In Restoring the Lost Constitution, Randy Barnett sheds light on an important and dangerous trend in American Law. What is that trend? The gradual weakening of the Constitution’s protections on liberty. Or, as Barnett describes it, the gradual snipping away and spilling of ink on the sections of the Constitution that limit government action and defend what he terms “The Presumption of Liberty.”
The government is erasing our liberty. Not through an outright seizure of power, as the tyrants of the past might have done, but through insidiously erasing the sections of the Constitution with which they disagree. That’s the point of Restoring the Lost Constitution and it’s a fact that Americans need to remember.
If you’re like me and think that being able to understand and analyze the Constitution is important, or just want to see how the government has gradually stripped you of your liberty, then Restoring the Lost Constitution is a book you need to read. Immediately. Hopefully, this review of it will show you why.
Summary of Restoring the Lost Constitution
Restoring the Lost Constitution is a dense book. In it, Barnett wastes no time making the concepts he discusses easier to understand. Instead, he just jumps right in and begins going over why we should follow the rule of law created by the Constitution, what the founders originally meant, and how important sections of it have been misconstrued or ignored as courts, especially the post-New Deal Supreme Court, sought to give the government ever more power.
First, in Part I, Barnett discusses why the Constitution is legitimate and why Americans are obliged to follow its provisions. His conclusion is that the Constitution is a legitimate government document not because of popular sovereignty, which he deems the “myth of ‘We the People,'” but rather because it is what protects our natural rights and individual liberties.
Then, in Part II, Barnett provides his explanation of what he thinks is the best method of dissecting and understanding the Constitution: new Originalism. This section is full of his discussion on what the Founders originally meant by different words and phrases, how we know that, and what it’s implications are for today. Also, he discusses the doctrine of Judicial Review, which those of you who read my review of Without Precedent, a biography of John Marshall, certainly already know about.
Next, in Part III Barnett gets to the real purpose of Restoring the Lost Constitution, which is giving the reader information on how the Constitution was designed to protect individual liberty. The Necessary and Proper Clause, the Privileges and Immunities Clause, the 9th Amendment, and the Constitution’s Presumption of Liberty are all analyzed and Barnett gives the history of how federal courts have interpreted them over the years, especially since the New Deal.
Afterward, in Part IV, Barnett finally provides what I think is the most useful and crucial information in the book, which is what the government’s Constitutional Powers are. Or, in other words, what the proper role of government is. As you might know, the federal government’s power in America in matters outside of military and legal matters stems largely from the Commerce Clause and its police powers. Barnett, ever the defender of our rights, uses this section to fill the reader in on how courts have gradually done away with the limits on that clause and those powers as they acceded to the government’s ever-present demands for more power.
Finally, in the Conclusion and Afterword sections of Restoring the Lost Constitution, Barnett gets to the material I found the most interesting. In those sections, he gives his full opinion on how liberty in the US has been lost, why the Constitution was originally designed and interpreted as what we might view as a libertarian document, and what states and individuals could do to regain their lost power.
Overall, Barnett provides a comprehensive study of the legitimacy of the Constitution and how it should be interpreted in Restoring the Lost Constitution. He also excellently describes how past courts have misconstrued certain sections in a way that empowers the government and hurts citizens.
My Analysis of Restoring the Lost Constitution
Restoring the Lost Constitution isn’t a particularly fun book to read. While not overly long, it is dense and full of legalese, so I can’t really recommend it to those of you that are more fans of fiction than intellectually stimulating but somewhat draining books.
But, that’s not to say it’s a bad book. I love reading about the founding period and the ways in which the government has wronged us and stolen our liberty, so Restoring the Lost Constitution kept my attention through the insightful analysis in it. I’ll put it this way- if you read The Wealth of Nations or The Federalist Papers, two books I recently recommended people read during quarantine, then Restoring the Lost Constitution is the book for you. You’ll love it.
On a completely different note, there were two other aspects of Restoring the Lost Constitution that stood out to me and that I thought would be worth sharing here.
The first is the level of Barnett’s research and the depth of his citations. Practically every page has at least five footnotes from sources spanning The Federalist Papers and Anti-Federalist Papers to modern-day law journals and New Deal era opinion pieces. Whatever your opinion on the arguments Barnett makes, I think it is indisputable that his book is well-researched and his arguments well-supported. That makes his arguments far more convincing and, I think, could potentially help him appeal to those that might be biased against him and the presumption of liberty from the outset. Doing one’s research is always a good decision, and it certainly pays off in Restoring the Lost Constitution.
The second is how easily Barnett is able to show the scale of the death of individual liberty in America. His description of the Constitution fits in perfectly with the type of government generally described as ideal in The Libertarian Reader and the opposite of that described in Leviathan.
But, thanks to the leftist Supreme Court judges sent to that body by progressives, as Jonah Goldberg describes in Liberal Fascism and I wrote about in my article on why we need Amy Coney Barrett in SCOTUS, that shield for our rights, especially our property rights, has been eroded down to almost nothing. Now, the government can restrict our liberty in the name of public safety, listen in on our phone calls, carry out absurdly unconstitutional “gun buybacks,” and regulate anything and everything under the sun. That’s not what the founders intended.
America is currently dealing with a crisis of governance. I’m not saying I’m against President Trump, I support him. That’s why I wrote about the gift his Presidency is both yesterday and on Christmas. But, regardless of his successes, our government today is absolutely terrible. Sure, Trump is a better president than most of our recent ones; they were all absolutely horrendous, especially Bush and Obama. But still, the government needs to become significantly more amenable to freedom. Because right now, the American government is not at all what our Founding Fathers wanted or envisioned.
It behaves unconstitutionally, taxes and spends far too much, can’t win wars but involves itself in many foreign affairs, and tends to get far too involved in our lives. That needs to end. The PATRIOT Act, welfare, deficit spending, interventionism, gun control, all of it. Those programs are not constitutional, are overly expensive and are thus bankrupting the republic, and, worst of all, they constrain liberty in America. No one is free if each person’s earnings are taken and redistributed to those that do not work as hard or who are not as smart; robbing Peter to pay Paul is not an effective or just form of governance.
Instead of doing all that and continuing to spend more and more and constrain liberty more and more, the government should listen to Barnett and his ideas in Restoring the Lost Constitution. It should regain the conception of the Consitution that the early Americans had.
It should assume the presumption of liberty. Our officials must let us live our lives without fear of Big Brother and his goons spying on us or forcing our businesses to close. Americans would be happier and would finally be living the lives the Founding Fathers, especially James Madison and Thomas Jefferson, intended for us to live. We were meant to live lives of freedom, not lives of worrying about what the government would let us do.