is the most entertaining and perhaps worthwhile book that I've read on the constitution (and I've read a lot). I highly recommend it.
Yes Virginia, there is a constitution In this excellent book, an academic page turner, Barnett resurrects and reconstructs the commerce, necessary and proper clause and the ninth amendment and the privileges and immunities clauses as meaningful, judicially enforceable restrictions on governmental powers. Barnett takes rights seriously and points out that the Bill of Rights is merely the tip of an actually enacted iceberg of rights that the courts are bound by the constitution to enforce--but do not. Barnett calls on courts to do their duty by these clauses and points out that the refusal of courts, to meaningfully protect rights in the name of judicial restraint is anything but. Barnett exposes the narrowness of the current debate between so called judicial conservatives and judicial liberals by pointing out that all now subscribe to a much narrower definition of rights that the constitution actually provides. For Barnett much of importance in the constitution has simply been discarded by the courts because it gets in the way of the kind of government people now think they want. The great service of Barnett's book is that by showing what has been lost or actually deliberately thrown away he shows the way back if we choose to take it. The larger question is not only whether we should take rights as seriously as the framers but whether we should take written constitutions as seriously as they did as absolutely essential to the preservation of liberties.
Head & Shoulders above all other Constitutional Scholars Having read most of the current batch of constitutional scholars, and while respectful of their opinions, I believe that none reach the level of Barnett's understanding of the Constitution and the importance his thesis is to all Americans if we want to protect our freedoms from those internally who would deny we even possess rights as individuals.
Barnett starts off by providing a strong, though subjective, philospohical basis for the legitimacy of government power over citizens claiming they are truly free. Because this is the only subjective topic reviewed in the book, I've been striving since he published this book to find evidence that rationally or empirically defeats his thesis, I've found none nor have I found anyone with a superior thesis, which is, paraphrased: Legitimate government power over a free populace acheives legitimate consent only as long as its power protects the greater rights of its populace over the lesser rights of others. For example, police power protecting citizens' property against those that would steal other's property.
Barnett goes on to make a bullet-proof case that original meaning is the only legitimate interpretative approach and using that approach, what does the constitution mean, especially in terms of what rights we reserve and what powers to gov't have we granted.
Constitutionalist theorists like Bork who claim originalist roots that claim we need to use framer intent as filtered by him because the framers didn't provide ample evidence of their meaning is smashed by Barnett. Not only does Barnett provide convincing empirical evidence of the original meaning of the Constitution and many of its important principles and clauses; Barnett even provides ample evidence of the meaning as interpreted by the State Ratifying committees and the understanding by the populace as expressed in the newspapers of the day. I won't divulge here what Barnett finds since i highly recommend purchasing the book and finding out for yourselves.
While reviewing the original meaning of the constitution, Barnett provides a surprising twist, he provides very few modern cases that compare the court's rulings to the original meaning. For me at least, that provided me with little chance to stereotype Barnett into an ideological camp. I found this initially frustrating because it forced me during the reading of this section of the book to spend more thinking time understanding his points, but at the end of this section, I was rewarded by embracing the concepts he promotes on their merit by not allowing me to filter his arguments through my own ideological prism.
The end of the book does have Barnett reviewing many modern consitutional issues and applying the original meaning as found by Barnett against these cases. The reader will be surpised when media pundits label Barnett as a conservative scholar, as he often is, when in fact his thesis easily destroys any justicification social conservatives have to leverage government power over the rights we reserve as free people.
The reader will also be surprised as to why Democrats don't embrace these concepts more since their political platform to protect individual rights is so well supported by Barnett's findings when studying our founding. I can only speculate that by embracing Barnett's positions, the Democrats would have to fight to increase government power through constitututional amendments to legitimatize regulatory power to protect the environment or business beyond commerce. My only criticism of his book is that he didn't address the Roe and Casey rulings, where I would be most interested in understanding his position - I can only speculate that he resisted commenting in order to not be stereotyped and labeled.
In summary, if you buy one book to better understand the current culture war over the legitimate rights of citizens relative to the granted power we've extended government, this is the book. If you are a dedicated student of constitutional law, than I guarantee this book will become of the most valuable books in your collection - Barnett is that good.
Splendid "Imagine holding up a copy of the Constitution and seeing empty holes in the parchment where these passages once appeared-or seeing ink blots over them."
In the preface, Professor Barnett describes his disillusionment with the United States Constitution, how it drove him away from the field of constitutional law, and then describes how he was brought back. The early chapters are an attempt to bring the reader back with him. Borrowing the arguments of Lysander Spooner, a 19th century abolitionist, he proceeds to prove the Constitution illegitimate on traditional grounds and then builds it up again on a new foundation, the "Presumption of Liberty." The presumption of liberty is the antipode of the now-favored method of judicial review, the presumption of constitutionality (in short, when challenging legislation, the burden lies on the individual to prove that legislation is unconstitutional, and not on the government to prove that it is not). Drawing on theories of natural rights, he proposes a method of constitutional "legitimation."
After this prelude, Barnett goes on to concretely defend originalism (specifically, "original meaning" originalism, as opposed to "original intent": a dichotomy well explicated) as an attractive constitutional theory of interpretation, against critics ranging from Robert Bork to New Deal liberals. The groundwork laid, the major work of the book commences: discovery of the original meaning of the Constitution, or at least many of its pertinent parts, including most prominently the (forgotten) Ninth Amendment, the Fourteenth Amendment, the Interstate Commerce Clause, and the Necessary and Proper Clause. The conclusion will be unsurprising to many: the original meaning of the Constitution has been grossly distorted. In his words:
"For some political agendas to advance, the heart of the Constitution must be excised, and so it has been, clause by inconvenient clause, until the Constitution has been distorted and lost."
Throughout, Barnett writes accessibly and lucidly. Even those parts of the book one would expect to be most dry--the analysis of constitutional clauses by usage of contemporary sources, including dictionaries, issues of The Federalist, and period newspapers--vibrate. Despite the libertarian undercurrent, the book is never partisan: indeed, great pains seem to be taken to invite readers of all political stripes to come along. Only in the conclusion does one begin to sense the great weight of what's been written, and--in my case--feel the gratitude towards the author for writing such an interesting, excellent, and--certainly--heroic book.
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