Libertarian Lawyer Randy Barnett's Health Care Fight


As the libertarian movement's historian (see my book Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement) I was especially fascinated by today's New York Times front-page profile of longtime movement legal theorist Randy Barnett.

The story focuses on his role in the intellectual fight against health care mandates as the Supreme Court considers the issue this week. Some excerpts:

[O]ver the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law's constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court….

Professor Barnett, who watched Monday from the spectator seats, was not the first to raise the constitutional critique of the health law, but more than any other legal academic, he is associated with it….

He is a fierce advocate of economic freedom who is accustomed to being a legal underdog. In 2004, in his first (and, he says, probably his last) appearance before the Supreme Court, he argued that Congress could not criminalize the production of home-grown marijuana for personal medical use. There again, critics said he would lose 8 to 1. He did lose, but took satisfaction in the actual vote, 6 to 3…..

Amid the rise of the Tea Party movement, some Republican lawmakers argued during the legislative debate that the mandate was unconstitutional. With his academic credentials, Professor Barnett helped bolster the mandate's conservative critics…. 

Professor Barnett says he learned early on the importance of being able to communicate with ordinary people, "and not be a pointy-headed intellectual."….

He discovered libertarianism as a student at Northwestern. Later, as a Harvard law student, he took a class in constitutional law from the liberal scholar Laurence H. Tribe, and found himself disenchanted with the Supreme Court's interpretation of the Constitution….

He became a prosecutor and later, a contracts professor. But a 1986 invitation to speak to the Federalist Society, then a fledgling group of conservative lawyers, ignited his interest in the Constitution. He developed a specialty in the Ninth Amendment, a favorite of libertarians, which says that rights not spelled out in the Constitution are "retained by the people."

Professor Barnett's work on the health care law fits into a much broader intellectual project, his defense of economic freedom. He has long argued that the Supreme Court went too far in upholding New Deal economic laws — a position that concerns his liberal critics.

And well it should!

Barnett is in many ways a walking example of the slow but real progress that specifically libertarian movement libertarians have made starting from their positions of obscurity. Barnett's a guy whose career was aided and shaped by groups such as Center for Libertarian Studies and Institute for Humane Studies (IHS) in the 1970s and '80s and was an old-school member of the circle around Murray Rothbard in those days (and still fights for greater fame for 19th century libertarian movement forefather and hero Lysander Spooner.)

Barnett was a lecturer at the first IHS seminar I attended as a student in the summer of 1988. His bravura lecture on the benefits and rightness of a polycentric legal system–in my memory he never once used the words anarchy or anarchism–first made me an anarchist, for what it's worth.

Barnett went on to argue (and, alas, lose) the medical marijuana case Gonzales v. Raich at the Supreme Court in 2005, and he's now recognized by the establishment mouthpiece NYT as one of the major players in the most important legal debate of the year. And he assured me in my interview of him for Radicals that his large-scale intellectual project is as rooted in Rothbardianism as ever. It's a nice moment for people watching libertarian influence grow and shift over the past few decades.

The Structure of Liberty: Justice and the Rule of Law is his best book, in my view, laying out the philosophical and legal case for law that need not be singular and monopolized.

Bonus old-school Barnett: he takes on Robert Nozick's defense of the state in the 1977 first issue of Journal of Libertarian Studies.