Restoring the Lost Constitution, Not the Constitution in Exile

7 Pages Posted: 16 Mar 2012 Last revised: 30 May 2012

Date Written: March 15, 2012


The Constitution we have now is redacted. Any practicing lawyer will tell you that you cannot go into court and argue the Ninth Amendment. You cannot go into court and argue the Privileges or Immunities Clause. Until United States v. Lopez you could not argue the Commerce Clause; after Gonzales v. Raich, it is not clear you can argue the Commerce Clause anymore. You cannot argue the Necessary and Proper Clause. You cannot argue the Republican Guarantee Clause. You cannot argue the Second Amendment outside the Fifth Circuit. Whole sections of the Constitution are now gone. This is the lost Constitution. It is not a set of pre-1937 results; it is a set of post-1789 provisions of the Constitution that are, for all practical purposes, dead letters. Identifying the original meaning of these lost clauses and how their restoration would affect the Constitution as a whole is what Restoring the Lost Constitution is about. However it is labeled, this is a substantially different project than the one that is characterized - mischaracterized - as the Constitution in exile movement.

Keywords: Constitutional law, Constitutional history

JEL Classification: K00, K1, K3

Suggested Citation

Barnett, Randy E., Restoring the Lost Constitution, Not the Constitution in Exile (March 15, 2012). Fordham Law Review, Vol. 75, 2006; Georgetown Public Law Research Paper No. 12-050. Available at SSRN:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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