Restoring the Lost Constitution by {author}: summary and why it matters

What it argues

Barnett contends that the Constitution, properly understood, creates a government of delegated and enumerated powers, and that a long series of judicial decisions, starting in the 1930s, has set that design aside. He argues that the Ninth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment and the original limits on the Commerce Clause have been neglected.

He distinguishes between a presumption of constitutionality, which defers to legislatures, and a presumption of liberty, which would require government to justify its restrictions on individual freedom. He says that original meaning, rather than the intent of drafters, is the correct approach, and that the legitimacy of the Constitution depends on how well it protects natural rights.

The argument has a libertarian flavor and sets him apart from the more deferential kind of originalism associated with Bork.

Why it matters

The book advanced the libertarian wing of constitutional law, and Barnett argued the challenge to the Affordable Care Act's individual mandate that reached the Supreme Court in 2012. It is a reminder that originalists differ on how far to defer to legislatures.

About the author

Randy E. Barnett (born 1952) is a professor of constitutional law at Georgetown University Law Center. He argued before the Supreme Court in Gonzales v. Raich on medical marijuana and was a lead lawyer in the challenge to the Affordable Care Act's individual mandate. He also wrote The Structure of Liberty, a work on legal theory and political philosophy.

Who should read it

Readers of constitutional law who want to see a debate within originalism.