Barnett and the Constitution We Have Lost

44 Pages Posted: 15 Jul 2004  

Stephen M. Griffin

Tulane University Law School

Date Written: June 2004

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.

Keywords: Constitutional law, constitutional theory, libertarianism, originalism

Suggested Citation

Griffin, Stephen M., Barnett and the Constitution We Have Lost (June 2004). Tulane Public Law Research Paper No. 04-01. Available at SSRN: https://ssrn.com/abstract=565024 or http://dx.doi.org/10.2139/ssrn.565024

Stephen M. Griffin (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States
504-865-5910 (Phone)
504-862-8857 (Fax)

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