This week Randy Barnett joins host Roger Ream to discuss the ideas of constitutional originalism, natural law vs. natural rights, the importance of the ninth amendment and how they all inform his interpretation of libertarianism. Plus, the benefits of teaching constitutional law through a narrative lens and stories from Randy’s newly released memoir, “A Life for Liberty: The Making of an American Originalist.”

Randy is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and is the Faculty Director of the Georgetown Center for the Constitution. He has argued numerous high-profile cases before the U.S. Supreme Court and as a legal scholar is perhaps the foremost expert on the ninth amendment to the Constitution, among other provisions. He is also a member of the advisory board for the TFAS Summer Law Fellowship program and has been a favorite guest lecturer in that program.

Episode Transcript

The transcript below is lightly edited for clarity.

Roger Ream [00:00:02] Welcome to the Liberty + Leadership Podcast, a conversation with TFAS alumni, faculty, and friends who are making an impact today. I’m your host, Roger Ream. I’m very excited to introduce my guest today, Professor Randy Barnett. The conversation with Randy is always guaranteed to offer insights, important observations, humorous anecdotes, and memorable ideas, ideas we can all steal and actually use as our own. In truth, I always give Randy credit when I share one of his insights with our students. Randy is the Patrick Houghton Professor of Constitutional Law at the Georgetown University Law Center. He has argued high profile cases before the United States Supreme Court, and as a legal scholar is perhaps the nation’s foremost expert on the Ninth Amendment to the Constitution. Additionally, Randy has written a dozen books and well over 100 articles and reviews in academic journals, newspapers, and magazines. His latest book, “A life for Liberty: The Making of an American Originalist” has just been published by Encounter Books. Randy is a member of the advisory board for our TFAS Summer Law Fellowship, and has been a favorite guest lecturer in that program. Randy, welcome to the Liberty and Leadership Podcast.

Randy Barnett [00:01:29] Roger, thanks for having me. It’s great to virtually see you this way.

Roger Ream [00:01:33] Well, I really enjoyed your new book and we’re going to talk about that. I might start just by saying a conversation with you about your career and your writings tends to be a very real sense of many conversation about the constitutional interpretations. So, I hope our listeners are ready for almost a class in civics, but certainly and learning about our Constitution, and I hope our conversation today will draw out many of the brilliant insights that you’ve written about the meaning and purpose of the Constitution. Before getting to your book, perhaps, I could ask just a few questions to lay some groundwork. In your previous book, which actually I have here “Our Republican Constitution,” it’s an excellent book, too, and I encourage people to to buy and read that, but you describe how divided our countries become and that left and right basically have two understandings of the Constitution. Could you explain that thesis that you developed in that book and whether or not we can restore a common understanding of the Constitution or how we go about trying to do that?

Randy Barnett [00:02:44] Thank you for the compliment. That book, “Our Republican Constitution” is a book that I wrote for a general audience. It’s one of the two books that my wife has read and really likes, the other one being the memoir that we’re going to talk about later. In there I lay out two different conceptions of popular sovereignty, which is ruled by “We the people,” because obviously our Constitution starts off with the people and there are really two ways of reading “We the People.” We could read “We the People” collectively as a group, in which case popular sovereignty consists of democratic self-government, in which a majority obviously has to get their way and if there’s any reason why the majority is not getting their way, then there’s some question of legitimacy involved with that. “We the people,” as a group that I call that democratic legitimacy or democratic conception of the Constitution. If you have a democratic conception of the Constitution, things like judicial review or get in the way because you have unelected, unaccountable judges who are telling the people through their representatives that they can’t do somethin and that’s a problem. That’s one conception of sovereignty, popular sovereignty. The other one is “We the People” as individuals. I believe that’s the conception of popular sovereignty, that it was enshrined in the Declaration of Independence, which, after talking about the inalienable rights of “We the People,” which are the rights to life, liberty and the pursuit of happiness, it says to secure these rights, governments instituted among men, deriving their just powers from the consent of the governed. So, the purpose of the government, the purpose of popular sovereignty, is to protect the rights of “We the people,” each and every one of us, and we have a system of government called the republican form of government that has various ways of protecting those rights, including a Democratic House and a Senate that’s composed state by state, which was originally selected by state legislatures, and then we have an independent judiciary there also to protect the rights of we the people. So, that’s the individual conception of popular sovereignty that I call the republican conception of the Constitution. We have this fundamental clash, and this relates back to when people say we don’t have a democracy, we have a republic. Another people say, stop saying that. For some reason that annoys them a lot. I think we don’t have a pure democracy. We have a republic in which there are different elements, including democratic elements within it, but the ultimate end is not securing the will of the majority, but the ultimate end is to secure the rights retained by the people.

Roger Ream [00:05:06] Yeah. I mean, I still remember in my seventh grade civics class, my teacher, who was very good, used to always stress: “We are a democracy within a republic,” and I thought that kind of captured that sentiment. I mentioned in my introduction that you often have a way of saying things that makes it easy for people to steal your lines, and one of your lines, I was attributing it to you that I love is when you said that the Constitution is the document that governs those who govern us. I think that is a follow up to what you just said. I think that’s a brilliant way of putting it. I’m not sure Americans are taught that anymore, but explain exactly what that means, that the Constitution is a document that governs those who govern us.

Randy Barnett [00:05:51] The government makes laws to govern us. But the question is, what governs them? The Constitution is the law that governs them, the law that governs those who govern us. The reason why that’s important is that just as “We the People,” cannot change the laws that the government makes to govern us without going through the legislative process. The government can’t change the law that governs them, which is the Constitution, without going through the amendment process. They can’t change it on their own. Much as some people would like to see the Supreme Court change the Constitution in a way that they would prefer. So, that’s why it’s important to realize that with a couple exceptions and the Constitution just doesn’t bind “We the People,” it binds those who govern us. There’s lots of reasons for thinking that’s true, but here’s the most important one. “We the People,” are never asked unless we’re immigrants who are naturalized Americans, were never asked to take an oath of loyalty to uphold the Constitution. So, any consent we give the government is somewhat hypothetical. But when it comes to government officials who take power under the Constitution, each and every one of them takes an express oath to uphold that Constitution. And that oath would really mean nothing if it only meant the Constitutio, whatever they think it says or whatever they want it to me, and that would be an oath to nothing, but it’s not an oath to nothing, it’s an oath to a document that has a meaning independent of their will that’s imposed on them, and that they have morally bound themselves to follow in as solemn away as we enter into most of the contracts we enter into as individuals every day. You can click “I agree” on your screen and get a download or something without putting your hand on a Bible or on some other book and swearing an oath to follow the Constitution is at least as solemn as clicking “I agree” on a screen.

Roger Ream [00:07:43] To paraphrase the title of another book of yours, “Restoring Our Lost Constitution,” we obviously drifted a long way from that concept, that the Constitution was this document that governs those who govern us. Congress has expanded what it does well beyond article one, section eight, powers that are enumerated there and the executive branch, the administrative state has grown. But you’ve played a very important role in recent decades, decade or two, of trying to restore that lost constitution. I want to get to your memoir in your some of these cases in a minute, but you had a piece in The Wall Street Journal very recently about originalism, and in a sense, we’re all originalists now. So, could you touch on that concept of originalism? I know they vary, but, what do you see as originalism and what’s that about?

Randy Barnett [00:08:32] Well, I can define originalism in one sentence, and that is the meaning of the Constitution should remain the same until it’s properly changed by amendment. Now, that’s pretty simple. I’ll say it again. The meaning of the Constitution should remain the same until it’s properly changed by amendment. It’s not properly changed by judges, is not properly changed by Congress, is not properly changed by a combination of Congress with the judges. It’s properly changed by amendment. If you put it that way, it’s just seems so commonsensical that you don’t even need a theory of it. And in fact, there wasn’t even a name for that approach until 1980, when a critic of originalism devised the term originalist. This is Paul Brest, who’s a dean at Stanford Law School, wrote a criticism of originalism. He had to both, invent the term, and then he had to reconstruct a theory because there really was nobody doing theory of originalism. They were just following the common sense that the meaning of the Constitution should remain the same until it’s properly changed. And so, from 1980 forward, we started having a debate about originalism and the theory of originalism. I, as the book talks about, have been deeply involved in developing the theory of originalism, which was necessary in order to establish its legitimacy against people who thought judges should be able to update the Constitution to something that was better. Now, I also want to say one more technical point about originalism. Originalism is not a single theory. You mentioned originalisms, there are various theories of originalism, but it’s a family of theories. And that family of theories shares a family resemblance. That is, if you look at a person’s family, you could see the kids look like each other, and the kids look back on the mother or the father and you say: “Well, what is the family resemblance?” Well, the family resemblance that sort of unifies all originalists are two propositions. One is called the fixation thesis and the other is called the constraint principle. The fixation thesis is a descriptive claim that the way language works is that the meaning of the text of the Constitution is fixed at the time that it’s promulgated, that it’s announced, and that it’ll be various times, both in when the original Constitution was made, and then in 1868, for example, when the 14th Amendment was promulgated. Its meaning was fixed at that time, the way a letter you would write, the meaning of a letter is fixed when the letter is written. If you open up a 14th century or 15th century letter and you see the word “Deer” in the letter, that meaning the meaning of that word is fixed as a 15th century. At the time, by the way, deer, then did not mean what we think, deer, is the kind of like Bambi and Bambi’s mother kind of deer. Deer meant four legged mammal. So, for example, if we were barred  from hunting deer in the King’s forest, you couldn’t hide any four legged mammals in the Kings Forest. Now, if you took our meaning of the word deer, and you put that back into that letter, you’d be misreading the letter. So, the first claim about that original was it makes is the fixation thesis, and that is the meaning of the Constitution is fixed when it’s promulgated. But that’s just a descriptive claim. You could contest it and say: “Well, that’s not the way language works,” or something like that. But originalism has a normative claim as well. It’s the constrain principle. And that’s the principle that says: “Constitutional actors ought to follow the fixed meaning of the Constitution. Constitutional actors ought to adhere and uphold the meaning that’s fixed in the text of the Constitution.” That’s a normative claim, not a descriptive claim, and then you have to make a normative argument on behalf of it. And as it happens, there are multiple normative reasons why constitutional actors ought to follow the fixed meaning of the Constitution. I’ve already given you one, and that is they take an oath to do so, they promise to do so, but there are others as well.

Roger Ream [00:12:17] Yeah. And even our most recently confirmed justice, Justice Jackson, I think, talked about being an originalist at her hearing.

Randy Barnett [00:12:26] I’ll pick one nit. She doesn’t call herself in originalist, but when she describes how she should do her job, every single thing she said was absolutely good originalism. Stated more eloquently by her than by some of her predecessors. So, everything she said about her duty as a judge to follow the meaning of the text and what that meaning was and how you would discover it, that was all really hard core originalism. She just didn’t use the label.

Roger Ream [00:12:53] Well, now, your book, “A life for Liberty: The Making of an American Originalist,” just out, from Encounter Books. It’s fascinating. I want to ask you first what, inspired you to write it?

Randy Barnett [00:13:06] I had my first grandchild about eight years ago, and then I subsequently had three more, and there’s a fifth on the way. And as I was now figuring, relating to a grandson or a grandchild, I thought, you know, someday they might want to know what their grandfather had done in his life, and the grandfather might not be around to tell him, or they might not sit still long enough to hear all the stories their grandfather might say, but they might appreciate having a book. Just as I wish I had a book from my ancestors, I wish I knew more about what my ancestors had done with their lives. I really like to know. So, I just set out to write this for them and without any real thought of publishing it, I just thought, at the best I would maybe self-publish it, but it was written as an exercise for their benefit. But as I got into the writing of it and we can talk about this, I started, sort of realizing that there were lessons to be learned from my life and examples that people could follow in both what to do and also what not to do if they want to have a career in which they can sort of, protect liberty or pursue justice, which was my overriding mission as my entire career is the pursuit of justice. So, I thought that would be a, a purpose for publishing the book. And then the other thing that the book turned into was sort of a thank you or a testimony, a testament to my mentors, the people who made me the person I am, because even though I’m an individualist and I believe in individual rights, I also believe we’re social creatures and we get where we’re growing with the help of others. I wouldn’t be the man I am without the mentors I had. So, this is also a story of the individual mentors, and therefore it’s kind of a lesson in cultivating mentors and the importance of having mentors if you’re going to try to pursue the good life and flourish as an individual.

Roger Ream [00:14:59] Well, it’s rich in detail. There are some absolutely fantastic stories, from your upbringing and Calumet, Illinois,.

Randy Barnett [00:15:07] Calumet City.

Roger Ream [00:15:08] I love, just the short line when you said your father wasn’t much of a sports fan and you tried to get him to take you to Kaminski Park to see the White Sox, and he said: “If they come watch me at work, then I’ll go watch them at work.”

Randy Barnett [00:15:21] Exactly.

Roger Ream [00:15:21] I laughed out loud when I read that.

Randy Barnett [00:15:23] That was my first mentor. My dad was my first mentor, the ultimate contrarian. I’ll go to see them at work when they come to see me at work.

Roger Ream [00:15:29] You describe in there your journey from Goldwater conservative, I guess in middle school or, in 1964 to becoming self-described libertarian when you were at Northwestern. Can you talk about that journey?

Randy Barnett [00:15:44] Well, I got my politics from my dad, my first mentor. He was a conservative Republican, street fighting kid, Jewish kid from the South side of Chicago, literally South Shore of Chicago. I grew up in Calumet City, which is south of Chicago, but I didn’t grow up in Chicago. Calumet City was his own thing, culturally more a part of Northwest Indiana, actually, than the Chicago, the greater Chicagoland area. So, I got my principles from him and I did, in fact, debate on behalf of Barry Goldwater, as the book talks about in front of my entire junior high school and grade school student body. Hundreds of students in this auditorium. I have my debate notes. So, I could actually quote my summation. As a 12 year old in 1964, because in my 12 year old heart, I knew he was right. I still think he was right. And that’s what kind of got me going. I actually remember the Nixon Kennedy race as well, but my first appearance on the scene as a speaker or an advocate came from Goldwater. You know, in those days, there was very little you could get to by way material. So, National Review was pretty much the only thing you could get. I think we also subscribed to Newsweek as an alternative to subscribe. Maybe it was U.S. News and World Report. Maybe that’s the one we subscribe to. It was really hard to get information in those days. I had never even heard of libertarianism at all until I got to college. I had a classmate who started talking to me about it. She was active in “Young Americans for Freedom.” She was somebody who lived and had had meals in the same dorm. And when I heard the word libertarian from her, I said: “I don’t really want to hear any more about it,” and the reason I didn’t want to hear any more about it is I thought that word sounded weird to me, and that was it. I mean, that was the end of our conversation. She was good friend. She didn’t pester me about it, but we ended up living together in a residential college, the Philosophy and Religion residential college at Northwestern, and she invited a libertarian professor to give a talk on libertarianism to our students who live there. I’m sitting there listening to this and I thought: “Hey, this is rational conservative. This is what this is what I’ve always been looking for.” Because there was no systematic explanation of what conservatism was. I mean, there’s Russell Kirk and there’s a few other writers, but they’re not present a theory of it. In fact, even to this day, there really isn’t a theory of conservatism, frankly, which is one reason why libertarianism still has appeal, even to conservatives. And so, after I heard that, I spent about, 6 or 9 months or whatever it was meeting with this same professor over coffee at the student union and arguing with him about why he was wrong until after a bit of arguing, I finally decided to think: “Well, yeah, he had answers for everything and, well, maybe I’m the one that was wrong.” And then by my senior year of college, I was able to teach a student accredited seminar, student organized seminar for credit at northwestern on libertarianism. He was the faculty sponsor for it, and then I just did this thing. So, my senior year, I was kind of all in. And then the next big step was when I went to Harvard Law School. I had written a fan letter to Murray Rothbard saying how about a big influence he had on me. He’s a libertarian economist, and he wrote the book “For a New Liberty,” one of the books that we taught it in my seminar. And I said: “Maybe one day I will get a chance to meet.” He gave it to a classmate of mine who had started Harvard Law School with me, John Hagel, and then shortly thereafter, John took me down to New York. And that’s when I met Murray and Leonard Laojiao and others for the first time, and I became involved in the libertarian circle in New York, the intellectual circle, and joined the board of directors of the Center for Libertarian Studies.

Roger Ream [00:19:24] In a recent piece you wrote for Law and Liberty, as well as in your review of a couple of books in the spring 2024 issue of the Claremont Review of Books, you reference Frank Meyer, someone who wrote for many years for National Review and developed a concept that came to be known as fusionism, even though I don’t think he like the word or ever used the word. Without getting too far into the weeds, could you discuss how those of us who have a strong commitment to liberty can bring into that commitment an emphasis on the good and virtue and kind of what you’re calling for in these pieces that are very provocative and interesting pieces you’ve written recently?

Randy Barnett [00:20:08] I didn’t know much about Frank Meyer other than who he was, and that he was associated with fusionism. He was a writer for the National Review. He was a close associate of William Buckey, but I didn’t know that much about it other than what people said about him. Jeanne Meyer, the outgoing president of the Federal Society, is his son. But in the course of doing what you’re suggesting,  developing what I hope will be one of my next books on libertarianism. I had occasion to read Meyer’s book “In Defense of Freedom” for the first time, not that long ago. By the way, I highly recommend it. You can get an inexpensive version of it that was put out by Liberty Fund on Amazon. And it’s a wonderful argument for why Liberty movement, libertarianism, needs not only a commitment to natural rights, which libertarians tend to share, but also a commitment to natural law, which is something that I had actually a commitment to before I even heard of libertarianism. When I was in college, I became a philosophy major, in the end of my first year of law school and my first year of college and my the philosophy professor that had the biggest impact on me was a man named Henry Veatch, who was a Aristotelian Thomas natural law philosopher. So, I became a natural law adherent before I even heard the word libertarianism, and before I even heard about natural rights. So, what’s the difference between natural law and natural rights? It’s an obvious question. Natural law can be described as addressing the problem of how one should live one’s life? What does it take? What kind of action should you do? What kind of person should you be in order to flourish as an individual person? So, we talk about the virtues. The virtues is how you should be, and that should be internalized, and we talk about vices, which are the things that you should avoid. So, basically natural law is the study of ethics, and that is how one ought to live one’s life. Natural rights is really a political theory about how society should be structured so as to allow people to pursue their natural end and to flourish. So, Natural Rights describes the liberty within which people are free to pursue the good according to the natural law. So, there really are two separate inquiries. There are two separate questions. One is question: is natural law answering in natural law ethics are answering the question, how should I live my life? Natural rights theory is answering the question is how should society be structured so everybody can pursue the good life there? But they’re using a common methodology and the common methodology, as they’re basing their arguments on the nature of human beings and the nature of the world in which human beings live. And so they make empirical claims about, well, what is human nature and also what is the world like, such that it dictates that people ought to live their life a certain way. I think what libertarianism needs is to pay more attention to the natural law ethics part, in addition to their focus on natural rights, because I think you really can appreciate both the reason for natural rights, the reason for liberty, and what the shape of liberty should be without actually taking into account the concept of human flourishing and what that requires.

Roger Ream [00:23:31] And there are those libertarians who, I think, it’s wrong to condemn bad behavior, condemn people who use their liberty in ways that, while not infringing on the rights of others, is considered, engaging in vices that perhaps, and it’s not to say government should step in to prevent that, but it’s fine for private individuals to say that behavior is an acceptable behavior. People should live their life according to the pursuit of virtue and and the good and use their liberty in a in a positive way.

Randy Barnett [00:24:07] Well, it may surprise you to know that by the end of his life, Murray Rothbard took that exact same position. It sort of surprised me to realize that because by that time, by 1995, when he passed, I had sort of lost touch with Murray, and hadn’t realized that his thinking had moved ahead, and he did condemn the libertinism that he associated with many people of libertarian movement that he helped to found. So, even though I don’t feel like that my views today need to correspond to whatever Murray Rothbard might think. It’s not like, what would Murray Rothbard say? It does actually bolsters my opinion, my view that the kinds of updates and reforms and revisions that I think should be made to libertarianism is something that even Rothbard, the father of modern libertarianism, might have been quite sympathetic with as well.

Roger Ream [00:24:56] Well, next time you’re at our building, Randy, if you step onto the stairway to the second floor, there’s a portrait there of one of our founders, David Jones, who preceded me as president of TFAS and he was close to Frank Meyer, and in his portrait, he’s holding a copy of “In Defense of Freedom.” So, we have that tie as well as a friendship with Jean Meyer. But, we have started something called the Fusion Society, which is an evening discussion group where we try to bring libertarians and conservatives together to see if we can find common ground. Don Devine, our senior scholar, has been trying to do a lot to keep the ideas of Frank Meyer first and foremost, as well as our former Novak Fellow, Stephanie Slade, who’s writing about fusionism now.

Randy Barnett [00:25:39] Well, let me be clear, because you already alluded to this, but some people might not have noticed what you said. What fusionism is characterized as being as a fusion between libertarians and conservatives or libertarianism and conservatism, but that’s not, and that may or may not be a good thing. In fact, Meyer probably wanted to have a coalition. You know, this federal society is such a coalition. But the fusionism that he actually advocated without using that term is to make sure that virtue is a part of the defense of liberty. And that’s, by the way, something else Murray Rothbard, I discovered in even in the 1980s, said that you’d have to be an imbecile, which is the word he would use characteristic of Murray. You’d have to be an imbecile to think that liberty was not there for some other purpose. That is simply a means to the ends of how people ought to live, and only an imbecile would claim otherwise. And he actually very favorably reviewed, Murray favorably reviewed Frank Meyer’s book, and he had a couple of quibbles, which for Murray was quite amazing because he usually went after somebody,  tooth and claw. He had a number of small quibbles about it, but basically he thought this was just perfectly sensible what Murray was claiming.

Roger Ream [00:26:53] Returning to your memoir, you really take the reader into the courtroom. I mean, it’s wonderful. I really enjoyed it. I mean, I was familiar with Gonzalez v. Raich, the important case that you argued before the Supreme Court, but not in the detail you provided about the behind the scenes pretrial, tension about who would argue the case, and what kind of arguments to make and the subtleties of your brief and things like that. We don’t have to go into too much. And as a spoiler alert, I’ll mention you, did not win the case, it was a 6-3 decision in terms of the actual vote, but it’s just wonderful to read it and to read the back and forth that took place with the six, I guess, and not with the three. What I left with and I’d like you to talk about is the fact that while the decision wasn’t favorable to the clients, the case was so important and its repercussions for the future. So, could you talk about how that involved the Commerce Clause, among other things, and how that may have played into future jurisprudence?

Randy Barnett [00:28:08] Well, it’s a big story. How we don’t have time for the whole story is kind of why I had to write a book about it, because, as you know, it took many chapters to tell the story. For one thing, I think one of the victories we had was to put medical marijuana on the map. When I first started being involved in marijuana litigation in the late 90s, it was considered a kooky and crazy and cranky type cause or issue. I know because people would respond to me this way. By the time we were done in 2005, when we had our ruling, which, as you say, we lost 6 to 3, it was it was a pretty mainstream issue at that point. It has gone on to be adopted in many states, notwithstanding the Raich case. And, there’s been a funding writer appropriations rider placed on the DOJ not to enforce marijuana laws against medical users in states that authorized it for some years now. So, what this shows is that even an unsuccessful lawsuit, can provide a platform in which public policy can be affected, and even though I was the person who did the lawsuit and had the ideas and theories about the lawsuit, the person who was responsible for advancing the policy agenda was my client, Angel Raich, who relished the publicity, relished be on television, relished debating medical marijuana with anybody who would debate with her. She had a huge impact. So, that was the immediate case. In the course of litigating that case, I learned an awful lot about the Commerce Clause, not the original meaning of the Commerce Clause, which I actually also was researching as a scholar, but the doctrine that the court had developed to supposedly implement the Commerce Clause, and also another very important clause which tends not to be discussed, and that’s the necessary and proper clause, which gives Congress the power to pass all laws which shall be necessary or improper for carrying into execution the Commerce Clause. It turns out most of the court’s so-called Commerce Clause doctrine are really necessary and proper clause doctrines instead. And once I started to get the logic of the doctrine down as a part of working on this case for several years, I actually think I had a better handle on how the Supreme Court, what the Supreme Court’s doctrine really was, both the New Deal doctrine and how the Rehnquist Court had modified it. And it was that that put me in a position when the Affordable Care Act was being debated. And one piece of it involved the individual insurance mandate, which made it, a requirement that every person with subject to some exceptions, but every person do business with a private company, an insurance company for the rest of their lives, because I was well familiar with Commerce Clause doctrine, as a result of my Raich experience, I was able to see the constitutional flaw in the claim that Congress had the power to do this. And that’s why I was able to spearhead that argument. At the end of the day, we actually got five votes for my reading of the Commerce Clause doctrine that the Supreme Court had. Now, ordinarily, the way it’s supposed to work is if you win on the law, you’re supposed to win the case. And if you’ve lost the case, it means the court has rejected your theory of the law. Well, this was a very bizarre case, the Obamacare case, NFIB v. Sebelius, because we got five votes for my argument that it was unconstitutional to require that American citizens do business with a private company and buy a product or service from them. Five votes for that, and then, as you know, Chief Justice Roberts said: “Even though if it were a requirement to buy insurance in force by a penalty, it would be unconstitutional because it is reasonably possible to construe the statute as essentially being an option to buy insurance or to pay a non coercive, modest tax. I can apply to none of the tax power. In fact, I’m determined, I’m bound to do so under the doctrine of judicial restraint. So, that’s how we lost the fifth vote. Not because we were wrong about our argument about the individual insurance mandate, but only that he said it was not the natural reading of the statute, but a reasonably possible reasoning of the statute that allowed him to uphold it. We actually did make the law, from then on in, it is the established doctrine that Congress may not constitutionally adopt purchase mandates, and if they’d been allowed to, for example, the penalty didn’t have to be limited to a small fine. If they could enacted the purchase mandate, they could put you in prison for not doing it, but that’s unconstitutional. We won that. We won on the law. We just lost on the Obamacare part of it.

Roger Ream [00:32:39] Your book really helps a layperson like me, better grasp the the nuances, the subtleties, the precedents, all the prep you have to do to be ready to go before the justices and fit in your clients, your main arguments, it’s dealing with all these precedents and knowing how the different justices are thinking about things. Just even in that the case, I mean, the way you positioned it was just, masterful, I thought. Even though that in the end you didn’t get the decision you would have liked to have gotten. You’re considered one of the, if not the foremost expert, I think on the Ninth amendment to the Constitution and the Ninth Amendment simply says that…

Randy Barnett [00:33:28] I know it by heart. Let me say it.

Roger Ream [00:33:29] Okay.

Randy Barnett [00:33:31] “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Roger Ream [00:33:37] That’s right. Now, explain the practical implications of that and how you used it with the Affordable Care Act? It seems like a neglected amendment, but you, I think, brought it into the fore in many discussions of the Constitution and trying to use it to protect our rights. Could you comment a little about the Ninth Amendment and how it can be used?

Randy Barnett [00:33:57] Well, it’s part of the laws Constitution I talk about in “Restoring the lost Constitution.” What I mean by lost Constitution in that book was there’s a lot of clauses in the Constitution that the court ignores or doesn’t properly interpret, so that it’s missing. And this is one of them, and I’m sorry to say that it’s still missing. We haven’t successfully revived it. I used to give these lectures at a libertarian, summer university program, and at one point, one of the speakers, in order to pay a compliment to me, said: “What we miss here in the European Union, what we really need in the European Union,” because they were worried about the overreach of the European Union, “We need a Ninth Amendment like the Americans have and Professor Barnett has been such a champion of.” It was my very unpleasant duty to have to respond to this very nice friend of mine who was French to say: ” I’m sorry to tell you, but in fact, we don’t really have a Ninth Amendment either.” This was a good idea James Madison thought it up, but it hasn’t worked for us. It’s part of the lost constitution, but it’s still very important evidence of the idea that first come rights and then comes government, which is the American theory of government. I alluded to earlier, represented by the Declaration of Independence. And why does it establish that? Because it says, the enumeration in the Constitution of certain rights. The fact that we put certain rights in there should not be construed to deny or disparage others retained by the people. And what does that mean? Retained is a right they already had. So, the fact that we put some rights into the what we call the Bill of Rights, should not be construed to say: “You didn’t already have those rights and other rights besides those rights.” So, it is a textual acknowledgment of natural rights. The theory we talked about earlier. These are natural rights, the rights we have before you form government. And that’s really important because a lot of people want to deny the reality of natural rights, at least as a legal matter. And that’s kind of why they have to deny the reality of the Ninth Amendment as a legal matter, because it’s right there in black and white, so they need to do some fast footwork to get out from underneath it. Robert Bork, in his confirmation hearings in 1987, famously referred to it as an inkblot, and he said: “It’s as though there’s an ink blot on the Constitution and you can’t see what’s under it and I don’t think judges should be able to make up what’s under the inkblot.” Even though the Wall Street Journal’s strongly supported Bork’s nomination, even they found that something they objected to the next day on their editorial page that the Ninth Amendment was not an implied. However, at the time, as the book relates, I had like three projects in progress about the Ninth Amendment that had not come out yet when Bork testified like that. So, I was able to take that Bork quote and put it at the head of my article that came out in the Cornell Law Review and another article that came out of a symposium issue of the Chicago Law Review, and then a book I was doing for George Mason University Press. I was able to use the Bork quote as sort of my pitch for why the Ninth Amendment is important. So, all my stuff comes out within nine months of Bork testifying, and at that point, the nation’s kind of abuzz on what is this Ninth Amendment stuff, and then I became the nation’s leading authority on the Ninth Amendment overnight, because my stuff was already in progress at the time, Bork said that.

Roger Ream [00:37:19] And that helped get you as an important part of these cases, right? That was the Affordable Care Act?

Randy Barnett [00:37:25] It’s how I got involved in the race case, because the trial judge in that case, Charles Breyer, who was Justice Breyer brother, told the parties: “Well, what about the Ninth Amendment? Can you brief the Ninth Amendment?” So, Rob Rich, who ultimately ended up marrying Angel Rich, that’s the rich name. Rob Rich, the lawyer in the case, went around the country to find an expert on the Ninth Amendment. He came to me at Boston University, and there’s a picture of me at my desk at Boston University, at the place I was when I got the call. I should also mention there’s lots of pictures in the book. There’s black and white pictures, and we have a color picture insert. Encounter books did a great job. But anyway, they came to me to help them with their brief, their trial brief on the Ninth amendment. And I said, sure. And I helped him out, and at some point, the Charles Breyer lost interest in the Ninth Amendment. So, that didn’t go anywhere, but it was really a Commerce Clause challenge. And now I was involved in this Commerce Clause challenge. And that’s when I really started to become an expert on that.

Roger Ream [00:38:24] Randy, you currently teach constitutional law at Georgetown Law School. Could you comment on how constitutional law is taught, particularly in other schools around the country, versus the way you teach it at Georgetown?

Randy Barnett [00:38:39] Yeah, I have a casebook that adopts the approach that I think is very effective. And sadly, unlike my contracts case book, which is commercially very successful, my constitutional law casebook is not that successful because I can’t get enough law professors to try this approach. Most common law cases and a common law classes are taught by Doctor By doctrine. So, in the Commerce Clause, you’d have the substantial effect doctrine. You have the aggregation principle, and you have a lot of doctrines. These are rules of contract of constitutional law that a practicing lawyer needs to be familiar with. But they’re not they’re not actually a good about talking about where these doctrines came from and the logic or structure in which they fit. I find a more effective way to teach the doctrine is to teach the history of constitutional law as it has developed since the founding. In other words, to teach constitutional law as a story, a narrative that begins at our founding and comes forward to today. It’s a narrative that students don’t necessarily know about when they come in the door. It’s a history of the United States that they’re not familiar with. The professors usually know about it, but the casebook doesn’t really help them teach it. Whereas our casebook, starting at the beginning, Josh Blackman in “My Casebook” takes them through the constitutional law as a story. I can tell you that for those of you who are listening, who want access to this narrative and don’t want to buy my $200 casebook, which has got 1400 pages and you know you shouldn’t buy that. Josh Blackman and I have a paperback book called “An Introduction to Constitutional Law: the 100 Supreme Court Cases Everyone Should Know,” in which we take the narrative part of the casebook without the cases, and we string them together chronologically. So, that you can get the narrative that way. And also you get access to a series of videos in which Josh and I explain this narrative in video format. And very soon, the Foundation for the Constitution, a nonprofit that I have founded, is going to make those videos available free of charge on YouTube as soon as they are relabeled appropriately. So, you’ll be able to watch this series of 85 videos that Josh Blackman and I made so that you can get the the narrative without having to come to Georgetown and take me for constitutional law.

Roger Ream [00:40:46] Wonderful. That’ll be a great resource, and hopefully law students will use it. In your book, “A life for Liberty,” you also recount a story of your role in a movie production as an attorney in that.

Randy Barnett [00:41:03] It’s a movie called the “InAlienable,” the movie. Those of you who read the book and find it interesting, you want to see this movie in which I portray a prosecutor. It’s a science fiction movie in which I portray a prosecutor, and the last third of the movie is a courtroom drama about whether an alien that is in custody should be released on a petition of writ of habeas corpus. So, I play one of the government lawyers trying to keep him in custody. If you want to watch this movie, you can watch it on Amazon, but you have to pay a couple of bucks for it, but if you want to see it for free, you can stream it on YouTube. Just search for “InAlienable,” the movie, and the last third of the movie, and you’re going to see quite a lot of me, even though I only have a couple of lines at the very end. I will say this in warning to everybody, it is not the best movie that’s ever been made, but it’s the best movie that’s ever been made that I’m in.

Roger Ream [00:41:54] Well, thanks very much, Randy, for joining me today. I know your time is very valuable, but, I’ve been fascinated with the discussion. I’d love to talk more about many of the stories in your book, but I hope our listeners will buy a copy.

Randy Barnett [00:42:04] Thanks for having me, Roger. Now I got to get in the car and get up to D.C., so I can sign some books.

Roger Ream [00:42:09] Thank you. I look forward to seeing you.

Roger Ream [00:42:12] Thank you for listening to the Liberty + Leadership Podcast. If you have a comment or question, please drop us an email at podcast@TFAS.org and be sure to subscribe to the show on your favorite podcast app and leave a five-star review. Liberty + Leadership is produced at Podville Media. I’m your host, Roger Ream, and until next time, show courage in things large and small.

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