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reason: You also prevailed on the spending power.
Barnett: It was a huge victory. No one thought—in fact, I didn’t even think—that we had a chance on that. And we actually won. There’s never been a case since the New Deal where the Court found any restriction on the spending power. And the power to spend is actually not in the Constitution. There’s a power to tax, which presumably includes power to spend the money you get from the taxes. There’s been no judicial limitation on that at all.
Well, the Supreme Court found that line had been crossed. The vote was 7 to 2 that there was a line on the spending power, it got crossed, and then the remedy for that—which is, again, more than we expected because we didn’t expect to win on this claim at all—is that with respect to these Medicaid funds, Congress cannot withhold money for the existing Medicaid program in order to get the states to agree to an expansion of that program. They can’t leverage the money they’re spending on existing programs to coerce [the states] into doing this other one. This is a huge victory also.
reason: Why do you think liberal law professors lined up so overwhelmingly against the idea that the Commerce Clause imposes any sort of limits on congressional power?
Barnett: Since the New Deal, liberal academia—and there is almost no diversity in liberal academia, it’s a complete echo chamber where they basically talk to each other—has maintained that the New Deal Court’s jurisprudence and the Warren Court’s jurisprudence stand for the proposition that Congress has a national problems power. They have the power to solve any national problems, especially national problems that pertain to the economy, which is, when you think about it, everything.
That’s their view. That’s what they think the New Deal stood for. It’s not what the New Deal Court ever said; it’s not even what the Warren Court ever said, though the Warren Court took it a little farther than the New Deal Court. But they’ve been teaching it this way for 70 years. That’s why in 1995 when the Lopez case found a limit [by striking down the Gun Free School Zones Act for exceeding the Commerce Clause], they went berserk. Now Lopez is hallowed precedent that they use to show they believe in limits too, but at the time Lopez was “conservative judicial activism” because it found any limit at all. It violated their fundamental belief that there were no limits. So they dismissed Lopez. Then in the Morrison case, the Violence Against Women [Act] case in 2000, when the Court again held the line and found something unconstitutional, then they got scared and said, “Oh, maybe the Court’s serious, and maybe we were wrong.” And lower courts actually started operating then.
Then in 2005, in the Raich case—the case on behalf of Angel Raich and Diane Monson that I represented all the way up to the Supreme Court—when Justice Scalia and Justice Kennedy crossed over and joined the liberals in upholding the application of the Controlled Substance Act to marijuana you grow in your own back yard to consume yourself, they breathed a sigh of relief. They said, “We were right all along.” The little new blip of federalism is nothing. They said, “We’re back to our default position that Congress has unlimited power.” When we made our argument now, seven years later, they were already back in their original position. We were arguing, “There’s a limit,” and they said, “That’s crazy. That violates everything we know.”
reason: Do you think academia will become less of an echo chamber?
Barnett: I don’t know. I hope it will. I have a center at Georgetown, called the Georgetown Center for the Constitution, that’s gearing up this fall. One of its missions is to bring fellows in who might go on to teaching, and other institutions are doing similar things. It’s going to be a long process because in fact the bias against libertarians and conservatives in academia is overpowering, in law schools in particular. Though I will say that there’s a greater bias toward conservatives than there is toward libertarians. Libertarians are considered safer or something, a little more interesting, and conservatives are more out there.
The thing I tell libertarians generally about this—not just academics or prospective academics—is you can’t make your happiness contingent on getting a libertarian society. The struggle for liberty will never end because there are always going to be statists. There are always going to be people who enjoy security over liberty, because that’s another part of the natural instincts that people have. And so the best that we can ever accomplish is keeping liberty alive. And you can keep liberty alive just by being a libertarian yourself, and writing about it, and getting other people to be. Even if the society you live in is not, you can at least keep the idea of liberty alive, possibly liberty itself.
reason: In a famous 1905 dissent, Justice Oliver Wendell Holmes wrote, “The Constitution does not enact Mr. Herbert Spencer’s Social Statics,” meaning that the Constitution did not enshrine libertarian principles. Is that wrong?
Barnett: Holmes was wrong about this, as he was wrong about almost everything. The Constitution we have is a Lockean Constitution. It’s informed by Lockean principles. As a result, it’s quite consistent with freedom of contract, and property rights, and those sorts of things. If it were true that it was consistent with all political theories, you wouldn’t have to have a living version of it that leaves out whole parts. Why did they cut out the Privileges or Immunities Clause? Why did they cut out the Ninth Amendment? Why were all these parts gone? Because they got in the way. If they didn’t get in the way, you could just use them. But you’ve got to get rid of them, because they’re in the way. You can’t have it both ways. You can’t say, “The Constitution we have is consistent with all legislative ends, all laws,” and then get rid of the [parts] that get in the way.
reason: So the Constitution is compatible with libertarian principles?
Barnett: It is compatible with them, and it is actually what has kept us a freer society. Here’s a way of thinking about it: The Founders built a Constitution that was so well-engineered—and [they] built in so many redundant checks on power—that even if you get rid of this one, and this one, and this one, just the ones that are left are enough to keep us relatively free. It’s as though you’re on a four-engine jet. You’ve lost three engines. The last remaining engine is still keeping you aloft, because the jet was well designed. It was designed to fly on one engine, although that’s not optimal. And that’s where we are now. We’re flying on one engine. What’s left of the Constitution is still good enough to keep us aloft. But it would sure be a lot better if we could get the other engines fired up.