Barnett and the Constitution We Have Lost

Abstract

This is a review essay of Randy Barnett's book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004). I consider Barnett's libertarian theory of constitutional law in three stages. In Part I, I criticize the external theory of political legitimacy that Barnett applies to the Constitution. I argue that this theory had nothing to do with the actual reasons the Constitution was accepted as legitimate when it was ratified. In Part II, I focus on Barnett's theory of constitutional interpretation and his account of the necessary and proper clause, the foundation of the presumption of liberty. I also critique Barnett's treatment of the Lochner era. In Part III, I examine Barnett's approach to governmental power under the Constitution, particularly with respect to the commerce clause and the state police power.