The Decline and Fall of the American Republic (Tanner Lectures on Human Values) Review

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The Decline and Fall of the American Republic (Tanner Lectures on Human Values) ReviewIn his book The Decline and Fall of the American Republic, Professor Ackerman begins by condemning the triumphalism that surrounds most discussions of the American Constitution. He professes to be (or to have been) a triumphalist himself, since his constitutional theory features a distinctive hero: not the Founders nor the New Deal's success in adapting classical constitutional forms reinforced by the Warren Court, but the ordinary American citizens who have shaped the country's fundamental commitments over the centuries.
But he also acknowledges that next to a bright side of American constitutional history stands a dark one. This is represented by the transformation of the presidency into a real and present danger to the American republic, as a result of developments that were not anticipated by the Founders: the rise of political parties, mass media, and massive bureaucratic and military establishments.
In view of this one must ask: can the transformation of American constitutional law described in The Decline and Fall of the American Republic be viewed in terms of Professor Ackerman's theory of constitutional moments? Furthermore, can his proposals concerning the reform of the presidency be attained by means of this theory? The answers to both questions are, I'm afraid, negative.
It appears there are several differences between the theory of constitutional moments and the transformations the American presidency is currently enduring. The theory of constitutional moments makes the best of a characteristic feature of the American system which consists in undercutting the pretensions of any particular branch to serve as the unique spokesman for the people. This means that a constitutional moment cannot really occur in a moment; it takes a lot of time before a political movement can obtain the popular support required to speak for the people. This is arguably what happened at the Founding, after the Civil War and with the New Deal.
But the strengthening of the presidency is not the result of a constitutional moment. This is because we are now confronted with real "moments" in time and precisely for that reason they are scarcely "constitutional". The president claims to be the only spokesman for the people with the exclusion of any other branch, not least because he pretends to act in response to an emergency situation (even if this situation will never end), and this claim makes obsolete the very distinction between constitutional and normal politics. Furthermore, this distinction is also made obsolete by a new feature of presidential politics, that is, government by the polls.
The pessimism persists if we turn to the question whether Professor Ackerman's proposals concerning the reform of the presidency - such as Deliberation Day, a National Endowment for Journalism, a new Canon of Military Ethics, the Popular Sovereignty to revise the Electoral College and the Supreme Executive Tribunal - can be attained by means of his theory of constitutional moments. In theory that would surely be possible, even desirable, since a "constitutional moment" is often triggered on by a "transformative president" who wants to inscribe a new constitutional vision into statute law and judicial precedents.
However, in the final pages of The Decline and Fall of the American Republic, Professor Ackerman makes clear his opinion that President Obama is not up to the job of a "transformative president". But even if he were, one must ask: how transformative can one expect a president to be, if it's his own powers that are at stake? It seems that the internal logic of the theory of constitutional moments has been pushed to its limit.
So The Decline and Fall of the American Republic is really about the sinking of republican values as a basic pattern of the past two centuries of American constitutional history, a pattern so forcefully and brilliantly put up by Professor Ackerman in his past books.
Professor Ackerman thinks, however, that the death of the republic does not necessarily mean the end of democracy. Even if the American constitutional tradition is overwhelmed by presidential power he maintains that the presidency may well remain an elective office. I think this is part of an effort to save his theory of American constitutional history. But can we maintain a democracy without keeping it republican?

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Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America - and How to Stop Him Review

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Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America - and How to Stop Him ReviewPhil Kerpen has a warning for you, America. He wants to alert you to the fact that Barack Obama is using his powers to create regulations to undermine Congress, ignore voters, and "radically transform America." But Kerpen also has some good news. There's a way to stop this left-wing assault on our country. You can find out what that something is in his new book, (...) How Obama is Ignoring You and Bypassing Congress to Radically Transform America -- and How to Stop Him.
Kerpen has an uphill battle to beat back the war that has been launched against America. Why? Because the way our country is being torn down is happening in the most subtle way possible. Worse, it is all being done with such ersatz legality, a legitimacy so seemingly ironclad, that most Americans are completely unaware of what is happening. And when they are aware of it they imagine there is nothing wrong with it all.
That and the way this destruction is happening is not the sort of glamorous outrage that makes for exciting news coverage. In fact, it's quite dull. After all, the way the country is being undermined is through long-winded, legalese-filled, opaque regulatory changes. Red tape. Underhanded, jargon-heavy rules, quietly implemented without fanfare or the light of day revealing them for that matter.
Like I said, Kerpen has an uphill battle not only to alert Americans to what is happening right under their very noses, but to excite them enough to do something about it.
Through the bulk of his book Kerpen outlines the way that Americanness is being smothered in paper with the thousands of pages of new regulations that Obama is weekly churning out from his administration.
Kerpen details the way the Obama administration, guided by a hardcore, left-wing ideology, is attempting to take control of the Internet, is trying to eliminate private property rights, is destroying the business sector in favor of big labor unionization, is using the outsized fear of global warming to ramp up a socialist-styled enlargement of government control on all fronts from the EPA to our energy sector, and more. In each case, Kerpen notes that this regulatory overreach is directly contrary to our American character and our core ideals.
Kerpen also notes that this bacchanalia of regulations and the subsequent growth of the power of the president was even something that the left was exercised about during the eight years of the George W. Bush era. Unfortunately for the veracity of the left, all their concerns of an un-American growth of executive power have been wholly forgotten merely because they like the direction of the obscene overreach implemented by Obama. No end of hypocrisy there, eh?
The final chapter gives us a roadmap to pruning these obscene powers stolen from the Congress and the people by this most leftist president in American history. But, it too has a warning. Just "doing the right thing" and voting is not enough. We must not only vote for representatives that will endeavor to take back their power to legislate from an out of control executive branch, we must follow up and force these elected officials to follow through on the charge we've handed them.
Seems like a good idea to me.
If you are interested in the way the left -- and even some on the far right -- have used the presidency to steal power from we the people and our elected representatives, get this book and read it. Then go forth and make a change we really can believe in.
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A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before Review

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A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before ReviewCass Sunstein publishes new material almost hourly, and I am not always impressed with his output. When he's good (Nudge), he's edgey, supremely confident, and worth a good deal of head-scratching. When he's bad, he can be a partisan suck-up (Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America). Most of the time, he serves up brilliant ideas, but half-baked. (Infotopia: How Many Minds Produce Knowledge).
But this is the book that Sunstein's been laying groundwork for with his last four or five. It's worth the wait. He applies the Condorcet Jury Theorem (recently popularized by Surowiecki's The Wisdom of Crowds) to constitutional jurisprudence, and he gets quite a bit of mileage out of it. This is the best "con law and economics" book since Hayek's Law, Legislation and Liberty, Volume 1: Rules and Order. And it's the single most original argument for creative progress in constitutional law in the last 50 years.
If there is a weakness, it's that he has gazed too long into the abyss of cognitive psychology, and come back with the power to mislead. Sunstein obsessively "frames" the debate with the heavy use of straw men. He invents, considers, and rejects three alternative modes of constitutional thinking he dubs "traditionalism," "populism," and "cosmopolitanism." This clever act of creative pigeonholing permits him to characterize the Scalia originalists as "populist radicals," even as he positions himself to the right of Anthony Kennedy (a latte-sipping, foreign-law-citing "cosmopolitan").
I find these faux-contrarian positions wildly, laughably implausible. I can't believe Cass has lost a moment's sleep worrying about America's constitutional sovereignty. But he seems to be suffering "loss aversion." He has chosen to ride the high horse of judicial minimalism until it dies, and then flog it some more. I think he needs new talking points, but the jury will decide...A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before Overview

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American Constitutional Law: Essays, Cases, and Comparative Notes Review

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American Constitutional Law: Essays, Cases, and Comparative Notes ReviewThis is a great text book. It takes a liberal arts slant to a constitutional law course. It doesn't just provide for memorizing cases, dates, and holdings. It presents the most important constitutional issues and discusses thoroughly their context within the historical time frame, as well as the particular interpretive methods used for each opinion. And it follows up each chapter with a comparison of other nations' similar constitutional dilemmas and solutions. If you want to learn constitutional law but don't want to shell out sixty grand and three years of your life to do it, buy this text book.American Constitutional Law: Essays, Cases, and Comparative Notes Overview

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The American State Constitutional Tradition Review

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The American State Constitutional Tradition ReviewEach year witnesses the publication of many books on constitutional theory and history that are worth reading. But few of those books really transcend and redefine the field of study. John Dinan's most recent book may be one of those few. At the very least, I believe it is a harbinger of a sea change in the field. I believe that we are going to see much more interest in the history of the various state constitutions as a part of the American constitutional tradition than has been the case up until now.
And everyone who studies those state constitutions will find themselves in serious debt to Dinan. Consider the following numbers: "All told, the fifty states have held 233 constitutional conventions, adopted 146 constitutions, and ratified over 6,000 amendments to their current constituions" (Dinan, 1). Most of the conventions fell within five periods in American history. The Founding era, the Jacksonian era, the Civil War period and its aftermath, the Progressive era and then what Dinan calls the Reapportionment Revolution that occured after the 1962 Supreme Court ruling in Baker v. Carr were the periods of intense constitutional activity. Out of those 233 conventions, Dinan has located the records to 114 conventions. He has read all of those records plus all contemporary accounts he could find of the conventions and an enormous amount of secondary material. What is even more impressive is that throughout his book he very clearly lays out what state adopted what change, where that can be found not only in that state's constitution but in the convention records. His book led me to purchase the convention records of my own state, Oregon and to begin wading through it. By the way, part of the fun of Dinan's book is in the quotes from those conventions. Some of the convention members were quite funny in a Mark Twain way.
Dinan's conclusion is that too much emphasis has been placed on the Federal Convention and ratification debates when discussing American constitutionalism. He is not questioning the quality of those records but he is pointing out that our constitutional thought evolved in many ways beyond those records and may well be best revealed in the records of the various states.
The linchpin difference is in the amendment process. In his Chapter 2, Dinan traces the way that the state approach to amendment changed over the course of our history. The first hard look at the amendment process came during the Jacksonian period. During this time, many of the established states witnessed popular desire to overcome the entrenched power of certain geographical areas of that state. These entrenched powers maintained their power through malapportionment of the legislature (p.33). One way to correct this problem was to liberalize the amendment process. This was claimed to have other benefits as well. It would educate the populace in republican principles via the amendment debates and it would give legitimate majoritarian movements a way to push for change short of revolution. Of course, these arguments were countered but in general the amendment process was slowly liberalized. By the end of the 19th century, all states but New Hampshire had authorized their legislatures to make amendments (p.42). Dinan traces this process through the 20th century movement to allow for amendment by constitutional initiative. (The great State of) Oregon was the first to allow this in 1903 and since then 17 other states have provided for that form of amendment. Many other states have eliminated their most stringent supermajority requirements for amendments or for calling conventions. Compare this with the stringent supermajority requirements of the U.S. Constitution. Working with the 2000 Census numbers, it is theoretically possible for the less than 6% of the population (rounding up from the total for the 13 least populated states) to block an amendment.
This difference in the ease of amendment has certain immediate and obvious implications. I would claim (this is my own point) that this makes the state constitutions messier; with a less clear boundary between statuatory and constitutional law. Especially in states like mine that allow for constitutional initiatives, this boundary gets blurred. And this can cause problems, especially with the protection of the rights of individuals.
Dinan focuses his books on relating the way this difference played out in the state constitutions in five major areas of governance: representation, seperation of powers, bicameralism, rights and citizen character. Each of these broad issues is dealt with in its own chapter, tracing its own history and the arguments that were adduced during the conventions. Each chapter notes some of the major ways that the states eventually diverged from the federal model. In the case of representation, for example, many states choose to, over time, allow their citizens more and more of a direct voice in determining the laws of their state. Twenty-four states currently allow for some sort of referendum and initiative system (pp.134-5). Those who believe in the whole bugaboo of judicial review will be chagrined to read that little change was made to judicial review during the course of our history. Two states currently require a supermajority of their Supreme Court justices to overturn a law. The most popular corrective has proven to be the recall of justices pioneered by (the great State of) Oregon in 1908. Since then, eleven other states have followed suit (judicial review is discussed in Dinan on pp. 123-35). Dinan's chapter on Citizen Character is especially revealing in terms of the liberalism/republicanism debate. I recently reviewed two excellent volumes by Alan Gibson on how that debate has molded our understanding of the U.S. Constitution. One of Gibson's main conclusions was that the Founders did not want to mold the character of our citizens on the Federal level. One of the conclusions of Dinan's book is the founders of the individual states sure gave it a good try for a long time. And in some ways, they succeeded. Probably the most important way to look at the spread of universal compulsory education is in this light- that it was largely done to mold (and conform) the character of the American melting pot. To which I say, "Good luck with that".
In any case, this is a remarkable book and one that I will return to a lot in the future. Dinan's scholarship is insightful and his presentation of that scholarship is generous. I cannot recommend this book highly enough.
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Administrative Law In The Political System: Fourth Edition Review

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Administrative Law In The Political System: Fourth Edition ReviewAdministrative Law in the Political System appears in its fifth updated edition to provide legal, social science and political collections alike with a comprehensive text exploring the role of administrative law in public policy. Chapters offer 100 new and current cases to consider the latest political climate of the Obama administration, beginning each chapter with an edited case and comments and questions. College-level students will find this a 'must' reference, and many will find it an assigned classroom text!
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The Myth of Judicial Activism: Making Sense of Supreme Court Decisions Review

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The Myth of Judicial Activism: Making Sense of Supreme Court Decisions ReviewThe author, an assistant professor of law at Penn, and the author of a solid novel about Washington law firm life ("In the Shadow of the Law" reviewed also on Amazon), tackles in this book one of the most difficult and important issues relating to the Supreme Court--its legitimacy to make decisions overruling the popularly-elected branches. Courts recently have been under fire by a number of groups, with much more emotion and passion than light and insight in evidence. The author wants to develop a different approach in assessing charges of alleged "judicial activism." While his approach is unique, I think only time will tell whether he has crafted a workable approach to the issue. Basically, the author argues that most Court decisions are "legitimate" because they represent "reasonable" decisions as to whether judicial deference is advisable. He draws a basic distinction between "constitutional meaning" and "constitutional doctrine" (i.e., rules the Court employs to implement constitutional meaning). He focuses upon doctrine, at once then avoiding the endless debate about "plain meaning." One important consideration in formulating doctrine is institutional competence, which is a key point in his analysis, as is the role of past history. A careful examination of the "activism" allegations is included--here the author argues that it is not meaning, but doctrine, that is the key issue. He also adds some solid perspective on the originalism debate.
Having laid out his general theory, the author next looks at a series of Court decisions, some quite controversial,which he designates as "easy cases" and "hard cases" to demonstrate the applicability of his model. This is followed by a very valuable discussion of "legitimacy," which he defines as sensible attempts to implement a reasonable understanding of constitutional meaning. This section discusses more cases. Finally, in a section called "Striking the Balance," the author sums up his approach in a sort of "whom do you trust" approach re deciding constitutional issues--courts or the other branches.
The book includes excellent notes and helpful sections on "further reading" at the end of each chapter. As with most innovative studies, there are a few problems. It is not always quite clear, without substantial review, as to what the author is suggesting in the initial section where his approach is laid out. How does one define "reasonable" and "sensible" for example? While written for the general reader, this is not light "bedtime reading." Nonetheless, Roosevelt is grappling with difficult issues and proposing his own innovative model to address a very critical issue. For those interested in this vital issue, a book well worth the challenges involved in reading it.
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The Dynamic Constitution: An Introduction to American Constitutional Law Review

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The Dynamic Constitution: An Introduction to American Constitutional Law ReviewIf you're a college student or ordinary reader interested in learning the basics of constitutional law, then Richard Fallon's "The Dynamic Constitution" is a great place to start. The heart of the book is a crisp overview of modern constitutional doctrine in areas such as Free Speech and Equal Protection. These sections are gems of legal exposition. Even better, Fallon puts the legal issues in historical context, discusses how the Supreme Court interprets and applies the Constitution, and relates constitutional "politics" to national politics, as when Nixon came into office in 1969 promising to put "law and order" judges on the Court. The prose is crystal clear, with almost no jargon. Plus the book is short!
Fallon never puts forward a comprehensive theory of constitutional interpretation (though he does get in digs at "originalist" Justices who pick and choose among the "original understandings" of the Founders in order to push a conservative political agenda). He seems ready to live with the messy truth that the Supreme Court weighs many factors when deciding a case: the text of the Constitution, the drafters' intent, judicial precedents, moral values, and the need for stability and consistency in the law -- all the while keeping one eye on the likely political fallout. The result is a body of law that shifts over time and doesn't reflect a tidy jurisprudence, but is able to adapt to changing circumstances (hence the word "dynamic" in the title).
Whether this jumbled system delivers what we want from the Constitution is anyone's guess. While the Supreme Court does have the power to curb the other branches of government, the system for appointing Justices ensures that it doesn't veer far from the political mainstream for very long. At its best, the Court has cleaned up laws and institutions that fell short of America's core principles, as defined by elites. But as elite values change, so does constitutional law. When racism infected the whole U.S. population, the Court ruled that Jim Crow was constitutional. But when racism was fading away among educated Americans, the Court attacked Jim Crow in holdouts like the Old South. Examples like this could be multiplied a hundredfold. It's a mixed record, but one that reflects America's mixed reality. Fallon's book is a great introduction.
PS: "The Dynamic Constitution" is also a great book for middle-aged ex-lawyers trying to remember what they studied in Con Law two decades ago.
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American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia Review

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American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia ReviewIf this first-ever biography of the colorful and prickly Associate Justice were a New Yorker profile, it would merit four stars; if an Atlantic Monthly feature, three. It is an accessible and compact survey of Scalia's public writings and pronouncements, and of public commentary on them. But as biography, it is disappointing.
Biskupic devotes only 21 pages to the first 38 years of her subject's life--the very period the reader is most curious about. How can this be called biography? Compare the first volume of Robert Caro's life of Lyndon Johnson-- 800 deeply illuminating pages on Johnson's first 33 years.
The book offers few glimpses of the influences that shaped Scalia's thought and temperament. Who were the teachers, priests, and professors who taught him? What courses did he take, books did he read, bull sessions did he attend, course papers and letters did he write? He did years of ROTC in school but never served in the military; why not? He spent his junior year at Switzerland's University of Fribourg in what Biskupic calls "a yearlong academic and sightseeing feast." That feastful year gets 43 words.
What was his work during his six years at the law firm of Jones, Day? Hardly a word on this. His four years as a professor at the University of Virginia get only glancing coverage.
The book is drawn almost entirely from published sources. The author did interview the Justice himself several times, and a scattering of family and acquaintances, but collectively these interviews add only the faintest coloration to the public record. Most of Scalia's friends, classmates, and colleagues are still alive, and so loquacious a man certainly has left a lot of private writings and utterances scattered about. But Biskupic did not bother to do the hard digging necessary to uncover them. She worked libraries, not the streets.
Biskupic surmises, casually and obviously, that his view of Roe v. Wade might have been shaped by his Catholic faith; and that his view of the District of Columbia's gun ban might have been influenced by his lifelong hunting hobby. Hardly profound.
Two speculations are particularly tantalizing. First, Scalia's literalist "originalism" in constitutional interpretation has a parallel in the literalist catechism of the Catholic Church. Second, as a law student he was taken with Herbert Wechsler's doctrine of "neutral principles" of constitutional law--the notion that judges should decide by applying transcendent principles that are detached from the outcome in a particular case. Both of these beg for elaboration, but Biskupic simply tosses them into a paragraph or two and moves on.
If you want a refresher on recent constitutional struggles, as expressed in Scalia's opinions, speeches, and writings, this is a useful book. If you are looking for illuminating biography, you will find, on finishing it, that you have learned almost nothing that was not already extant.
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Freeing Speech: The Constitutional War over National Security Review

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Freeing Speech: The Constitutional War over National Security ReviewIf you hold that America's fortunes rest in robust exercise of its democratic potential, then John Denvir's "Freeing Speech" is the brief you want to carry into court. The reason you are likely to find yourself in court, however, is that the trend in the latter half of the 20th Century has been to weaken democratic potency in favor of what Denvir terms the National Security Presidency. The tendency's foremost feature is the unilateral power of a president to commit the nation to military conflicts, not merely defensive in nature. Once this grave step is taken, speech's capacity to undo it is hamstrung.
Because democracy's role rests at the heart of the Constitution itself, courts must, under the system of checks and balances envisioned by the Founders, set straight an overreaching executive branch. All to often, the Supreme Court fails in its responsibility.
Taking a page from Karl Llewellyn's "legal realism," Denvir's analysis distinguishes an "official" Constitution, the one reliably announced by the highest court, from a "challenger" constitution, that is, an interpretation vying to replace the current official version. Moreover, where lacunae exist a third "de facto" constitution emerges, one in the First Amendment's realm, reflecting the preferences of local administrators seeking to avoid the untidiness of street marches and rowdy demonstrations in public parks.
Denvir eschews the cynicism of certain "critical legal studies" scholars, and refuses to lose hope that an allegiance to democracy, epitomized in his own "challenger" theses, will not one day triumph. In the face of a conservative court majority, inclined to sidestep its duty to "say what the law is" by resort to cheap technicality, such as denial of "standing," Denvir's call is indeed courageous.
The book's text, while exhibiting a law professor's care of reasoning, possesses a welcome narrative flow, as well as a command of historical context, an element that is essential at every step to Denvir's commentary. This is especially true of the sections dealing with the crucial importance of popular speech in the civil rights and anti-Vietnam War eras. In Martin Luther King's words (cited by Denvir), "Almost always, the dedicated creative minority has made the world better."
Denvir dissects presidential claims to secrecy, national security investigations, limitations on press access to war zones, and other hallmarks of the contemporary "war on terror," including insightful reference to recent publications by Goldsmith, Yoo, and Tushnet.
For those familiar with Denvir's previous work "Democracy's Constitution" (2001), "Freeing Speech" offers further elaboration of his contention that the Constitution's ideals demand judicial rulings actively promoting the rights of its citizens. It is not sufficient that the Supreme Court's civil liberties rulings restrain the hand of government. To the contrary, when controversies arise courts must fashion positive rules designed to advance free expression.
Without judges committed to this doctrinal view, the republic will lack the full-bodied debate needed to inform decisions by the president and Congress.
Howard J. De Nike is a legal anthropologist, who lectures at the Fromm Institute, University of San Francisco.
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Mastering Constitutional Law (Carolina Academic Press Mastering Series) Review

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Mastering Constitutional Law (Carolina Academic Press Mastering Series) ReviewThis book was an amazing find and is a great companion to Chemerisnky's Con Law case book. Offers great clarity into subtle details such as Standing, the Commerce Clause, etc.. and quickly and accurately captures the holdings and distinctions which have developed and sculpted our modern understanding of these various concepts.
IMO much more helpful than the E&E, Nutshell, and Gilbert's. I love this supplement even more, because I have not come across another student who uses it.
Highly recommended, especially if you are using Chemerinsky.
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Edward S. Corwin's Constitution and What It Means Today Review

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Edward S. Corwin's Constitution and What It Means Today ReviewThe original work, of which this one claims to be an update, is a three-volume collection of essays by Edward S. Corwin, edited by Richard Loss, which I recommend. This is a summary of the opinions in landmark court cases, with an emphasis on those that Corwin disagreed with and considered unconstitutional. Nothing about this book is authored by Corwin, and, based on his actual writings, one must conclude that he would not have approved of his name being attached to it. This is a rather crude attempt to legitimize the many ways that the Constitution has been and is being violated. Read it, if you must, as revisionist doctrine and what statists would like to have you believe is established constitutional interpretation.Edward S. Corwin's Constitution and What It Means Today Overview

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Restoring the Lost Constitution: The Presumption of Liberty Review

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Restoring the Lost Constitution: The Presumption of Liberty ReviewRandy Barnett has written a fascinating and well-argued book. The book is composed of four parts: "Constitutional Legitimacy," "Constitutional Method," "Constitutional Limits," and "Constitutional Powers." The first part takes seriously Lysander Spooner's arguments in "No Treason: The Constitution of No Authority" that the Constitution is not and cannot be binding on people who did not explicitly consent to it- the "we the people" in the preamble is a fiction. Barnett argues for a view that a Constitution can be legitimate and binding in the absence of explicit consent only if it incorporates appropriate limitations on government to safeguard individual rights. This is the most philosophical section of the book, and I found it the weakest--while I think Barnett had good arguments against tacit or implied consent, I'm not sure his alternative really provides the legitimacy it purports to, nor am I particularly persuaded by his account of natural rights. (I am a strong proponent of individual rights, but I am unconvinced that they are grounded in nature, as opposed to being justified by a combination of empirical fact and subjective values.)
In Part 2, "Constitutional Method," Barnett argues that the Constitution is properly interpreted by a form of originalism based on original meaning, as opposed to original intent. He argues persuasively that the arguments against originalism which target original intent do not work against original meaning. I found this part much more persuasive than Part 1, and I think he has formulated a consistent and rational methodology of Constitutional interpretation that takes seriously what is written in the text.
Part 3, "Constitutional Limits," is where things start to get really interesting. Barnett examines the judicial history of the "necessary and proper" clause of Article I, Section 8, and argues that the Supreme Court made a wrong turn way back in 1819 in McCulloch v. Maryland by adopting an expansive interpretation of this clause where "necessary" meant "convenient" and "proper" was virtually ignored. He extensively reviews contemporary sources to argue for the meaning of this clause and that it requires judicial review of laws to make sure they are grounded in specific powers granted in the Constitution. Barnett begins this section with a quote from Justice Clarence Thomas in FCC v. Beach Communications, showing that Thomas has bought completely into the view that there is a "presumption of constitutionality" for acts of the legislature, whereas Barnett favorably cites Justice Stevens' response to Thomas that "judicial review under the 'conceivable set of facts' test is tantamount to no review at all."
Barnett also argues that the "privileges and immunities" clause of the 14th Amendment was used incorrectly (too narrowly) in the 1873 Slaughter House cases, but the "due process" clause of the same Amendment was used correctly in Lochner v. New York in 1905. He argues that both federal and state legislatures which act to limit the liberties of the people need to show that it is within the enumerated powers of Congress or within the police powers of a state, respectively, and otherwise overturned by the courts.
Finally in this section, Barnett turns to the meaning of the Ninth Amendment, which reserves unenumerated rights to the people, and takes issue with Footnote 4 of the 1938 case United States v. Carolene Products. The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation. The requirement of a specific enumerated right was then expanded in Griswold v. Connecticut by allowing additional rights not specifically enumerated, but found in "emanations and penumbras" from the other rights. Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights. (E.g., a regulation can restrict time/manner/place of speech, but not content; speech itself cannot be prohibited on the basis of content without improperly infringing the right.) Barnett gives an entire chapter on the presumption of liberty, and how to identify rights that have not specifically been enumerated.
In Section 4, "Constitutional Powers," Barnett looks at the commerce clause of Article I, Section 8, and argues that the Supreme Court went wrong with Gibbons v. Ogden in 1824 by equating "commerce" with "intercourse" and allowing Congress to regulate that in every case where it merely affects more than one state. Barnett argues, again by citing a wide variety of contemporary sources, that "commerce" was distinguished from "manufactures" and "agriculture," and was synonymous with "trade." Thus, Congress has no legitimate power to legislate regarding manufacturing and agriculture, only regarding trade between states, with foreign nations, and with the Indian tribes.
He also includes a chapter on the police powers of states and what they can constitutionally do on his account, and another on the application of his view to judicial doctrines and cases. He argues that this yields something which is rather libertarian, but not entirely so.
Barnett puts forth a position which takes the language of the Constitution seriously, and which would require us to be explicit about making changes to it when we find that it has become out of date, rather than allowing a flexibility to the language to such an extent that the original wording no longer has any meaning at all. He spells out a view in which there is real content to judicial review, justified directly by the language of the Constitution, and in which the court has strong checks and balances against the legislature and the executive (and vice versa).
This book deserves to be widely read and taken seriously by those in the judiciary.Restoring the Lost Constitution: The Presumption of Liberty Overview

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Constitutional Analysis: In a Nutshell (Nutshell Series) Review

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Constitutional Analysis: In a Nutshell (Nutshell Series) ReviewThis is an extremely useful book for any first year law student. I have about every imaginable first year study aids, but by far this is one of the best on the market! Professor Baker does an outstanding job of explaining complex issues to the novice constitutional law student. I would definitely recommend this book to anyone who would like to enhance their legal knowledge. It's also a very handy tool for final exam time!Constitutional Analysis: In a Nutshell (Nutshell Series) Overview

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Acing Constitutional Law (Aging Law School) Review

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Acing Constitutional Law (Aging Law School) ReviewI was not a fan of this book after buying it. It was not very helpful and ended up sitting on my desk during the exam period. Look to another supplement for help. I used the Emanuel book and the Siegel Q&A series which were both very helpful.Acing Constitutional Law (Aging Law School) Overview

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