Restoring the Misplaced Structure: The Presumption of Liberty

The U.S. Structure discovered in class textbooks and beneath glass in Washington just isn’t the one enforced at present by the Supreme Courtroom. In Restoring the Misplaced Structure, Randy Barnett argues that for the reason that nation’s founding, however particularly for the reason that Thirties, the courts have been reducing holes within the authentic Structure and its amendments to remove the components that shield liberty from the ability of presidency. From the Commerce Clause, to the Needed and Correct Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Modification, the Supreme Courtroom has rendered every of those provisions toothless. Within the course of, the written Structure has been misplaced.

Barnett establishes the unique that means of those misplaced clauses and provides a sensible approach to restore them to their central function in constraining authorities: adopting a “presumption of liberty” to provide the good thing about the doubt to residents when legal guidelines prohibit their rightful workout routines of liberty. He additionally supplies a brand new, practical and philosophically rigorous idea of constitutional legitimacy that justifies each decoding the Structure in accordance with its authentic that means and, the place that that means is obscure or open-ended, construing it in order to higher shield the rights retained by the individuals.

As clearly argued as it’s insightful and provocative, Restoring the Misplaced Structure forcefully disputes the traditional knowledge, posing a robust problem to which others should now reply.

This up to date version options an afterword with additional reflections on particular person well-liked sovereignty, originalist interpretation, judicial engagement, and the gravitational drive that authentic that means has exerted on the Supreme Courtroom in a number of latest instances.