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Restoring the Lost Constitution


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Table of Contents

Preface ix INTRODUCTION Why Care What the Constitution Says? 1 Part I. Constitutional Legitimacy 7 CHAPTER ONE The Fiction of "We the People": Is the Constitution Binding on Us? 11 CHAPTER TWO Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People 32 CHAPTER THREE Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities 53 Part II. Constitutional Method 87 CHAPTER FOUR Constitutional Interpretation: An Originalism for Nonoriginalists 91 CHAPTER FIVE Constitutional Construction: Supplementing Original Meaning 120 CHAPTER SIX Judicial Review: The Meaning of the Judicial Power 132 Part III. Constitutional Limits 151 CHAPTER SEVEN Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause 155 CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause 193 CHAPTER NINE The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong 226 CHAPTER TEN The Presumption of Liberty: Protecting Rights without Listing Them 255 PART IV. Constitutional Powers 273 CHAPTER ELEVEN The Proper Scope of Federal Power: The Meaning of the Commerce Clause 277 CHAPTER TWELVE The Proper Scope of State Power: Construing the "Police Power" 322 CHAPTER THIRTEEN Showing Necessity: Judicial Doctrines and Application to Cases 338 CONCLUSION Restoring the Lost Constitution 357 AFTERWORD 361 Index of Cases 421 Index of Names 423 General Index 427

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".


Winner of the 2005 Lysander Spooner Award for Advancing the Literature of Liberty, Laissez Faire Books "A hopeful work--provocative, documented, resolute, reasoned, readable--delightfully devoid of legalistic obtuseness. It lights up a road back to limited government, albeit a steep road."--Willian H. Peterson, Washington Times "This book is terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution... [A]n excellent work."--Ronald Kahn, Law and Politics Book Review "Barnett's new book is a valuable asset for those interested in controversial topics of constitutional theory."--Zuthu Arslan, Political Studies Review "Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America... It is the best defense ever written of a libertarian or conservative/libertarian approach to constitutional law."--Steven G. Calabresi, Michigan Law Review

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