Randy Barnett: How To Secure Our Liberty Through "Our Republican Constitution"
The intellectual leader of the libertarian legal movement talks about Donald Trump, Ted Cruz, third parties, Merrick Garland, and how to roll back the state.
In his forthcoming book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Randy E. Barnett, the intellectual leader of a consciously libertarian legal movement that has hugely reshaped how courts interpret the law, lays out his case for "judicial engagement," in which judges actively challenge and invalidate laws and policies that infringe on individual rights and freedom. Our Republican Constitution is a powerful rebuke to democratic majoritarianism, which holds that legislators have broad powers to effectively do whatever they want.
A professor at Georgetown Law School, Barnett has also been at the center of two major Supreme Court cases in the 21st century. He was the lead in 2005's Raich case, in which the Court ruled that Congress' power under the Commerece Clause was immense. And, as he recounts in gripping and compelling fashion in his new book, Barnett helped to create the nearly successful (and in his telling, partly successful) challenge to the individual mandate at the heart of President Obama's controversial health care reform.
Born in 1952, Barnett grew up in the Chicago area, attended Northwestern as an undergad (he majored in philosophy), and went to law school at Harvard, where he was a classmate of Supreme Court nominee Merrick Garland. Garland, he says, is a smart, nice guy who would be terrible from a libertarian perspective because of his reflexive deference to lawmakers under virtually any circumstance. "As a matter of judicial philosophy," says Barnett. I think he would not be a good justice for us to have". In the early 1970s, he was associated with the Center for Libertarian Studes and economist Murray Rothbard, whom he says continues to shape his thinking in important ways.
An alumnus of the Institute for Humane Studies and an active participant in the Federalist Society, Barnett is the author the highly regarded and controversial academic books The Structure of Liberty (1998) and Restoring the Lost Constitution (2004). Intended for a general audience, Our Republican Constitution is simultaneously intellectually rigorous and a real page-turner, filled with dramatic anecdotes that illustrate Barnett's powerful and provocative argument that routine deference to elected legislators is the wrong way to interpret the Constitution or create a rich and flourishing society.
Barnett sat down with Nick Gillespie at Reason's D.C. headquarters for a wide-ranging conversation about his experiences working in his father's laundry, his favorite Supreme Court case (that would be Lochner), how he developed his nascent libertarianism at a time when few people called themselves such, why he thinks a new political party may be a necessity, why he thinks Donald Trump is an authoritarian, and why he believes Ted Cruz understands how the Constitution limits government power.
About 1 hour.
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Reason: Hi, I'm Nick Gillespie with Reason TV and today we're talking with Randy Barnett. He's a Georgetown law professor and the author of the book most recently, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. Randy, thanks for talking.
Randy Barnett: Great to be here, Nick.
Reason: All right. Well, let's get right to the book. Our Republican Constitution—republican is not capital "r," it's not a partisan thing. You talk about a democratic constitution and a republican constitution understanding. What is the democratic constitution and why is it important?
Randy Barnett: The two different conceptions of the constitution stem from two different visions of what We the People means. We the People could either be taken collectively as a group and if it's taken collectively as a group, the only way We the People can govern is by democratic majoritarianism, so it leads to a democratic conception of the Constitution.
Reason: And meaning like the most or the mob, I mean, that the majority—
Randy Barnett: The group— The majority— If the concept of popular sovereign means that We the People must govern, then the only way We the People can govern is by a majority rule and then it's through representatives who themselves are supposed to represent the majority view.
Reason: So, then what's the republican counterweight?
Randy Barnett: Well, it's interesting. One of the reasons for the writing the book is that this other democratic vision of We the People is so obvious and well known that people can't even imagine what the alternative might be, but it turns out there always was an alternative and it's We the People based on individuals or what I say as We the People each and everyone. If you take the view of We the People each and everyone as individuals and you follow the Declaration of Independence which I have a chapter devoted to, it's that first come rights and then it is the words of the Declaration, "to secure these rights."
Reason: You mention the Declaration of Independence but, first off, why? Why does the Declaration of Independence matter in relation to the Constitution because the Constitution is the founding document of the United States of America, right? Not the Declaration?
Randy Barnett: Well, the Declaration was the founding document of the country. Then we had the Articles of Confederation and then we had the Constitution. We had two different forms of government here since we separated from Great Britain, but the reason why I appeal to the Declaration is because I'm trying to show that this individual conception of We the People has as long a heritage as the democratic or majoritarian one, the one that We the People as a group and you see it in the Declaration. It is to secure these pre-existing rights that governments are instituted among men.
If you take that view, then it's not so much that We the People govern. That's not what popular sovereignty means. Popular sovereignty means that it's the rights of the individual person that needs to be protected by government and then the people control or they limit government, but government is not the same as us. They're a small subset of us. They're the governors and the reason we have a Constitution is to provide the law that governs them.
Reason: This is not something that necessarily follows in terms of conservative or liberal concepts, right, because somebody like Robert Bork, a very conservative jurist, was is in most ways a majoritarian, that as long as— If a law was passed by an assembly or legislature that had been properly elected, they could pretty much do whatever they wanted.
Randy Barnett: Yes. I mean, this is a book. It's a popular book, that we should point out. My other books have been more academic, published by Oxford or Princeton. This is a popular book published by Harper Collins intended for a general audience and if I had to say who the direct target of the book was, in some sense who the audience is, it's conservative Republican or it's conservatives in the United States today who have accepted in some sense unthinkingly this progressive or democratic vision of the Constitution, made that part of their own. There are sometimes no more strident adherents to the democratic constitution than some judicial conservative republicans.
Reason: Talk about that in terms of you used the term or the phrase judicial restraint which I think people are somewhat well known or versed in and then judicial engagement as opposed to judicial activism, but judicial restraint as part of the democratic constitution, judicial engagement part of the republican constitution.
Randy Barnett: Right, because judicial— The argument for judicial restraint is that unelected unaccountable judges should not be getting in the way of democratic majorities unless they have some really good reason for doing so. For example, if the Constitution has an expressed prohibition, the Constitution itself speaks for the majority so judges can follow that. This is a very majoritarian view of what judges are supposed to do. Leading to a doctrine of judicial restraint, which is not an interpretation of the Constitution, it's simply a vision of what judges' proper role is.
Judicial engagement which is a term that has been popularized by the Institute for Justice is the idea that judges as explained in the book, judges, too, are servants of the people and their job is to be an independent tribunal of justice when a member of the sovereign public gets into a dispute with the legislature who are their servants as to whether the legislature is acting within its proper powers. The public ought to be able to go to a neutral judge who's not going to put his finger on the scale for one side or the other and have that issue determined and that is what we're calling judicial engagement.
Reason: Talk about how this also intersects with concepts of original intent or originalism because these are also phrases that for those of who are not trained in law, it gets difficult to understand.
Randy Barnett: It's very simple. This is the Constitution. If the Constitution is the law that governs those who govern us, then those who govern us should no more be able to change the law that governs them than we are able to unilaterally change the speed limit that govern us. They need to go through the amendment process, so originalism is simply the proposition that the meaning of this must remain the same until it's properly changed.
Reason: And it's explained in the Constitution how those changes happen?
Randy Barnett: Right. Exactly. Now, this is not a book about originalism. My last book was about originalism. Originalism plays very little role in this book, but it is underlying the whole idea of why we have a written Constitution.
Reason: And it's important to understand— I mean, when people invoke originalism the way you're talking about it, it's not like they're biblical literalists and they're saying it's in the Constitution or not. I mean, the specific words or things like that. It's actually about the process by which laws or by which the scope of government is amended.
Randy Barnett: Yes, the argument is that every word of the Constitution should be followed according to the meaning it had when it was enacted and it was enacted at different times. The 14th Amendment was enacted in the 1860s, so it is about following the words of the Constitution. It is not about following the intentions of those who wrote the words in the sense of what they expected would happen. This is what sometimes is called original expected applications. It's not about that. It's not about, well, what would they think about gay marriage or what would they think about freedom of contract. That's not what this is about. It's about what they said, not what they— How they thought what they said might be used in the future.
Reason: You've talked in the past or you've written about how bizarrely, I mean, now it seems and it's partly a tribute to Antonin Scalia, the recently deceased Supreme Court Justice's impact. Before him, there wasn't all that much attention paid to the actual text of the Constitution or of laws being written. How did that happen and was it through force of personality that he was able to say, hey, look, we're supposed to be reading this stuff.
Randy Barnett: I'm not exactly sure how it happened, but I'm certain it did happen. When he became a Justice, the Court was paying almost no attention to the text of the Constitution. You could have whole big Supreme Court opinions that didn't even talk about the text and what it might mean. That's no longer the case.
The variable I think that's changed here is Justice Scalia and Justice Thomas together joining the Court because Justice Thomas is every bit as much a committed originalist if not more than Justice Scalia was and now recently Justice Alito has just revealed that he himself is also originalist. I was on a program with him at Georgetown. I introduced him and the dean who was asking him questions just like this and he asked him what his approach to the Constitution was and he says, well, I'm an originalist and that's the first time that I've heard him describe himself as an originalist.
Reason: Where does Scalia fall in the realm of judicial restraint versus judicial engagement?
Randy Barnett: He's kind of in the middle. I think because of his history, he came up through the restraint period and the restraint period still affected him, but I do think that he was pretty stalwart about where there is an express prohibition, an expressed right, in the Constitution that it ought to be enforced with qualifications that he also believed in like standing requirements and other things.
And so he was kind of the middle of this and there are some like, for example, Judge J. Harvey Wilkinson who have argued that even the Heller decision protecting the individual right to keep and bear arms in the 2nd Amendment is an activist decision, so that's the extreme deference that once pervaded the conservative legal movement but no longer pervades the conservative legal movement.
Reason: Before we go on to talk about your specific experiences in cases argued in front of the Supreme Court, let me follow up when you talk about 14th Amendment and you add 15th, 16th, at a certain point when the Bill of Rights was applied to the states broadly speaking, what is left for the states to do if in fact they have to defer to the United States Constitution?
Randy Barnett: Well, plenty. In fact, it's discussed in the book in chapter 9, I think, where I talk about irrational and arbitrary laws. The Constitution and our whole system of government presupposes that our liberties may be regulated, but those regulations have to be for the purpose of protecting each one of our rights, each one of our liberties, and so regulations are sometimes what you might think as before the fact, saying afterwards you could be sued for tort but before the fact, you shouldn't be able to build a building that doesn't meet certain kinds of standards. This is not a libertarian world necessarily but it is a world of reasonable regulation, but if the regulation is not reasonable, if it's actually irrational or arbitrary, meaning it isn't really there to serve the health and safety purposes of the public, but maybe it's there just to help out certain interest groups as opposed to others, then that's beyond the just power of a legislature to enact. Legislators must be trying to regulate to protect against harms caused by individual conduct in good faith, not simply to help out their buddies.
Reason: How is the discovery process of that, though? Is it the results or is it in legislation or in the legislative history and I know one of the examples that you talk about has to do with state-level restrictions on what is it, Lee Optical or whatever. And this is going back a few years before we had various kinds of LensCrafter or national chains and some of these laws still kind of exist of where, oh, you can't just sell your own eyeglasses, you need to go through this rigorous and ridiculous state licensing process, etc. Why do we know that that's a ridiculous or arbitrary restraint on economics or on business rather than something else?
Randy Barnett: I think courts need to be realistic about the origins of these laws, but then with that realism in mind, then they just have to look and see whether there's some kind of fit or what kind of fit is there because between the means that were adopted and the ends that they're supposed to achieve. If they find that fit is not really there or if they find that certain people are being treated differently than other people for reasons that can't really be explained, that's what an irrational and arbitrary law is. An irrational law is one that doesn't really fit the purposes. It's that you're literally acting irrationally. You say you're doing it for this reason but it isn't really doing it, or arbitrary because you're treating this person differently than that person similarly situated. That's sort of the outer boundary of what the people can be said to have consented to when they're not being asked directly for their consent.
Reason: Can we ever separate out that sense of, well, this is arbitrary or this is ridiculous from social context, because when you think of something like Plessey v. Ferguson or some of these economic rights cases where it's like, no, well, obviously you shouldn't be allowed to sell caskets to somebody out of state or whatever, these seem ridiculous now, the idea that you would say, okay, well, a black man can't buy a first-class railroad ticket, but in 1896, maybe nobody would— Very few people would've said, oh, that's totally arbitrary or it doesn't—
Randy Barnett: A lot of people said it was arbitrary. The railroad companies didn't like the idea of having to put on separate cars and make their employees insult their customers by telling them they had to ride in the second car. A lot of people objected to it, but by that point, the Supreme Court had basically enforced the democratic Constitution which deferred to local police power majoritarian rule and the rationality of that statute in Plessey was treated in two sentences in that opinion, that basically it was to preserve social order. End of story. No discussion of context, no discussion if there had been a problem with social order beforehand which there hadn't been, and so that's exactly the kind of deference that my book argues against and I talk about Plessey in the book.
Reason: Let's talk about the Obamacare decision. You are, and possibly, I mean, this reads almost like a legal thriller. The opening section of the book is phenomenal and it recounts your role in coming up with the legal defense or the legal argument against the individual mandate in Obamacare which obviously didn't go the way that most libertarians and I would hope most Americans actually want, the idea that we can be mandated to engage in a certain type of economic activity against our will. You've written that Obamacare is actually a partial win. Can you explain what you mean by that?
Randy Barnett: Right. Well, you have to distinguish between the law and the outcome. Normally, if you win on the law, you also win on the outcome and if you lose on the outcome, it means you've also lost on the law. This is a very strange circumstance where we won on the law and still lost on the outcome.
Reason: Okay, so, I mean, because—
Randy Barnett: The win on the law was what you just said—government does not have the power to make you buy a good or service. Five votes agreed with us about that and they said it's beyond the Commerce Power. It's beyond the Commerce Power as enhanced by the Necessary and Proper Clause. It's an improper means of Congress asserting its enumerated powers. We won. We won!
And then what Chief Justice Roberts did is he changed the law so that it wasn't a mandate anymore. It was an option. It was option—you can pay this small tax that's non-coercive. In his opinion, it had to be non-coercive. Otherwise—
Reason: And is it non-coercive because it's small?
Randy Barnett: Yeah, exactly.
Reason: So at what point when it builds up to—
Randy Barnett: You have to ask Chief Justice Roberts. You can't ask me.
Reason: I'll get him. He's coming in next.
Randy Barnett: Yes.
Reason: And I'm sure he has a book to promote.
Reason: Are the legal challenges to Obamacare done?
Randy Barnett: Well, because it's such a big law, it's constantly going to be bumping against one provision of the Constitution or another. Right now we have the religious exemption issue for some people for paying for abortions and abortion-related services, so a big law like this is constantly going to have problems, but in terms of— We're not going to get rid of Obamacare in the courts. That's clear.
Reason: It will have to be done legislatively if at all.
Randy Barnett: Yes, right. And one of the purposes— Another way in which our case was a win— It was a big win on the law. We would've made terrible law if the court had adopted the government's reason for upholding Obamacare, but they didn't. They adopted our reason, but it's another win because we kept the law in legitimacy limbo for several years and in some respects, it still in legitimacy limbo. Normally, once a social welfare program gets implemented, it's politically impossible to repeal it, but our lawsuit was part of what kept that law controversial, to this day.
Reason: And recount how you came up with the— What was the kind of light bulb going off where you realized, okay, there is a— That the individual mandate is really up for questioning in a serious way?
Randy Barnett: It happened on a blog. I was a member of the politico's blog called The Arena. I don't think it exists anymore and one morning— There's been a Wall Street Journal piece on why Obamacare was unconstitutional which had not persuaded me and then I woke up in the morning and I checked my hand-held and I saw that there was a very snarky post by this law professor about why no serious person could question the constitutionally of this which got me kind of riled up. You know I sometimes get that way at social media.
Reason: And you know it was wrong and you just had to find the—
Randy Barnett: I said, come on, this guy's like, you know, he was equating the Constitution with the Supreme Court. He said the Constitution, the Supreme Court has given a blah blah blah and it just annoyed me and so I thought, okay, fine, let's start with what the Constitution says. It's not in here anywhere and it's sort of like one thing led to another as I was crafting this blog post. It just sort of— The argument just sort of got made in the course of writing the blog post.
Reason: Now, in the book you talk about how you were happy not to be the one actually doing the oral argument.
Randy Barnett: And my wife was really happy.
Reason: But that leads to a different case that also has a lot to do with the Commerce Clause—the Raich case about medical marijuana in California and whether or not the federal government had the right to regulate that and you did argue that case.
Randy Barnett: Yes.
Reason: And that one went against you 6-3. If we won in the Obamacare case, how did we possibly lose in the Raich case?
Randy Barnett: It's actually a completely different legal issue. There was nothing improper about the means that Congers was using to enforce its law which is the normal criminal law to enforce a prohibition. The only issue is whether they could reach inside a state and tell individuals what to do because their conduct would affect interstate commerce.
Reason: Or hypothetically.
Randy Barnett: Yeah.
Reason: It's hard to say that anybody growing pot in their backyard is really affecting—
Randy Barnett: That was our argument, Nick. That's what we said.
Reason: And, well, you won.
Randy Barnett: And we got three votes. We won Justice O'Connor over and Justice Thomas and Chief Justice Rehnquist. We had all three of them, but we lost Justice Scalia. It took me a while to get over that. I wrote a pretty harsh treatment of Justice Scalia after that and we lost Justice Kennedy for reasons he never articulated. He just joined the majority opinion and never defended himself. And basically what Justice Scalia did— Getting back to your earlier question is he deferred to Congress's judgment that you needed to reach homegrown marijuana in order to effectively regulate interstate commerce, so it's when he took the deference turn, that's when we lost him. So it's come back exactly to that point and your question earlier about whether he's a deference guy or not, he was a deference guy.
Reason: At least in that case.
Randy Barnett: In that case, as he was in other cases.
Reason: And then in other places he was like, no, the government just doesn't really— Can't legitimate a right to [infer] judgment.
Randy Barnett: Right. But he changed. We've all changed. We all change. I've changed and he's changed. He was growing in what I would say my direction, but at the same time, I started off not being an originalist and became an originalist after he did and so in some respects, I kind of grew a little bit in his direction.
Reason: Just personally—what is it like— I mean, you talk about it's nerve wracking to be in front of the Supreme Court, but it's also kind of— That's like being on Broadway if you're a lawyer. What it's like to lose? Is it crushing? It is like—
Randy Barnett: In that case, we knew— I knew we'd lost because I could tell from the tenor of the question that we lost. After weeks had passed before the opinion came out, I could convince myself, well, maybe Justice Scalia really wasn't going to vote against us after all. Maybe he was just asking me questions, but I knew that day. All the questioning that I got from the bench were from justices that voted against us. The three friendly justices— Chief Justice Rehnquist was sick that day so he didn't ask me questions. Justice Thomas doesn't ask questions and for whatever reason, Justice O'Connor didn't choose to give me any helpful question so I had a very hard day. I think I held up, but under severe questioning and I knew.
In the Obamacare case, we felt we'd won it and, in fact, reporting shows we did win it.
Reason: So, how do you know—
Randy Barnett: We won it initially and then Chief Justice Roberts changed his vote after the initial [arguments].
Reason: How do you know— Is that from a textual analysis or are you reading tea leaves there?
Randy Barnett: It was reported by a reporter, a very good reporter, of the Supreme Court from her sources that this is what had happened.
Reason: And do we know why he changed his mind?
Randy Barnett: We don't, because it's a secret that he even changed his mind and her sources didn't say and I only know what I know from her sources.
Reason: Does Roberts tend to be deferential to— Is his a democratic constitutionalist?
Randy Barnett: Yeah, exactly. And he was recently in the gay marriage case and he talked about how evil Lochner was, in the gay marriage case.
Reason: Explain for us Lochner.
Randy Barnett: Well, Lochner is the is famous or infamous case from the early 1900s in which the court invalidated a maximum hours law for bakers. It really wasn't that big a deal at the time, but Teddy Roosevelt, and I talk about this in the book actually, Teddy Roosevelt made it a campaign issue when he ran for president as a Progressive in 1912 and he made judicial restraint a big theme of his movement and he had put Oliver Wendell Holmes on the Supreme Court when he was president as a Republican and Holmes had this hugely restrained outlook towards what judges should be doing.
Reason: And just to keep it straight in my mind, it's just that if the legislature does it, it's okay.
Randy Barnett: Right. Only if no reasonable person could agree with it is not okay but there's always a reasonable person like Justice Holmes would say, well, I'm a reasonable person and I think it's okay so therefore it's okay, so unless there's a law that no reasonable person could possibly think was within the legislative power, it's okay, and so Teddy Roosevelt when he was running for president and he was quoting Holmes and talking about Judge Holmes and what a great justice he was, he started talking about the bake shop case and made it a big political issue.
Reason: And he was mad that they had invalidated, that the Supreme Court had invalidated the legislature's right to say, no, you can't work more than a certain number of hours.
Randy Barnett: Exactly, right. And so he made it a big public issue and from then on in, it had a political salience that it didn't have really before 1912 and for many on the right as well as people on the left, the Lochner case is the paradigm example of the Supreme Court having overreached in a very very inappropriate way and I remember when I was a law student and I got to that case and I was reading it in the casebook and I would read the night before. I had Larry Tribe as my econ law professor. He was a excellent teacher and I would be reading the cases and I would come across a case like the Lochner case and I don't specifically remember that one, but I know the whole— I'd go read it and I'd go, wow, this is great, I can't believe how great this opinion is and then I would like turn the page and say, but it's evil. This is why it's wrong. Wait, wait, no, no, wait a second, I like that case, so I do say somewhat tongue-in-cheek but only somewhat, what it's my favorite Supreme Court case and that just gets the dander up.
Reason: And you obviously never worked in a bakery or for a Dunkin' Donuts or something?
Randy Barnett: I worked in a laundry.
Reason: Okay. So there you go.
Randy Barnett: It's very hot in that laundry.
Reason: To switch a gears a little bit, you have in the—
Randy Barnett: Let me say this about the Lochner case and this goes back to your statement about what reasonable regulation is and what it's not, what's irrational. That particular provision was part of a very large and comprehensive regulation of bake shops called The Bake Shop Act. There were all kinds of health and safety rules in that act—how high the ceilings had to be, what the floors had to be made of, whether the walls had to be whitewashed, what kind of animals could be in the vicinity—cats only—where the washrooms would be, what the ventilation would be, where people would sleep relative to where the ovens were. All of this was in the act. None of it was challenged. All of it is mentioned in the majority opinion as perfectly okay. Reasonable regulations of the health and safety. This one provision only which was put into the law at the behest of the bake shop unions was singled out because it did not have an obvious relationship to health and safety and the arguments that were being made on its behalf the Court thought were not credible.
Why? Because they knew and in fact the evidence showed that it really was there to side with the organized unions in the bigger bakeries against these small mom & pop ethnic bakeries that didn't want to unionize, so that's what the Court was getting in the middle of there was that sort of controversy because it lacked a health and safety rationale, they didn't uphold it, but they— In fact, it wasn't challenged but they mentioned that the rest of the act was perfectly fine.
So I just want to say this supposed extreme Lochner case, they're the worst of the worst of the worst. As far as they were concerned, the health and safety regulations of the bake shop industry was perfectly okay.
Reason: Where would you be if you were deciding that now because— Would you be okay, and this is also in the nineteen teens, this is when cities are filling up, factories and large buildings are first being used in crammed quarters. There's things like the Shirtwaist Triangle Factory fire. So would you be okay with a lot of these other safety regulations.
Randy Barnett: As a matter of the United States Constitution including the 14th Amendment, if I were a judge and those were good faith health and safety regulations, I would uphold them. That's what the Lochner court did. I would do what the Lochner court did and that shows how reasonable I am.
Reason: To turn to a slightly different topic where you may not be considered as reasonable, in your career as a legal scholar and as a commentator, as a radical libertarian person, you've always looked kind of askance at the Libertarian Party or third parties in general, that they're kind of distractions from where change is really going to happen. A couple of weeks ago in USA Today, you wrote that if Donald Trump wins the Republican nomination or wins the presidency, that a third party should crop up. You said that it should be called the American Constitution Party. Why should there be a third party and what should its basic principles be?
Randy Barnett: First, I should say that when the Libertarian— I wasn't smart enough to know all this when the Libertarian Party was formed. I was rah rah go Libertarian Party. I went to the Libertarian Party National Convention in New York and I don't remember who the candidate was. I'd have to go back and check which candidate was nominated there, but that's the one where Ed Crane was involved and Murray Rothbard was involved and Robert Nozick was still involved in the Libertarian Party. It was very exciting to be a part of all of that and I cast a vote I think for Roger MacBride back in the day, so this is not always been my view.
But I have subsequently come to realize that we have, for better or worse, a two-party system, based on the laws that govern our elections.
Reason: We're always going to have two dominant parties.
Randy Barnett: The laws are rigged for a two-party system. Unless you change the laws, this is what we've got and the winner is the one that's first past the post. They get the office, and so if you have a third party, it's generally going to pull votes away from the party it's closest to and help the party it's farthest from, so the logic of a third party makes it more likely that the worst candidate of the two major parties will get elected.
Reason: Okay. So that explains why you're against third parties in general.
Randy Barnett: Yes.
Reason: So what is the specific threat that is posed by Donald Trump?
Randy Barnett: Because he's an authoritarian who doesn't believe in the Constitution or anything other than his own ego.
Reason: And we know this how?
Randy Barnett: From listening to him.
Reason: Okay.
Randy Barnett: Just listen to what the man says. He doesn't keep his stories straight from one minute to the next minute. He says whatever pops into his head at the moment. He's a dangerous demagogue and if I were somebody who cared about the immigration laws the way his supporters do, I wouldn't trust Donald Trump to deliver anything for me, because he'll just make a deal. He's already basically announced that. At any rate, he's a dangerous demagogue and costing him the election is a good thing.
Reason: What do you think about somebody like Ted Cruz, Harvard Law grad, talks about the Constitution in between every other sentence, every other word? He has essentially the same immigration policy. He wants to kick out 12 million people. He says Trump is soft on immigration because he would let some of those people back in. How would we enforce a law like that without becoming an authoritarian government and also if Trump, and I think you're right, he clearly doesn't give a shit about the Constitution. He probably has never read it anymore than he's read both books of the Bible, but Cruz has said, and he's against birth right citizenship. Cruz has said that he believes in retention election for judges. How is that different from kind of Trump ignored the Constitution?
Randy Barnett: Well, first of all, as you know, I was an advisor to Senator Paul during the campaign before his campaign ended and I was one of the people in the room helping prep him for debates. My opinion of Senator Paul continued to go up the more I was around him and also I can tell you, he's a very independent-minded fellow. He took our advice under advisement, shall we say. But I like him so much and so that was my first choice.
I know Ted Cruz and I have a lot of respect for him. I think he's, first and foremost, a constitutionalist. For example, when he was asked about the gay marriage case, the gay marriage issue privately, he was being secretly recorded in a New York fundraiser and he was asked about this privately and the person who was questioning him said, is this one of your top three priorities? Well, you would say the politically correct answer in conservative Republican circles is to say yeah, but that's not what he said. He said no, and the person who questioned him said, well, what do you mean? He goes, the Constitution is my top priority and under that vision, under his vision of the Constitution, marriage is a thing for states to decide.
Reason: So why was he backing Kim Davis? He was on a stage with her, the Kentucky county commissioner.
Randy Barnett: Look, I can't speak to everything that Ted Cruz does, but I can tell you that his position was that marriage laws— That the Supreme Court erred in taking marriage laws away from the state. I had a brief in the winter case that argued exactly that, arguing that DOMA is unconstitutional because DOMA—the Defense of Marriage Act—it's unconstitutional because it takes marriage away from the states where it belongs and so his position on gay marriage constitutionally is the same is what my position was constitutionally.
Reason: So the difference between somebody like Ted Cruz and Donald Trump despite many similarities and preferred outcomes necessarily is that he believes in the Constitution.
Randy Barnett: Right, and I think he will appoint judges who also believe in the Constitution. Now, we could go back— If I have a doubt about him, it would be back to our restraint versus originalism.
Reason: Because he yammers on a lot about unelected judges.
Randy Barnett: Well, I don't know if he does. I take your word for that. I haven't seen him yammer about that, but— I don't see that. But I would say that just knowing his history, I would sort of presume without knowing that maybe he's part of this restraint tradition that so many people like Chief Justice Roberts is, but, look, I think that Obamacare—
Let's go back to that for a minute. I think that politically that decision was a watershed moment. It was a defining moment, a critical moment, in our intellectual history, our political history. Up to that point, restraint, everybody was sort onboard with that. After that point building up to it, restraint didn't look so good and the one thing Ted Cruz has admitted he was wrong about and he doesn't admit he's wrong about very much, it was his support for Chief Justice Roberts. He said that was a mistake. That's huge. Since he doesn't admit that many mistakes.
Reason: We're going through a kind of a non-confirmation confirmation period. Do you think that—
Randy Barnett: My section mate in law school, Merrick Garland.
Reason: Okay. Well, I was going to ask you—is Merrick Garland Supreme Court worthy and is it wrong to deny him even a confirmation hearing?
Randy Barnett: Merrick Garland who was my classmate was one of the stars of the section. He was one of the gunners in the class that would challenge the professors the entire year. We all looked up to him and a couple of other people who were like in that upper echelon and he's a very very decent human being. Would be a wonderful adherent to the democratic Constitution. He is a deference guy. Par excellence. He defers to the EPA. He defers to administrative agency. That guy defers like crazy. And for that reason, as a matter of judicial philosophy, I think he would not be a good justice for us to have, so I would be opposed to him. But on character and fitness grounds and ability grounds—
But you see, part of the problem is evaluating justices on the basis of so-called "qualifications." As long as everybody was in agreement in the democratic Constitution, the post-New Deal understanding of what constitutions should be, which Republicans and Democrats were all in agreement about, then at that point, all you're interested in is qualifications—how smart are you, how good are you, because everybody basically agrees, but now we have a fundamental disagreement about the Constitution, starting with the Scalia appointment and, I mean, to some extent with Rehnquist, but Rehnquist, then Scalia, then Thomas, we have a disagreement about the Constitution.
Now, qualifications aren't enough. What you need is what Joe Biden used to say you have to look for and that is judicial philosophy and that gets us back to originalism. That is what a justice should be—an originalist, first and foremost.
Reason: Let me ask this—
Randy Barnett: So let me just say—qualifications are necessary but they're not sufficient.
Reason: This is a political question, not a legal one or a judicial one, but does it make sense for— Then is it legitimate for the Republican Senate essentially to forestall, to run the clock out on Garland's appointment or confirmation possibility. Is it legal to do that, and I guess it is, but is it proper to do that simply because you don't want to give the sitting president a shot at it?
Randy Barnett: It's every bit as constitutional. I mean, it's completely constitutional. In fact, I haven't heard a serious argument. Nobody makes a serious argument that it's not constitutionally permitted. It's all an argument about, as you say, whether it's proper or not and the Senate is as entitled to veto or fail to consent to a nominee as the president is to select somebody. The president did not select me or someone like me, he selected my classmate Merrick, and therefore he discriminated against me and he went with Merrick instead and it's a perfectly appropriate for the Senate to say we disagree about him and whether there needs to be a hearing or not actually at that point I would say there should not be a hearing because given that we are in the election cycle, given that this appointment's going to last far beyond this president's tenure, it's something that ought to be made an issue at the next election. It's something that the people as voters, the electorate, should have a say-so in how this Court's going to look in the future.
Reason: Can we talk a bit about how you developed your ideas and the larger libertarian legal movement? A couple of weeks ago at the Students for Liberty Conference, George Will was on a panel with myself and Matt Welch and Will was totally pessimistic. We were saying, okay, well, what's next for the libertarian moment and he's like, no, no, no, we're in an authoritarian moment. One of the few bright spots is the Libertarian Legal Movement led by people like yourself. What is the Libertarian Legal Movement and talk a little bit about how you became part of it and what constitutes it?
Randy Barnett: Well, first of all, I should mention George Will wrote an extremely flattering laudatory forward—
Reason: To your book.
Randy Barnett: That you didn't get a chance to read because it wasn't in the galleys, but I've read it, and it's like, wow, I mean, I would never have had the nerve to write this about myself, so I will forever be grateful to George Will for this.
Reason: And he is somebody who's kind of moved from a majoritarian perspective to the idea that the Constitution is a rights document, that really puts limits on government.
Randy Barnett: Yeah, he's totally moved, and as his conservative critics will remind him whenever he speaks on behalf of judicial engagement, they'll trot out all the old quotes from the Nixon days in which he was going the other way.
Reason: And that's kind of the nub of a libertarian legal movement, right? I mean, it's your definition of We the People as individuals as opposed to a kind of majoritarian democratic constitution?
Randy Barnett: Right. Well, this book is somewhat of a manifesto for that, although Clark Neely's book, Terms of Engagement, is really a manifesto for that. This is something a little bit broader and bigger, but along the same lines. It is intended to be a manifesto for what you might call the right of the American political spectrum. It's arguing why their sort of unreflected adherence to this progressive idea of judicial restraint and only enforcing the enumerated rights and not protecting liberty generally is something that a conservative should be for. It's an argument for that side of the political spectrum and as you say, it's an argument for political action. I mean, the hope was it would come out earlier than this and it would somehow inform the political debate we're now having. Hopefully coming out in April before the November election will be soon enough to have some influence.
Reason: But talk about where you came from. When I was scouring around and we've engaged each other over the years and what-not, but on Wikipedia, I know you were born in 1952. I'm not even sure where. Your hometown's not listed. You went to Northwestern as an undergrad, Harvard for law school. You taught at Kent College of Law which is part of Illinois Institute of Technology, Boston University. You're at Georgetown.
Randy Barnett: Right.
Reason: You were big in the Federalist Society. You have connections to the Institute for Humane Studies.
Randy Barnett: I was a Cook County State's Attorney.
Reason: Okay, there you go.
Randy Barnett: I was a prosecutor in Chicago from 1977 to '81. I was born in Chicago.
Reason: Were you always libertarian inclined?
Randy Barnett: Yes.
Reason: And talk about your early entry into that kind of world?
Randy Barnett: I was a liberty— There's like two general strains of conservatism—tradition-based and liberty-based, and I was a liberty-based one. I got my principles from my dad. That's where they came from.
Reason: What did he do?
Randy Barnett: He was in the laundry business. That's how I ended up working in a laundry. It was very hot in that laundry. There was no air conditioning back then in the summer. On the south side of Chicago was where his business was. I grew up in a place called Calumet City which is a south suburb. It's a very working class blue collar primarily Polish Catholic town on the border with Indiana. Most of the people there worked in the mills or in the refineries in northwest Indiana and when I was 12 years old, in my junior high school, I debated in front of the entire student body on behalf of Barry Goldwater and I remember I had to ride a bicycle— There's no Internet, so to get information, you couldn't get it from the media, so you have to get it from the Republican—
Reason: And there were no Republicans on the South Side.
Randy Barnett: No Republicans in Calumet City. I had to ride my bike over to Hammond and go to the Republican office and pick up brochures.
Reason: In Hammond, Indiana.
Randy Barnett: Hammond, Indiana, to get this information for my debate. I actually found my notes from my debate in my files. I have it. So that's— So Goldwater was like fantastic. It was extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue.
Reason: Do you think libertarians are born or made or is it a combination, because obviously you said your father was a kind—
Randy Barnett: It was a proto-libertarian. When I became a real libertarian in college, I expected to go home and get an argument from my dad because my dad was extremely opinionated. He was a very— He really argued. He always won. He was always right, so it always made it difficult to argue with him, although it was handy because if he told you something, you could rely on it being true. But he actually changed to be a real libertarian.
Reason: With that word libertarian rather than kind of traditionalist?
Randy Barnett: Yeah. And so I had a long struggle with a junior professor at Northwestern about libertarianism.
Reason: What did you major in?
Randy Barnett: Philosophy. I started off as political science but I discovered that it was all statistics and empirical stuff and I thought it was going to be political theory but it wasn't, so then I went to philosophy and it really was fantastic. Changed my life. I'm sure I'm a professor today because of that. And so I argued with this John [Cody], who was a junior classics professor Northwestern for about nine months and he would carry Mises around with him or Anarchy, State, and Utopia around with these marked-up thumb thing and we had this debate. We would meet periodically and debate and finally after about nine months, I thought, well, maybe he's right and maybe I'm not right about this and that's when I became a libertarian and by my senior year, I taught a student-organized credited seminar in my residential college on libertarianism where I taught the course.
Reason: What years?
Randy Barnett: I was in college from '70 to '74, so I would've taught that course in '73 or '74.
Reason: So, what was it like to be a libertarian back then because there was a New York Times magazine story in '70 or '71 about how libertarianism was the next big thing. Libertarian candidate in 1972 got one electoral vote—
Randy Barnett: John Hospers and Tonie Nathan.
Reason: The first woman to get an electoral vote. Was it a sense— Did you feel like you were on the vanguard of something or did you feel like you were out in the wilderness?
Randy Barnett: Oh, I felt like— It was like when you joined the Federalist Society as a student. You find—well, look, there's other people here that are like me. I'm not alone, and so there were other people. I was somewhat on my own at Northwestern and then I wrote a fan letter to Murray Rothbard saying I'm going to Harvard Law School, maybe someday I might meet you, but here's all the ways in which you influence me. He didn't respond, but he gave a copy of the letter to a classmate of mine, John Hagel, who at that time was president of a new organization called the Center for Libertarian Studies in New York, and John called me up and he was a first year law student along with me and we got to know each other and then we got tight and then he brought me down to New York and that fall of my first year of law school is when I met Murray Rothbard at Fordham where Leonard Liggio was giving a lecture and Murray was in the audience and that evening we actually ended up—John and me and Murray—in Murray's living room quizzing him about the hypotheticals that were tormenting us as law students.
Reason: Can you remember any of those?
Randy Barnett: No. All I can remember was his reaction, which was— I mean, I'm sitting there in law school hearing all these hypotheticals about is this right or is that right and I figured, well, as a good libertarian, I should have a libertarian answer but I didn't have one, so I thought, well, it's on me, and then we—both of us—gave us him these hypotheticals and Murray Rothbard, Mr. Libertarian, he couldn't answer them either. And that actually planted a seed that, wait a second, maybe these principles are general and they don't answer super specific questions all the time. Maybe there's a difference between the law and the more general principles of justice we're trying to see effectuated, but that was a very memorable moment and then I joined the board of the Center for Libertarian Studies which was a superstar roster of academics and maybe it's not a good idea to have a board of directors be all academic intellectuals because they tend to fight a lot, but Murray was there. Murray was on the board and other people like Ronald Hamowy and Bill Evers and it was just an all-star lineup and eventually Charles Koch joined our board and that's when I first got to know Charles.
Reason: Talk about that, because you also have connections with the Institute for Humane Studies which has been around since the early '60s and I know I benefited from it. You did as well and it helped create a kind of a funding source as well as an intellectual resource for libertarians that wouldn't be there otherwise.
Randy Barnett: Well, I just told you that I came down in the fall of '74 to New York and met Murray. That was my first year of law school. Later on that year, Murray recommended me for a fellowship from what was then called the Law and Liberty Project run by a man named Davis Keeler because they had a summer fellowship program and he recommended me for this program and then IHS gave— I didn't know about IHS, but IHS gave me this fellowship and it was that summer I wrote my paper, "Restitution: A New Paradigm of Criminal Justice" that was published in Ethics by the time I was a third-year law student, so my becoming a philosophy major is what first planted the seed of being a professor of something. I thought it might be philosophy, and then writing this article was my first experience doing scholarship and that came about as a result of Murray Rothbard recommending me to the Institute for Human Studies so had it not been for IHS giving me that fellowship, I don't know if I'd be sitting here today.
Reason: Talk about Murray Rothbard a bit as a person. He was part of virtually every aspect of the libertarian movement while he was around and he also alienated virtually every aspect of the libertarian movement. What is your memory of him and obviously you gained a lot of energy as well as insight from him, but is there more to say about him?
Randy Barnett: He was an amazing man. I still consider myself basically a Rothbardian.
Reason: How do you define that?
Randy Barnett: Well, it's basically property rights are sort of the core of what liberty is about. I ended up getting into a debate with Ronald Dworkin. Dworkin was my jurisprudence professor in law school, about the relationship between property and liberty and he said to me privately— He says, well, you're not a libertarian. You're a propertarian because property is fundamentally— And that really also got me thinking and I wrote a paper about that for Dworkin, so that's really sort of the Rothbardian—I mean, that and other things—are the Rothbardian perspective, so he had a huge impact on me.
He was a wonderful guy or he could be a wonderful guy. He also had kind of a dark side that when you deviated from whatever he thought was the line, he allowed a certain amount up to a point, but beyond a certain point, you kind of were dead to him in a way and at some point, I crossed some line and I was no longer— At one point, I was his fair-haired boy, so to speak, along with others, and at some point, I wasn't anymore, but I never stopped caring for Murray.
Reason: You mentioned Robert Nozick as well as—
Randy Barnett: He was very decent to me when I was a law student also.
Reason: Who were the other kind of intellectual lights that lit up your night sky?
Randy Barnett: Well, Nozick was not one of them. I mean, we who were Rothbardians looked askance a bit at this Anarchy, State, and Utopia business and it put libertarianism on the map in philosophy and had a huge role to play and he deserves a tremendous amount of credit for the respectability that libertarianism now has in academia, but the book itself has issues and I wrote a critique of the book actually early on, so I wouldn't say that Robert Nozick was a big influence on me. But Murray was definitely one.
And eventually Hayekian thought— I only saw— I never really met Hayek. I was actually on a boat cruise with him one time, a Mont Pelerin Society, and so he was sitting next table over. I took a picture of him. That's the closest I came.
Reason: How do you mean by Hayekian?
Randy Barnett: Hayekianism has to do with evolutionary notions, spontaneous order, something that really plays a big role in IHS intellectual agenda and so back in the days when I was really in Murray's camp, I mean, Murray didn't care for Milton Friedman very much and Murray didn't care for Hayek very much and so we didn't either, but I changed my mind about that.
Reason: But then the idea of Hayek is that you don't need as many top-down regulations or you need just a few and then you kind of let a lot of experiments play out and people will adopt what works and let go what doesn't.
Randy Barnett: Well, if you look at my book, The Structure of Liberty, which is my take on why we have the rights we have—
Reason: And that's from '98?
Randy Barnett: Yes, but a new edition just came out a year or two ago with a new afterword so it's actually available in an affordable paperback edition, because the other one was getting unaffordable and the first part of it is really Hayekian. It has to do with— It says that we have the rights we have because of three basic social problems that every society must confront—problems of knowledge, problems of interest, and problems of power.
Well, the problem of knowledge was Hayekian, this notion that we need a discovery mechanism to figure out— To aggregate and somehow coordinate what all of us knows given how ignorant we are of everything else that we don't know.
Reason: And in the economics, that what prices do.
Randy Barnett: Exactly. And I defend that. I use that price mechanism in my book, so the first part of it is very Hayekian but then it's tempered with other insights, the problems of interest and the problems and power go beyond what Hayek is talking about. That book is an attempt to sort of bring into under one rubric most of the major arguments for liberty and to show how they relate to each other, not to say there's only one argument but there are several because the rights we believe in solve multiple problems in multiple ways and so there isn't just one reason why they're good. There're multiple reasons.
Reason: Talk about Charles Koch. He has funded many many institutions on the libertarian aisle or in the libertarian aisle, let's say. What kind of impact do you think he's had overall on the liberty movement?
Randy Barnett: Well, as I said, I hadn't seen him for I don't know, 30 or 40 years, from the Center for Libertarian Studies days until recently and I introduced him when he was getting an award and I said, well, you know, back when I first met Charles, I was just a law student and he was just a millionaire. We've both come a long way since then. And I have a world of respect for him. I think what's happened to him, what the left has done to demonize him, is absolutely wrong. I mean, he has to have security with him at all times. There's been all these terrible threats to him, and not only do you have activists threatening him, which is bad enough, but you have government officials singling him out by name for abuse—
Reason: Not just government officials, the president.
Randy Barnett: The president or presidential candidates like Hillary Clinton singling him out by name and this is just wrong. In a republic this should not be happening. And so he is the victim of terrible injustice and the ironic thing about this is that he isn't this right-wing conservative. He is a libertarian.
Reason: Well, that's what interesting. There's kind of a Streisand effect going on where the left needed a villain. In many ways, the right did this with George Soros a decade ago.
Randy Barnett: Yes, but rightly so.
Reason: Well, I was going to say, but it brought more interest into Charles and David Koch and David sits on the board of trustees of Reason Foundation and suddenly you find out these guys are libertarians, they're not conservatives, and it blows peoples' minds.
Randy Barnett: Because they're not really bringing their minds to this question to begin with.
Reason: Talk about the Federalist Society because the Federalist Society clearly has had a major role in kind of bringing a new set of conversations and debates to legal education. You were very active in it from what I understand when you were teaching at Boston University and you still are, but what has its role been in the libertarian legal movement?
Randy Barnett: The Federalist Society has had a hugely formative role to play on me. I probably wouldn't be teaching— I wouldn't be a constitutional law guy if it weren't for them because I started off as a contracts guy as a law professor because when I took constitutional law and I was turning the page of the con law book, all the good cases were bad cases; all the good parts of the Constitution turned out not to mean what they thought they meant, the 2nd Amendment, the Commerce Clause, nothing. So, I said, look, if the Supreme Court is not going to take the Constitution seriously, why should I and given my radical libertarian background, this was not a hard conclusion for me to reach and so when I became a law professor—
First, I was a criminal lawyer which is what I went to law school to become, a criminal lawyer, and I did that. I was a prosecutor and then when I entered academia, I did it as a contract scholar because writing still matters, law still matters, I believe in freedom of contract. That's how I started, and then I got invited to a Federalist Society National Student Symposium, the fifth one on the First Amendment held in Stanford, and I was invited by a student who I'd met through IHS and at that point, he went on from Harvard MBA to Stanford Law and he invited me and I said, you know, Brian, you know I don't do the Constitution so, you know, I don't want— He says, well, you know, you're a smart guy, you only have to talk for 10 minutes, you can think of 10 minutes of something to say and it was a conference on the First Amendment.
And I really wanted to go because I was an obscure professor at Chicago-Kent College of Law and there were all these heavy-hitters there on the panel at Stanford Law School and I really wanted to go, so I said I would, and it was as a result of writing that paper on freedom of association that I hit upon my interest in the Ninth Amendment because the Ninth Amendment says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people, because I was on a panel on the First Amendment on freedom of association. Well, freedom of association's not mentioned in the FirstAmendment, so my challenge—
Reason: But it's freedom of assembly.
Randy Barnett: Yeah, but not association. So, I thought the Federalist Society at that point was a monolithically right-wing organization with no libertarian dimension to it. I was wrong but I didn't know that, so I walked into the room joking— My opening remarks joked about how I only bought a one-way ticket thinking the reception of what I was going to say was so hostile and so the punch line to my talk about freedom of association was— Because I said I know what you're thinking—what gives lifetime-appointed judges the power to say that this is a liberty that will be protected and then but in the Constitution it says, and then I just said the words of the Ninth Amendment. And this huge cheer and roar came up from the students. They were cheering. And I thought, I must have the Federalist Society pegged slightly wrong.
And after that, I had to decide— I'm not a joiner, Nick. I'm kind of a contrarian guy. You must know how that feels. And so, you know, I don't necessarily want to be a member of any club that will have me, but I had to decide: Do I want to throw in with the Federalist Society or not? Because we don't agree about everything, but the Federalist Society is a coalition. Libertarians are part of their coalition. They're very, very respectful to libertarians.
Eugene Meyer, who is the president of the Federalist Society, his dad was Frank Meyer, who was the developer of fusionism, to fuse libertarians with— That's their philosophy. Therefore I threw in with them even though I didn't always agree with them, and they've been unbelievably generous to me. It's been one of the greatest professional associations of my life and they're a wonderful organization. They do wonderful things, but I will say that I believe the organization has moved in the direction of judicial engagement from where it used to be. Things are different in the Federalist Society and partly because it's a grassroots organization that reflects the tenor of its members.
The national organization is super tiny. They don't dictate and the membership has moved in our direction, again, in part because of that salient moment over Obamacare. Things are different now and so the entire organization has really moved.
I debated J. Harvey Wilkinson after the Obamacare case was decided at the Rosencranz Lecture at the Federalist Society in the ballroom of the Mayflower Hotel and years ago, if there had been that debate versus a judicial restraint guy and me, he would've had the room and I would be the renegade. That day, people will tell you, the room was with me and he was the renegade and that was a sea change, an intellectual sea change, that has taken place.
Reason: A couple of years ago I interviewed Mark Tushnet, Georgetown law professor.
Randy Barnett: I actually occupy his office. He left Georgetown. He fled Georgetown as I was arriving and I got his really nice office.
Reason: About 10 years ago he wrote a book called A Court Divided and it was about the Rehnquist court and as part of his argument in which he became increasingly respectful of Clarence Thomas who had often been kind of dismissed as a lesser thinker and whatnot, but he said, you know, the Supreme Court, it has an effect but he said that it's kind of noise around zero in that sometimes it's slightly ahead of where the population is going. Oftentimes, it's behind and it actually just kind of ratifies social change. Do you think that that's accurate? And if so, does that mean that a lot of the drama that we see around the Supreme Court is misplaced?
Randy Barnett: I think it's accurate. I think the Supreme Court, like all of us, are creatures of the moment. We like to think of ourselves as completely outside the moment, but within limits we can't be. Libertarians are more outside the moment than most people because we don't fully buy into— In fact, this was an idea, an insight I got from Murray. He said that intellectuals themselves, people who are generally intellectuals, are not usually a part of the overall majority and for some reason, they're out and it's because they're out they look at what's going on from a somewhat outsider's perspective and they can see what's going on differently than people that are a part of it, so you don't get more conventionally minded than people that successfully are nominated to the Supreme Court. These people are the insiders' insider. There's no out—
I mean, Justice Thomas is unusual because he had a very different route to the Court through his activities in the EEOC, but other than that, it was like a fluke, but mostly these are the insiders' s insiders. They see things the way the— And they're people who went through their whole life cultivating their normalcy. We're not like them, so they're very conventional minded and therefore they're never out too far or ahead of the skis I think is the way the metaphor works or behind. They really try to stay the course because that's how they've lived their whole life or they wouldn't be on the Supreme Court.
Nevertheless, at the margin, the Supreme Court matters a lot. Ask anybody who now has a right to— Ask any resident of D.C. I just bought my first gun last week. I've never bought a gun in my life. I've shot guns all my life. My dad had guns, but I never owned one. I didn't want to or need to. Now, I think it's a patriotic duty to have one and I bought my first one last week. I live in the District. Had it not been for a Supreme Court decision, it would be illegal for me to do what I did.
Reason: And maybe it would happen but it'd be 10 years down the road or something.
Randy Barnett: It wasn't going to happen. They're still trying to make it as hard as possible. And they won't allow concealed carry like other parts of the country, so Supreme Court cases do make a difference. If we had managed to strike down Obamacare, it would've made a difference.
Reason: Final question—you seem optimistic about the move, partly because of the Obamacare decision but also because of this groundswell of libertarian legal thinking, are you optimistic about the future and what is the one or two things that you could see really blocking forward momentum?
Randy Barnett: I think I'm normally considered to be an optimist. I'm actually pretty realistic. I was a Cook County State's Attorney. I understand what crooked courts are like. I understand what the [real world] is like better than most academics do, maybe better than even some libertarians do, so I don' t know that I'm not really actually optimistic, but I just think you have to have a positive attitude going forward.
We could be on the brink— I could be on the brink of going back and being a contracts professor again. Seriously. If the Court changes and constitutional law then veers back off into the New Deal direction, do I still want to be beating my head against the wall? I don't know.
Reason: From your undergrad days or from working in your father's laundry, do you the think the world is more or less libertarian?
Randy Barnett: Well, I've read your stuff, Nick, so—
Reason: Well, I know what I think.
Randy Barnett: I definitely have to agree with you about with this.
Reason: No, but I'm saying because for all of the incursions, all of the regulations, all of the laws, all of the wars, all of the this, all of the that, on another level, things are better than they used to be.
Randy Barnett: I think in many respects things are better than they used to be. I think where things are worse than they used to be is on— Civil discourse is not as good as it was once. That's too bad.
I think where things are worse and where libertarians have not factored this into their conventional wisdom is that the Democratic Party has become a party of the left. It wasn't really a party of the left. It was a liberal party in the social democratic sense of liberal. It's now become a European style left party since the McGovern thing happened and then they've just taken over as well as academia used to be liberal and now it's left. This is all bad and I think this is one of the several factors that has led to the Trump development because if you have a European-style party of the left, then to have an American conservative party seems tepid and somehow not appropriate. There's a natural vacuum left for a European party of the right. That's very dangerous and that's very objectionable. That ends up being worse from a libertarian standpoint than a Social Democratic Party is, you know, whatever, so things have gotten worse, but on the other hand, and this is going to make me seem like an optimist, things are darkest before the dawn.
If Ted Cruz— If I'm right about Ted Cruz being a president who might appoint real constitutionalists to the Court and blah…and all the rest, Ted Cruz probably wouldn't be close to Donald Trump now if it weren't for Donald Trump haven't cleared the field of everybody else. By the time this airs, people are going to know what happened better than we do, but there is a possibly good scenario that comes out. It's a low probability event at this point, but it's better than zero, that we could actually be in a better place a year from now than we are today.
The Democrats are very beatable right now, but somebody needs to beat them with something that's closer to the republican Constitution I talk about in my book. I think it's down to two guys now on the right side of the spectrum and one of them I think would be good for this and the other one would be terrible.
Reason: All right. We will leave it there and the book is Our Republican Constitution:Securing the Liberty and Sovereignty of We the People, by Randy Barnett. Thank you so much.
Randy Barnett: Thanks, Nick.
Reason: For Reason TV, I'm Nick Gillespie.
