Restoring the lost constitution: the presumption of liberty [Updated edition] 9780691123769, 0691123764, 0691115850, 9781306129473, 1306129478, 9781400825844, 1400825849, 9781400848133, 140084813X, 9787770931130, 7770931134

172 13 517KB

English Pages xv, 430 pages Year 2014;2012

Restoring the lost constitution: the presumption of liberty [Updated edition]
9780691123769, 0691123764, 0691115850, 9781306129473, 1306129478, 9781400825844, 1400825849, 9781400848133, 140084813X, 9787770931130, 7770931134

Author / Uploaded
Barnett
Randy E

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

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