Randy Barnett: Originalism, Obamacare, and the Libertarian Movement

Libertarian legal giant Randy Barnett on his epic Supreme Court battles, the Federalist Society, and watching movies with Murray Rothbard.

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Randy Barnett: Originalism, Obamacare, and the Libertarian Movement

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Today's guest is libertarian legal giant Randy Barnett, who has just published his memoir, A Life for Liberty: The Making of an American Originalist. Currently a law professor at Georgetown, Reason's Nick Gillespie talks with Barnett about his days as a prosecutor in Chicago, how he helped create the legal philosophy of originalism, what it was like arguing medical marijuana and Obamacare cases at the Supreme Court, and what he learned from anarcho-capitalist Murray Rothbard. They also discuss why he thinks the libertarian movement needs an intellectual reboot and how his working-class, Jewish upbringing in Calumet City, Illinois, remains central to his identity.

0:00— Introduction

1:05— Gonzales vs. Raich (marijuana legalization)

6:15— United States vs. Lopez (gun-free school zones)

20:11— What is Originalism?

25:40— How Barnett became an originalist

27:20— How the 9th Amendment kickstarted Barnett's Constitutional law career

32:30— Lysander Spooner, slavery & the Constitution

38:28— Ad: Bank On Yourself

40:10— Calumet City Contrarianism

47:54— Murray Rothbard

54:50— Libertinism vs. libertarianism

57:48— A libertarian lawyer who didn't inhale

58:48— NFIB vs. Sebelius (the 'Obamacare' case)

1:09:48— The Libertarian Movement's influence

1:16:55— Ideas & the Academy still matter!

Previous appearances:

• "How the Conservative Supreme Court Is Changing America," July 3, 2022
• "Randy Barnett on the Secret History of SCOTUS Confirmation Hearings," July 27, 2018
• "Everything You Need To Know About Neil Gorsuch (Including Roe v. Wade)," February 2, 2017
• "Democrats Abandoned the Rule of Law. Under President Trump, Will They Help Restore It?" November 9, 2016
• "Randy Barnett on Trump, the Supreme Court, and the Future of the Republican Party," August 15, 2016
• "Randy Barnett: How To Secure Our Liberty Through 'Our Republican Constitution,'" April 7, 2016
• "Randy Barnett: Secret NSA Snooping Is 'a Fundamental Challenge' to Democracy," August 19, 2013
• "Randy Barnett: Losing Obamacare While Preserving the Constitution," July 12, 2012

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Comments

[Alan Vanneman]

I can’t say that I’m impressed by “libertarian giant” Randy Barnett. In his recent article for the Atlantic, Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution, Professor Barnett explains why the “non-originalist” theory of “judicial restraint”, which he sees as amounting to “let the legislatures decide everything,” enunciated in an 1893 Harvard Law Review article by James Thayer, led, three years later, to the infamous Supreme Court decision in Plessy v. Ferguson. His “argument”, I find, is thin.

First of all, Plessy was an 8-1 decision. How likely is it that all eight justices even read Thayer’s article in the first place, let alone were convinced that it was valid? One wonders. Does Professor Barnett assume that Justice Harlan, the lone dissenter, was the only “originalist” on the Court? The Plessy Court was the same Court that generally, in Justice Holmes’ famous gibe, assumed that the 14th amendment enacted Mr. Herbert Spencer’s Social Statics. If they were so casual about state legislatures invading the rights of black people, why were they so righteous in the defense of property rights, striking down any and all manner of “Populist” legislation?

The Supreme Court has taken the position that cases interpreting Constitutional law decided contemporaneously with the Constitution itself, or, in this case, one of its amendments, should be given special deference. Six of the eight-member majority were in their thirties when the 14th amendment was enacted, and the other two were in their twenties. They were, moreover, the precise audience whose presumed understanding of the amendment’s text, according to originalist doctrine, should guide our understanding of the amendment’s supposed “true meaning”. How likely is it that eight of nine would get it “wrong” (according to Professor Barnett)? Isn’t it more likely that he would get it wrong, since they were there, and he wasn’t?

Brown v. Board of Ed was, of course, a unanimous decision. Does Professor Barnett think that the Warren Court was originalist? Was William Douglas an originalist? Huh? I find this particularly interesting because originalist “giants” like Rehnquist, Scalia, and Thomas have endlessly trashed Brown v. Board of Ed. In fact, in the 1996 decision, United States v. Virginia, Rehnquist concurred in a decision overturning the state of Virginia’s practice of excluding women from Virginia Military Institute only because the state had failed to provide a “separate but equal” institution for women. In other words, Plessy got it right. Was Rehnquist not an originalist?

In my own substack blog, Literature R Us, I explain how, well, “How the Federalist Society Destroyed the U. S. Constitution”. If Professor Barnett is interested in having his consciousness expanded, he might give it a read.

[It's only a paper moon, Nominalists]

Plessy was wrong on many counts, two of which you completely miss. It was the government that made white-as-a-lily Plessy into a Black, He had one out of 8 great grandparents who was "Black".
Also , declaring all men are created equal incl Blacks (based on a bogus science experiment with dolls !!) is no way for grownups to decide such horrendous social problems.
As Clarence Thomas rightly observed --- and you miss- one of the first results of Plessy was to say that HBUC were inferior inherently because they were are all Black.

Your view and their view are both NONSENSE>