Restoring the Lost Constitution: The Presumption of Liberty

Princeton University Press

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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About the author

Randy E. Barnett attended Northwestern University where he studied philosophy. He received his J.D. from Harvard University and worked as a prosecutor for several years. Barnett then turned to teaching and is currently the Austin B. Fletcher Professor of Law at Boston University Law School. Barnett has written frequently on law topics ranging from criminal law to constitutional rights and the role of consent in contract law. The Structure of Liberty: Justice and the Rule of Law, The Function of Restitutive Justice, and The Rights Retained by the People: The History and Meaning of the Ninth Amendment are some of his important works.

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Additional Information

Publisher
Princeton University Press
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Published on
Jan 10, 2009
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Pages
384
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ISBN
9781400825844
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Features
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Language
English
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Genres
Law / Child Advocacy
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Content Protection
This content is DRM protected.
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Contracts: Cases and Doctrine, Sixth Edition,ÿfeatures a mix of lightly-edited classic and contemporary cases that stresses current contract doctrine along with the essentialÿlawyeringÿskill 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:

Theÿ6thÿEdition 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. ÿ Recent developments involving arbitration agreements in the wake of the Supreme Court?s AT&T Mobility case are also covered. ÿ In addition, roughly a dozen new cases have been substituted, chosen for their interesting facts or their proven pedagogical usefulness. ÿ 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.ÿKnafel 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 &ÿManfacturingÿCo. v. American Railway Express Lefkowitzÿv. Great Minneapolis Surplus Store Lawrence v. Fox Harris v. Watson
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 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.

Constitutional Law: Cases in Context places primary emphasis on how constitutional law has developed, its foundational principles, and recurring debates, rather than focusing simply on doctrinal details. Teachable, manageable, class-sized chunks of material are suited to one-semester courses or reduced credit configurations. Generous case excerpts make the text flexible for most courses, no matter the ideology or interpretative method. Unique, concise coverage of the dormant commerce clause material helps clarify this often murky area. This allows the introduction of discriminatory intent and effects concepts in a less charged setting than race or gender material. Cases are judiciously supplemented with background readings from various sources. Providing additional context, the readings are long enough to help students understand the arguments, and edited where necessary to prevent overwhelming them. Constitutional Law: Cases in Context represents rival interpretations of the Constitution by founders, Presidents, and other critics of the Court's decisions better than do many other casebooks. Study guide questions help students focus on the salient issues, challenge them to consider the court's opinions from various perspectives, suggest comparisons or connections with other cases, and invite the student to think about recurring foundational principles and debates.

The Second Edition welcomes Howard E. Katz, of Elon University and co-author of "Strategies and Techniques of Law School Teaching: A Primer for New (and Not So New) Professors." Greatly reduced and more tightly edited introductory material preserves and expands content while providing additional balance. The text is updated with the most recent cases throughout. A two-color design features an art program and boxed Study Guides, and the text is available in e-formats as well as print. The Second Edition is one of three volumes specifically tailored for the most common courses, replacing the common one-size-fits-all format. Constitutional Law: Cases in Context , is designed for use both in one-semester courses and in two-semester sequences devoted to structure and rights. Constitutional Structure: Cases in Context covers Parts I and II of the parent book, and Constitutional Rights: Cases in Context covers Parts I and III. Each specialized volume can be taught in its entirety in one-semester Con Law I or Con Law II courses.

Features:

emphasis on how constitutional law has developed, its foundational principles, and recurring debates, rather than on just doctrinal details teachable, class-sized chunks manageable for professors and students better suited to one-semester courses or reduced credit configurations generous case excerpts for flexibility in teaching, no matter the approach unique, concise coverage of dormant commerce clause helps a normally murky area to be taught efficiently allows introduction of discriminatory intent and effects concepts (in a less charged setting than race or gender material) cases supplemented with judicious background readings various sources provide context readings are long enough to help students to understand arguments edited where necessary to prevent overwhelming the reader represents rival interpretations of the Constitution by founders, Presidents, and critics of the Court's decisions includes study guide questions
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