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xv, 430 pages ; 24 cm
  • Introduction: Why care what the Constitution says?
  • The fiction of "We the people" : is the Constitution binding on us?
  • Constitutional legitimacy without consent : protecting rights retained by the people
  • Natural rights as liberty rights : retained rights, privileges, or immunities
  • Constitutional interpretation : an originalism for nonoriginalists
  • Constitutional construction : supplementing original meaning
  • Judicial review : the meaning of the judicial power
  • Judicial review of federal laws : the meaning of the necessary and proper clause
  • Judicial review of state laws : the meaning of the privileges or immunities clause
  • The mandate of the Ninth Amendment : why footnote four is wrong
  • The presumption of liberty : protecting rights without listing them
  • The proper scope of federal power : the meaning of the commerce clause
  • The proper scope of state power : construing the "police power"
  • Showing necessity : judicial doctrines and application to cases
  • Conclusion: Restoring the lost constitution.
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.
(source: Nielsen Book Data)9780691159737 20160612
Law Library (Crown)
LAW-456-01, LAW-7045-01
xii, 161 p. ; 23 cm.
  • Introduction
  • Living constitutionalism : activism unleashed
  • Originalism : activism masquerading as restraint
  • Political process theory : a third way down the rabbit hole
  • Pragmatism : activism through antitheory
  • The failure of cosmic constitutional theory.
American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges. What sparked this development? In this engaging volume, Judge J. Harvie Wilkinson argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork and Richard Posner, have all produced seminal interpretations of our Founding document, but ones that promise to imbue courts with unprecedented powers. While crediting the theorists for the sparkling quality of their thoughts, Judge Wilkinson argues they will slowly erode the role of representative institutions in America and leave our children bereft of democratic liberty. The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.
(source: Nielsen Book Data)9780199846016 20160607
Law Library (Crown)
xiv, 200 p. ; 22 cm.
  • 1. Active Liberty-- 2. Freedom of Speech-- 3. Federalism-- 4. The Right of Privacy-- 5. Affirmative Action-- 6. Statutory Interpretation-- 7. Administrative Law-- 8. Purposive Interpretation-- 9. A Broader Application.
  • (source: Nielsen Book Data)9780199227075 20160528
What role should courts play in a modern democracy? How should fundamental provisions of a democratic constitution be interpreted? These questions have divided constitutional theorists and those responsible for interpreting and applying constitutional law including, notoriously, the current U.S. Supreme Court. Justice Breyer is the most prominent liberal voice in the Supreme Court, this book distils his experience of interpreting the U.S. constitution and outlines a general liberal theory of the role of constitutional courts. Breyer argues that the primary role of a democratic constitution is to preserve and encourage 'Active Liberty': citizen participation in shaping government and its laws. The book argues that promoting active liberty requires judicial modesty and deference to legislative bodies; it also requires the recognition of the changing needs and demands of the populace. Breyer makes a powerful case against treating constitutions as a static guide for a world that has passed into history.Throughout the book, active liberty is employed as a foundational concept to illuminate the interpretation of key constitutional questions, and recent Supreme Court controversies, such as the scope of free speech and racial equality protection. For this revised, international edition of the book, Justice Breyer extends his discussion of democratic theory to examine topical questions in European constitutional law, including the legitimacy of the European Union, religious freedom under the European Convention on Human Rights.
(source: Nielsen Book Data)9780199227075 20160528
Law Library (Crown)
xiii, 159 p. ; 24 cm.
In this essay, Judge Antonin Scalia argues that the common-law mindset, although approriate in its place, is not suitable for statutory and constitutional interpretation. In exploring the neglected art of statutory interpretation, he urges judges to resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawyers meant, rather than by what the legislature actually promulgated. He argues that eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia proposes that the notion of an ever-changing Constitution is abandoned and that attention is paid to the Constitution's original meaning. Although not subscribing to the "strict constitutionalism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the B.
(source: Nielsen Book Data)9780691026305 20160528
Law Library (Crown)