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Restoring the Lost Constitution

Restoring the Lost Constitution

Author: Randy E. Barnett
Publisher: Princeton University Press
ISBN: 140084813X
Pages: 448
Year: 2013-11-24
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.
Restoring the Lost Constitution

Restoring the Lost Constitution

Author: Randy E. Barnett
Publisher: Princeton University Press
ISBN: 1400825849
Pages: 384
Year: 2009-01-10
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.
Restoring the Lost Constitution

Restoring the Lost Constitution

Author: Randy E. Barnett
Publisher: Princeton University Press
ISBN: 0691115850
Pages: 366
Year: 2004
"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 openended, construing it so as to better protect the rights retained by the people."--BOOK JACKET.
Our Republican Constitution

Our Republican Constitution

Author: Randy E. Barnett
Publisher: HarperCollins
ISBN: 0062412302
Pages: 320
Year: 2016-04-19
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.
Our Lost Constitution

Our Lost Constitution

Author: Mike Lee
Publisher: Penguin
ISBN: 0143108409
Pages: 256
Year: 2016-06
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.
The Structure of Liberty

The Structure of Liberty

Author: Randy E. Barnett
Publisher: Oxford University Press
ISBN: 019870092X
Pages: 400
Year: 2014
This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
The Lost World of Classical Legal Thought

The Lost World of Classical Legal Thought

Author: William M. Wiecek
Publisher: Oxford University Press, USA
ISBN: 0195147138
Pages: 286
Year: 2001-02-15
This book examines legal ideology in America from the height of the Gilded Age through the time of the New Deal, when the Supreme Court began to discard orthodox thought in favour of more modernist approaches to law. Wiecek places this era of legal thought in its historical context, integrating social, economic, and intellectual analyses.
The Dirty Dozen

The Dirty Dozen

Author: Robert A. Levy, William Mellor
Publisher: Cato Institute
ISBN: 1935308327
Pages: 302
Year: 2009-08-01
Alexander Hamilton wrote that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.” If only that were true. The Founding Fathers wanted the judicial branch to serve as a check on the power of the legislative and executive, and gave the Supreme Court the responsibility of interpreting the Constitution in a way that would safeguard individual freedoms. In some cases, like Brown V. Board of Education and United States V. Lopez, the Court fulfilled its role, protecting us from racial discrimination and the heavy hand of the federal government. But sadly, the Supreme Court has also handed down many destructive decisions on cases you probably never learned about in school. In The Dirty Dozen, two distinguished legal scholars shed light on the twelve worst cases, which allowed government to interfere in your private contractual agreements; curtail your rights to criticize or support political candidates; arrest and imprison you indefinitely, without filing charges; and seize your private property, without compensation, when someone uses the property for criminal activity—even if you don’t know about it! This is not a book just for lawyers. It’s for all Americans who want to understand how the Supreme Court can affect our right to life, liberty, and the pursuit of happiness. This paperback edition includes a new preface, “Guns, Bailouts, and Empathetic Judges,” which highlights new and critical issues that have arisen since the book’s initial edition was published in 2008.
Constitutional Law

Constitutional Law

Author: Randy E. Barnett, Josh Blackman
Publisher: Wolters Kluwer Law & Business
ISBN: 1454892889
Pages: 1744
Year: 2017-12
Constitutional Law: Cases in Context, Third Edition places primary emphasis on how constitutional law has developed since the Founding, its key foundational principles, and recurring debates. By providing both cases and context, it conveys the competing narratives that all lawyers ought to know and all constitutional practitioners need to know. 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. Cases are judiciously supplemented with background readings from various sources. Innovative study guide questions presented before each case help students focus on the salient issues, challenging them to consider the court’s opinions from various perspectives, and suggesting comparisons or connections with other cases. Key Benefits: Revised doctrinal areas with newer cases. Updated background contextual material to reflect current scholarship. A highly accessible and engaging structure that examines the competing narratives that pervade the development of American constitutional law since the founding. Related cases are grouped together into “assignments” and make for a reasonable amount of reading for each topic. A wealth of photographs, maps, and primary documents to bring the cases to life.
The Rights retained by the people

The Rights retained by the people

Author: Randy E. Barnett
Publisher: George Mason Univ Pr
ISBN:
Pages: 546
Year: 1993-03

A Conspiracy Against Obamacare

A Conspiracy Against Obamacare

Author: R. Barnett, J. Adler, D. Bernstein, O. Kerr, D. Kopel, I. Somin
Publisher: Springer
ISBN: 1137363738
Pages: 294
Year: 2013-11-12
The Affordable Care Act debate was one of the most important and most public examinations of the Constitution in our history. At the forefront of that debate were the bloggers of the Volokh Conspiracy who, from before the law was even passed, engaged in a spirited, erudite, and accessible discussion of the legal issues involved in the case.
The Liberty Amendments

The Liberty Amendments

Author: Mark R. Levin
Publisher: Simon and Schuster
ISBN: 1451606273
Pages: 272
Year: 2013-08-13
A new book on how to fix the U.S. government by the #1 New York Times best-selling author of Liberty and Tyranny and Ameritopia.
Constitutional Originalism

Constitutional Originalism

Author: Robert W. Bennett, Lawrence B. Solum
Publisher: Cornell University Press
ISBN: 0801461111
Pages: 224
Year: 2011-06-06
Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.
The Cloaking of Power

The Cloaking of Power

Author: Paul O. Carrese
Publisher: University of Chicago Press
ISBN: 0226094839
Pages: 349
Year: 2010-02-15
How did the US judiciary become so powerful—powerful enough that state and federal judges once vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy? In The Cloaking of Power, Paul O. Carrese provides a provocative analysis of the intellectual sources of today’s powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and strong but subtle courts. Montesquieu instructed statesmen to “cloak power” by placing judges at the center of politics, while concealing them behind juries and subtle reforms. Tracing this conception through Blackstone, Hamilton, and Tocqueville, Carrese shows how it led to the prominence of judges, courts, and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution, which he believes to be the source of the now-prevalent view that judging is merely political. To address this crisis, Carrese argues for a rediscovery of an independent judiciary—one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. He also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right.
Beyond the Constitution

Beyond the Constitution

Author: Hadley Arkes
Publisher: Princeton University Press
ISBN: 0691025541
Pages: 278
Year: 1992
Hadley Arkes argues that it is necessary to move "beyond the Constitution", to the principles that stood antecedent to the text, if we are to understand the text and apply the Constitution to the cases that arise every day in our law. "No thinker today brings greater intellectual verve and subtlety to delineating the connections between law and moral judgment than Hadley Arkes.--Richard John Neuhaus, President, Institute for Religion and Public Life "The most illuminating reconsideration of natural rights jurisprudence produced in many years".--Gary J. Jacobsohn, American Political Science Review "The most significant work on the Constitution in the decade since John Ely's Democracy and Distrust . . . .Beyond the Constitution is must' reading".--Gerard V. Bradley, University of Illinois, College of Law "That whose soul is brevity has been bestowed on Hadley Arkes in abundance . . . . [The] founding fathers would recognize in Arkes a kindred spirit. Here erudition and common sense are combined and bad arguments get what they deserve. One is reminded of Aristotle's definition of wit--well-bred insolence".--Ralph McInerny, University of Notre Dame