Restoring the Lost Constitution: The Presumption of Liberty - Updated Edition

Princeton University Press
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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.


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.

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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.
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Additional Information

Publisher
Princeton University Press
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Published on
Nov 24, 2013
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Pages
448
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ISBN
9781400848133
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Language
English
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Genres
History / United States / 20th Century
Law / Constitutional
Political Science / American Government / Judicial Branch
Political Science / American Government / Legislative Branch
Political Science / Constitutions
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Content Protection
This content is DRM protected.
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Available on Android devices
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Eligible for Family Library

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A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic.

The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.

Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.

In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.

Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.

The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:


   • The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
   • The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
   • The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threating to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.

Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.

Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.


From the Hardcover edition.
A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic.

The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.

Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.

In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.

Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.

Contracts: Cases and Doctrine, Sixth Edition, features a mix of lightly-edited classic and contemporary cases that stresses current contract doctrine along with the essential lawyering skill of case analysis—how to sift through the facts of the case to discern the prevailing rules and theory. Randy Barnett and Nate Oman’s innovative text introduces each case and provides the historical background of the iconic cases that make the study of contract law engaging. Study Guide questions help students identify salient issues as they read each case. Judicial biographies of each judge provides additional context.

Key Features of the New Edition:

The 6th Edition has been edited to make it even more modular and therefore easier for professors to select which doctrines to cover. The introductory materials have been shortened to permit a speedier entry to whichever basic doctrine the professor chooses to begin with. A new section on public policy defenses has been added. Recent developments involving arbitration agreements in the wake of the Supreme Court’s AT&T Mobility case are also covered. In addition, roughly a dozen new cases have been substituted, chosen for their interesting facts or their proven pedagogical usefulness. As always, every effort is made to provide students with background materials on the litigation, such as new judicial biographies and excerpts from recently published scholarship dealing with the cases covered.

New cases include:

Jordan v. Knafel Arnold Porter v. Fuqua Industries Nguyen v. Barnes & Noble Inc.

Also, in keeping with the book’s focus on the “classic” cases we have included some iconic cases missing from earlier editions, including:

Masterson v. Sine Security Stove & Manfacturing Co. v. American Railway Express Lefkowitz v. Great Minneapolis Surplus Store Lawrence v. Fox Harris v. Watson
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