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Restoring the Lost Constitution: The Presumption of Liberty

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Randy Barnett has written a fascinating and well-argued book. The book is composed of four parts: "Constitutional Legitimacy," "Constitutional Method," "Constitutional Limits," and "Constitutional Powers." The first part takes seriously Lysander Spooner's arguments in "No Treason: The Constitution of No Authority" that the Constitution is not and cannot be binding on people who did not explicitly consent to it- the "we the people" in the preamble is a fiction. Barnett argues for a view that a Constitution can be legitimate and binding in the absence of explicit consent only if it incorporates appropriate limitations on government to safeguard individual rights. This is the most philosophical section of the book, and I found it the weakest--while I think Barnett had good arguments against tacit or implied consent, I'm not sure his alternative really provides the legitimacy it purports to, nor am I particularly persuaded by his account of natural rights. (I am a strong proponent of individual rights, but I am unconvinced that they are grounded in nature, as opposed to being justified by a combination of empirical fact and subjective values.)
In Part 2, "Constitutional Method," Barnett argues that the Constitution is properly interpreted by a form of originalism based on original meaning, as opposed to original intent. He argues persuasively that the arguments against originalism which target original intent do not work against original meaning. I found this part much more persuasive than Part 1, and I think he has formulated a consistent and rational methodology of Constitutional interpretation that takes seriously what is written in the text.
Part 3, "Constitutional Limits," is where things start to get really interesting. Barnett examines the judicial history of the "necessary and proper" clause of Article I, Section 8, and argues that the Supreme Court made a wrong turn way back in 1819 in McCulloch v. Maryland by adopting an expansive interpretation of this clause where "necessary" meant "convenient" and "proper" was virtually ignored. He extensively reviews contemporary sources to argue for the meaning of this clause and that it requires judicial review of laws to make sure they are grounded in specific powers granted in the Constitution. Barnett begins this section with a quote from Justice Clarence Thomas in FCC v. Beach Communications, showing that Thomas has bought completely into the view that there is a "presumption of constitutionality" for acts of the legislature, whereas Barnett favorably cites Justice Stevens' response to Thomas that "judicial review under the 'conceivable set of facts' test is tantamount to no review at all."
Barnett also argues that the "privileges and immunities" clause of the 14th Amendment was used incorrectly (too narrowly) in the 1873 Slaughter House cases, but the "due process" clause of the same Amendment was used correctly in Lochner v. New York in 1905. He argues that both federal and state legislatures which act to limit the liberties of the people need to show that it is within the enumerated powers of Congress or within the police powers of a state, respectively, and otherwise overturned by the courts.
Finally in this section, Barnett turns to the meaning of the Ninth Amendment, which reserves unenumerated rights to the people, and takes issue with Footnote 4 of the 1938 case United States v. Carolene Products. The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation. The requirement of a specific enumerated right was then expanded in Griswold v. Connecticut by allowing additional rights not specifically enumerated, but found in "emanations and penumbras" from the other rights. Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights. (E.g., a regulation can restrict time/manner/place of speech, but not content; speech itself cannot be prohibited on the basis of content without improperly infringing the right.) Barnett gives an entire chapter on the presumption of liberty, and how to identify rights that have not specifically been enumerated.
In Section 4, "Constitutional Powers," Barnett looks at the commerce clause of Article I, Section 8, and argues that the Supreme Court went wrong with Gibbons v. Ogden in 1824 by equating "commerce" with "intercourse" and allowing Congress to regulate that in every case where it merely affects more than one state. Barnett argues, again by citing a wide variety of contemporary sources, that "commerce" was distinguished from "manufactures" and "agriculture," and was synonymous with "trade." Thus, Congress has no legitimate power to legislate regarding manufacturing and agriculture, only regarding trade between states, with foreign nations, and with the Indian tribes.
He also includes a chapter on the police powers of states and what they can constitutionally do on his account, and another on the application of his view to judicial doctrines and cases. He argues that this yields something which is rather libertarian, but not entirely so.
Barnett puts forth a position which takes the language of the Constitution seriously, and which would require us to be explicit about making changes to it when we find that it has become out of date, rather than allowing a flexibility to the language to such an extent that the original wording no longer has any meaning at all. He spells out a view in which there is real content to judicial review, justified directly by the language of the Constitution, and in which the court has strong checks and balances against the legislature and the executive (and vice versa).
This book deserves to be widely read and taken seriously by those in the judiciary.

Like an grand old building that has been allowed to become run-down and dilapidated through neglect and abuse, the US Constitution of today is not the one meant by its authors. Randy Barnett, professor of law at Boston University, lays out a plan to salvage it in his latest book Restoring the Lost Constitution: The Presumption of Liberty. He chronicles the Supreme Court's two hundred-year steady hollowing of the principles underpinning the US Constitution and then proceeds to build a case on how to salvage it.

James Madison believed, as did most Founding Fathers, that the foundation for a just and moral constitution lay in one based on the presumption of liberty. Man's dark side of exploiting and imposing his will on others was well known to the Founders. They incorporated constructs into the Constitution to impede special interests to act upon these impulses. Inevitably, there arose those who began to regard such safeguards as roadblocks to "desirable" results.

And the way to get those results is to delegitimate the Constitution's principles by viewing the document as a "living" one. Barnett strikes back in the first few chapters to build a novel case for a binding adherence to the founding principles of liberty. He argues that constitutional legitimacy cannot be grounded simply on the basis of the "consent of the governed": "...is one morally obligated to obey any law that is enacted according to constitutional procedures?" (p. 12). Furthermore, how can one bind a citizen to a constitution agreed to by neither himself nor his ancestors? The answer: ground the constitution in the moral force of natural rights.

The Founders viewed natural (liberty) rights as those inherent rights people held apart and beyond the reach of government. Without such bounded freedom, there can be no "society in which people can pursue happiness, and in which civil society can enjoy peace and prosperity."(p. 82). But such a concept of liberty displeases those, both on the left and the right, who desire to commandeer government's near monopoly on violence to achieve desired ends.

Barnett notes that although "originalism" has taken a ferocious beating in the past few decades, a resurgent wave of scholars, including himself, has come to the rescue. Instead of making a case on "original intent", which he finds wanting, Barnett retrieves comments by both Madison and Spooner to argue for "original meaning", an interpretation of the Constitution as understood by the general reader at the time of enactment. And, as Barnett notes, having a constitution written down serves a clarifying function to provide "good evidence of what terms were actually enacted when later they might be disputed"(p. 101). This "locks in" lawmakers from altering the law to which they themselves are bound.

The responsibility for enforcing such restrictions lies with the judiciary branch. Barnett argues that though the Constitution is not explicit, the overwhelming historical evidence supports the judiciary's power to nullify unconstitutional laws. Thus, the burden of proving constitutionality resides in the legislature. The existence of the Necessary and Proper Clause, the 14th Amendment, and the Ninth Amendment all support this view. However, the Supreme Court, from its beginning under John Marshall, has steadily shifted its stance to one of "presumption of constitutionality." That is, the Court assumes legislation as constitutionally sound except when an enumerated right is expressly violated. This deference to the legislature has allowed a " ... system of islands of powers in a sea of individual liberty rights at both the state and national levels .... " to become "... islands of rights in a sea of state and federal power."

Barnett reviews the Court's corruption of clauses meant to restrain government power in landmark decisions to suit convenience: Necessary and Proper Clause - McCulloch v. Maryland (1819), Commerce Clause - Gibbons v. Ogden (1824), Privileges or Immunities Clause of the 14th Amendment - The Slaughter-House Cases (1873), Commerce Clause again - Wickard v. Filburn (1942), and the Ninth Amendment - United Public Workers v. Mitchell (1947).

Barnett points to Justice Kennedy's revolutionary decision in Lawrence v. Texas (2003), which rejects the state of Texas' case for supporting its ban on sodomy, as the way out of the current situation. Kennedy based his argument not on the right of privacy, but on the right to liberty as found in the 14th Amendment. Based on the Ninth Amendment, Barnett's prescription is to return the philosophy of judicial review to its rightful origins: the presumption of liberty. Barnett concedes the need for reasonable restrictions on rightful acts; for example, when such regulations "are shown to be necessary to prevent the future violation of rights of others." When a court is faced with a hard case, he feels that in order for the rule of law to be maintained, society must accept the outcome even when the ending is not a "happy" one.

I have two critiques. The first is unavoidable. Barnett is not aiming for the lay reader, but to those familiar with Constitutional debates on originalism. Thus, he assumes a familiarity of the Constitutional issues involved that the general reader will unlikely possess, and thus, keep the book from reaching the wider audience it deserves. Despite difficulty appreciating the nuances of the argument, such a reader should still be able to grasp the central theme. Second, I wish Barnett had spent a little more time shoring up the moral moorings of natural rights philosophy. By doing so, his case for liberty rights would pack more of a punch in the moral debate.

Nonetheless, Randy Barnett has come up with a great book which I hope isn't his last in this much needed debate. He ends with an optimistic view that all is not lost. That grand old house called the US Constitution, long neglected and run down, is waiting for citizens to breath new life into it and return it to the greatness envisioned by its architects. Now, all is left is for enough republican-spirited citizens to make it happen.

For those who love liberty and want to be better informed about how our Supreme Court has eroded our liberties "Restoring the Lost Constitution" is a book you must read. Barnett, the author, is the Austin B. Fletcher Professor at the Boston University School of Law. In the Preface he recounts how as a student he was disturbed by what he learned in his Constitutional Law class. On the basis of that experience he decided to specialize in contract law where the practice of law was more rational. There he remained until he was tenured. He "came out of the closet" when quite by accident he was asked to give a short talk about a constitutional law issue -- a fascinating story in its own right.

Barnett brings his considerable knowledge and experience to bear on constitutional law in "Restoring the Lost Constitution." The first part of the book takes up the subject of constitutional legitimacy. Have you ever had an argument with someone who says, "I never signed onto the constitution, so I'm not bound by it?" Barnett takes that person's side and demolishes one counter argument after another. In reading his arguments I became more and more frustrated. I thought to myself what do I have to tell this guy? The constitution is in place; if you don't like it, make the most of it. But Barnett is much more gentle than that, in part I suppose, because he has an ace up his sleeve. He then figuratively turns to the person he was defending and asks a simple question. "What is the foundation for your belief that you are not bound in conscience to the constitution?" When I got to that point I said to myself, "Gotcha!!" Perhaps you can guess what the answer was and how Barnett uses it, but I am not going to spoil your fun by revealing it. Barnett then proceeds to demonstrate with impeccable logic that the person in question cannot offer that answer without knocking the foundation out from under his own objection to being bound in conscience to a properly formed constitution.

He then takes up the subject of constitutional method. Here he makes the vital distinction between intention and meaning. One simply cannot be a mind reader who ferrets out the intentions of the framers of the constitution. In fact, in the tradition of contract law the intentions of the framers is not even primary. What is much more important is the understanding of the ratifying assemblies as to what they were signing onto. However, there is something akin to original intention which is really the only proper way to interpret the constitution. That is original meaning. Later on in the book he takes up the much abused Commerce Clause and examines the original meaning of "commerce", "to regulate", and "among the several states." He looks at the definition of commerce (for example) in Samuel Johnson's "Dictionary of the English Language. He examines every instance of the word in records of the Constitutional Convention, "The Federalist", records of the ratification conventions, the constitution itself, and seventy-two years of "The Pennsylvania Gazette." Even if all these documents are available electronically, this is a monumental task.

In the next part Barnett expounds on constitutional limits. He examines the meaning of the Necessary and Proper Clause and the Privileges or Immunities Clause. He shows how the constitution was turned inside out by the infamous "Footnote Four" in the 1937 "Carolene Products" case. In the concluding chapter he addresses the books subtitle in depth in a chapter entitled "The Presumption of Liberty: Protecting Rights without Listing Them."

The final part addresses constitutional powers and discusses the meaning of the Commerce Clause, the proper scope of state power, judicial doctrines and application to cases. The last short chapter is entitled "Restoring the Lost Constitution."

Barnett writes with brilliance and clarity. If, like me, you have trouble with legal language or 18th Century speech, not to worry. When he inserts a quote, more often than not, Barnett anticipates your problems and explains the author's message in simple straightforward language. The only negative I encountered was his use of the feminine instead of the traditional masculine third person. That's a little disorienting to me, but it occurs only five or six times in the entire book.

In reading this book I experienced a new respect, bordering on reverence, for our constitution and the framers who choose their words so carefully. I also gained a new respect for the law and those who practice it as it should be, could be, and perhaps one day again in the future will be practiced.

If you want to twist the constitution to fit your pet views of how things ought to be, this is not the book for you. On the other hand, if you have a consistent non-contradictory devotion to liberty and are willing to let the chips fall where they may, then this book along with the United States Constitution restored to it's original meaning is definitely for you. Whatever you may feel you have lost in the process is more than compensated by the tremendous gains.

What should we do with the Constitution? In this excellent work, Randy E. Barnett proposes a predominantly libertarian answer to that question. (I say 'predominantly' because Barnett is quite clear-eyed and honest in his recognition of the handful of nonlibertarian elements in the document.)

Barnett initially addresses the question why we should consider ourselves bound by the Constitution at all, since the idea that it really speaks for every single one of 'the People' for all time is clearly a fiction. His answer will surprise everyone but libertarians: we should regard ourselves as bound by the Constitution because, insofar as, and so long as it is used to enact those laws that preserve and protect our liberty rights.

On this foundation Barnett develops a theory of Constitutional interpretation based on 'original meaning' (carefully distinguished from 'original intent' as originally defended by Bork and Meese). The heart of his thesis is that, wherever possible, we ought to prefer a reading that comports with the public understanding of the Constitution at the time it was ratified (which may not, of course, be a precise match for the 'intent' of the framers). He has James Madison on his side here. (Of course a similar argument applies to the various Amendments as of the times _they_ were ratified, so Barnett's 'original meaning' isn't a haven for those who want to undo the Fourteenth Amendment.)

Barnett then applies this interpretive approach to the judicial power in order to demonstrate that judicial review -- specifically including the power to nullify unconstitutional laws -- was part of the original understanding of this power. This chapter is quite well argued and, in my view, altogether conclusive on the issue. It's also, unfortunately, quite necessary, because there are people calling themselves 'conservatives' who seem to think judicial review was conjured out of the ether in _Marbury v. Madison_ (1803). (Mark Levin's recent _Men In Black_, for example, is hopelessly muddled on this issue, as Levin fails to distinguish carefully among judicial review, a judicial veto, and judicial supremacy. See my review of that book for further criticism.)

Having established that judicial review is part of the original Constitutional scheme (and part of the Constitutional meaning of 'due process'), Barnett then applies his original-meaning methodology to determine just how the Supreme Court ought to interpret various portions of the Constitution in reviewing the legitimacy of legislative enactments. The Necessary and Proper Clause turns out, on his analysis, to delegate to Congress only the power to enact legislation strictly requisite for the exercise of its enumerated powers ('necessary'), and only to the extent that such legislation does not infringe liberty rights ('proper'). The Fourteenth Amendment's Privileges or Immunities Clause turns out to bind state governments to the entire Bill of Rights. (See Michael Kent Curtis's excellent _No State Shall Abridge_ for a fine analysis that reaches the same conclusion.) And the Ninth Amendment turns out to protect all liberty rights of any kind, whether enumerated or not.

Barnett is then able to arrive, in consequence, at his central thesis: the twentieth century's 'presumption of constitutionality' should be reversed, and the Supreme Court should conduct judicial review on the basis of a 'presumption of liberty'. Instead, that is, of presuming that (say) a piece of challenged Congressional legislation is Constitutional unless an opposing party can show otherwise, the initial burden should be on the government to show why such legislation _is_ 'necessary and proper'.

Barnett then applies his analysis to the Commerce Clause and the police powers of the states, concluding that the scope of each is far narrower than recent jurisprudence allows. A closing chapter looks at a few 'hard cases' (though hardly, of course, an exhaustive list).

The analysis is excellent throughout. As he did in _The Structure of Liberty_, Barnett has thrown down a gauntlet here and I can't imagine what a successful response might look like.

There are minor points I could nitpick. (For example, Rep. John Bingham, drafter of the original version of the Fourteenth Amendment, was from Ohio, not -- as Barnett says on p. 193 -- New York.) The index could also use a lot of work; a random spot-check turns up a number of problems. (For example, a reference to Richard Epstein that actually appears on p. ix is indexed for page xi; Michael Kent Curtis appears on pages 61, 62, 108, 115, 203, and 348 but is indexed only for p. 61; some references -- e.g. to Henry Veatch, whose excellent _For An Ontology of Morals_ Barnett cites on p. 83 -- aren't indexed at all; and a reference to Murray Rothbard on p. 346 is indexed for p. 246. And yes, 'anal-retentive' _does_ take a hyphen; why do you ask?)

More seriously, perhaps, I'd have liked to see a bit more analysis of 'hard cases' that are controversial even among those inclined toward libertarianism. Even on Barnett's understanding of the Ninth and Fourteenth Amendments (which I think is utterly correct), it's not clear that abortion falls within the scope of retained liberty rights (as the interests of another party are pretty obviously adversely affected). Even here, though, Barnett's analysis is of tremendous help in posing the question correctly, whatever one's views on the answer.

It's a brilliant book from start to finish and it's probably the single best volume of Constitutional legal theory currently available; naturally there's lots of really cool stuff in it that I haven't even begun to summarize here. It's also a wonderful antidote to the spate of recent 'conservative' Court-bashing literature that persistently misidentifies the problems and tosses out the Constitutional baby with the bathwater.

If the Constitution is of interest to you, don't miss this one. By the way, Barnett is also the coauthor of a brilliant _amicus curie_ brief submitted by the Institute for Justice in _Lawrence v. Texas_; look that up too.

Attorney Randy Barnett began this book as an answer to Lysander Spooner's infamous _No Treason_ essay of 1870, in which Spooner not only pronounced slavery inherently unconstitutional and decried the classification of consensual vices as crimes, but also took the "natural rights" argument to its logical extreme and argued that since no currently living individuals (1870) were alive at the time of the Constitution's ratification (1787), then therefore the Constitution has ceased to have any authority. Radical in its time and just as difficult to grapple with today, Barnett starts from _No Treason- and builds a fairly comprehensive argument in favor of the Constitution's enduring legitimacy, the methods by which it is applied, its rigid limits, and the overall scope of its powers. For a change the "villian" behind the Constitution's fading relevance is not made out to be Congress or the President, but, according to Barnett, a steady succession of indifferent and politically-motivated Supreme Court justices that have "rendered toothless" such provisions as the Commerce Clause, the Necessary And Proper Clause, and the Ninth and Tenth Amendments in their entirety. Barnett includes a number of personal anecdotes from his own law career throughout, including a heartbreaking instance where he unsuccessfully tried to argue the Ninth Amendment, lost the case, and found to his dismay that among legal circles it had become something of a constitutional joke (another potent motivator behind the book's creation). Naturally there is a sense of lamentation in these final sections, but though he never brings the narrative back to the subject of refuting Spooner's assertions, Barnett manages to keep things optimistic by proposing in every instance a universal litmus test: a Presumption Of Liberty measuring gauge that is weighted to always err on the side of the citizens, giving their liberties the benefit of the doubt whenever a governmental law or regulation seems, on the surface, too restrictive. It is a refreshing legal application of the well-known "hold the reins loosely" principle of good business management.

Having read most of the current batch of constitutional scholars, and while respectful of their opinions, I believe that none reach the level of Barnett's understanding of the Constitution and the importance his thesis is to all Americans if we want to protect our freedoms from those internally who would deny we even possess rights as individuals.

Barnett starts off by providing a strong, though subjective, philospohical basis for the legitimacy of government power over citizens claiming they are truly free. Because this is the only subjective topic reviewed in the book, I've been striving since he published this book to find evidence that rationally or empirically defeats his thesis, I've found none nor have I found anyone with a superior thesis, which is, paraphrased: Legitimate government power over a free populace acheives legitimate consent only as long as its power protects the greater rights of its populace over the lesser rights of others. For example, police power protecting citizens' property against those that would steal other's property.

Barnett goes on to make a bullet-proof case that original meaning is the only legitimate interpretative approach and using that approach, what does the constitution mean, especially in terms of what rights we reserve and what powers to gov't have we granted.

Constitutionalist theorists like Bork who claim originalist roots that claim we need to use framer intent as filtered by him because the framers didn't provide ample evidence of their meaning is smashed by Barnett. Not only does Barnett provide convincing empirical evidence of the original meaning of the Constitution and many of its important principles and clauses; Barnett even provides ample evidence of the meaning as interpreted by the State Ratifying committees and the understanding by the populace as expressed in the newspapers of the day. I won't divulge here what Barnett finds since i highly recommend purchasing the book and finding out for yourselves.

While reviewing the original meaning of the constitution, Barnett provides a surprising twist, he provides very few modern cases that compare the court's rulings to the original meaning. For me at least, that provided me with little chance to stereotype Barnett into an ideological camp. I found this initially frustrating because it forced me during the reading of this section of the book to spend more thinking time understanding his points, but at the end of this section, I was rewarded by embracing the concepts he promotes on their merit by not allowing me to filter his arguments through my own ideological prism.

The end of the book does have Barnett reviewing many modern consitutional issues and applying the original meaning as found by Barnett against these cases. The reader will be surpised when media pundits label Barnett as a conservative scholar, as he often is, when in fact his thesis easily destroys any justicification social conservatives have to leverage government power over the rights we reserve as free people.

The reader will also be surprised as to why Democrats don't embrace these concepts more since their political platform to protect individual rights is so well supported by Barnett's findings when studying our founding. I can only speculate that by embracing Barnett's positions, the Democrats would have to fight to increase government power through constitututional amendments to legitimatize regulatory power to protect the environment or business beyond commerce. My only criticism of his book is that he didn't address the Roe and Casey rulings, where I would be most interested in understanding his position - I can only speculate that he resisted commenting in order to not be stereotyped and labeled.

In summary, if you buy one book to better understand the current culture war over the legitimate rights of citizens relative to the granted power we've extended government, this is the book. If you are a dedicated student of constitutional law, than I guarantee this book will become of the most valuable books in your collection - Barnett is that good.

In this excellent book, an academic page turner, Barnett resurrects and reconstructs the commerce, necessary and proper clause and the ninth amendment and the privileges and immunities clauses as meaningful, judicially enforceable restrictions on
governmental powers. Barnett takes rights seriously and points out that the Bill of Rights is merely the tip of an actually enacted iceberg of rights that the courts are bound by the constitution to enforce--but do not. Barnett calls on courts to do their duty by these clauses and points out that the refusal of courts, to meaningfully protect rights in the name of judicial restraint is anything but. Barnett exposes the narrowness of the current debate between so called judicial conservatives and judicial liberals by pointing out that all now subscribe to a much narrower definition of rights that the constitution actually provides. For Barnett much of importance in the constitution has simply been discarded by the courts because it gets in the way of the kind of government people now think they want. The great service of Barnett's book is that by showing what has been lost or actually deliberately thrown away he shows the way back if we choose to take it. The larger question is not only whether we should take rights as seriously as the framers but whether we should take written constitutions as seriously as they did as absolutely essential to the preservation of liberties.

I found this book very enjoyable as well as informative. I learned more from this book than I did from an entire semester of constitutional law in law school. Barnett has a way of brilliantly explaining a case, good and bad, like no one else can. He made me look at decisions, which I have always assumed were correct, in an entirely new way. For example, his analysis of McCulloh v. Maryland really demonstrated the flaws of Chief Justice Marshall's logic. His historical analysis is vivid, entertaining, and educational. Professor Barnett also spends considerable time on a very important, but often ignored aspect of constitutional theory: why the is constitution binding? He demonstrates that it is not because any type or form of consent, which leads him to his reason for the constitution being binding. Unfortunately, Barnett does not discuss any of the other grounds for why the constitution is argued to be binding (i.e. the liberal leaning arguments, which lead to a 'living' constitution).
As other reviewers have noted, Barnett gives a new argument and new form of textualism informed by original meaning than others before him. His version has numerous benefits to the more 'conservative' arguments: 1)it protects individual rights instead of enabling governmental authorities to violate them; 2) it doesn't rely on consent, and yes, 3) it produces better results. But above all, Barnett acknowledges the limits of textualism and discusses how a judge should deal with such limitations. Something Scalia never admits in his book on constitutional interpretation.
All and all, this is the most entertaining and perhaps worthwhile book that I've read on the constitution (and I've read a lot). I highly recommend it.

Restoring The Lost Constitution: The Presumption Of Liberty by Randy E. Barnett (Austin B. Fletcher Professor, Boston University School of Law and Senior Fellow at the Cato Institute) sharply warns that the U.S. Constitution, as taught in school textbooks, is not the true foundation of American law and government as enforced today by the Supreme Court. Claiming that court decisions have effectively cut holes in the parts of the Constitution that protect liberty from the power of the government - rendering the the Commerce Clause, the Privileges or Immunities Clause of the Fourteenth Amendment, the Necessary and Proper Clause, and more effectively without any bite - Restoring The Lost Constitution is an alarming, well-researched and gravely serious warning of an immediate and pervasive threat to human rights in America, calling upon the reader to take action before it is too late.

Restoring the Lost Constitution did a pretty good job at establishing the Presumption of Liberty which the courts ought to be employing when rendering their decisions. However, I disagree with the basic premise of the book which is that the Constitution is binding upon all in conscience, whether or not you consent to be governed. I think that if federal courts adopted Barnett's premise of adjudication then the results of the courts would be a lot more consistent. Many arguments over semantics and foundations of word meanings at the time the Constitution was adopted may be interesting for lexicographers and etymologists, but this really wasn't my bag.