Author Archive | Randy Barnett

Jim Harper and My Essay on the Unconstitutionality of the NSA Bulk Data Seizures

The Federalist Society’s journal Engage has an interesting Symposium on the National Security Agency’s Bulk Data Seizures and FISA Surveillance Programs.  The symposium includes my very brief essay with Cato’s Jim Harper, Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional.  In it we contend that:

Rather than airy and untethered speculations about “reasonable expectations,” the courts should return to the traditional—and more readily administrable—property and contract rights focus of Fourth Amendment protection reflected in the majority opinion in Katz. Courts should examine how parallels to the walls of the home and the phone booth in Katz conceal digital information are employed by the people to preserve their privacy.

An inquiry into the physical and legal barriers people have placed around their information — for example, by using passwords to restrict access to their email, or entering into terms of service agreements that include privacy protections — can generally answer whether they have held it close. This establishes the threshold of personal security that the Fourth Amendment requires a warrant to cross. No distinction should be made between sealing a letter before handing it to the postman, taking a phone call in a secluded phone booth, password-protecting one’s email, or selecting a communications company with a suitable privacy policy.

In short, the physical and legal barriers people place around their information define both their actual and “reasonable” expectations of privacy and should provide the doctrinal touchstone of the search warrant requirement. When one has arranged one’s affairs using physics and the law of property and contract to conceal information from preying eyes, government agents may not use surreptitious means and outré technologies like thermal imaging to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth Amendment. In Jones, the Court took

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Originalist Scholars Amicus Brief in NLRB v. Noel Canning

Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.  Much of the evidence cited is taken from Michael Rappaport’s path-breaking 2005 article, “The Original Meaning of the Recess Appointments Clause,” 52 UCLA L. Rev. 1487 (2005).  You will note that Mike published his originalist critique of current practice during the mid-point of the Bush administration.

Of course, the merits of our legal analysis can only be fully assessed after considering counter-arguments and contrary evidence presented by those who may disagree.  In this brief, we consider the originalist arguments presented by the government. (In their brief, the Constitutional Law Scholars also powerfully respond to other non-originalist arguments based on subsequent practice. Will is excerpting the brief here.) [To read the summary of the argument click Continue Reading below.]

Our brief not only provides support for the decision reached by the Court of Appeals. It exemplifies how an original public meaning analysis is a legal analysis of the meaning of language at the time of its enactment that is well within the competence of lawyers and judges to present and assess.  It also illustrates how originalist scholarship is necessary for high quality originalist judicial decision making. It is unrealistic to expect judges to do the work that Mike and others have done on the original meaning of the Recess Appointments Clause.  But judges are quite competent to assess the comparative strength of this evidence when weighed against contrary arguments, the way they weigh other evidence that is presented to them in our adversary legal system.  Contrary to the common complaint that legal scholars produce writings of value only to themselves, originalist scholars of [...]

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How Obamacare Should Honestly Have Been Defended

Over on The Daily Caller, Josh Blackman offers a tongue-in-cheek parody Thanksgiving Address that could have been given by President Obama in November 2009 to honestly defend the yet-to-be-released Senate originated Affordable Care Act.  But his parody is fair and nuanced enough to provide a template for what an honest description and defense of Obamacare would have looked like.  Indeed, it is based on what the administration and its defenders have argued both in court and in the political sphere since the law was passed, and it would not take much tweaking to convert it from a parody into a good faith presentation and honest defense of the ACA.

So the question is, could Obamacare been enacted had it been accurately described and defended this way before its passage?  And, if the answer to this is “No,” what does this tell us about the “democratic legitimacy” of the ACA?  Here is a taste:

Our healthcare system is broken. There are over 40 million people without insurance. At the same time, it is not fair for some people to have very generous plans that are subsidized by employers. Further, it is also not fair for young and healthy people to have cheap, bare-bones plans that do not contribute to the insurance pools. What we need is a way to equalize things.

So, under the Affordable Care Act, generous health insurance benefits, so-called “Cadillac plans,” will be heavily taxed to create incentives for your employer to drop them, so you will be forced to buy normalized insurance on the health care markets. Bare-bones plans that only cover catastrophic needs will not be compliant with the ACA. If you have one of these, particularly if you are on the individual market, it will be cancelled. Plus lots of other modest plans will

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The Nuclear Option and Political Responsibility for Obamacare

Seth Barrett Tillman writes:

The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senate Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.
But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.
If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

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Restoring the Lost Constitution Just Got Much Easier

This is an historic moment on our constitutional history. With the change of Senate rules today by a simple majority to [allow a simple majority to] close debate on judicial nominations, a Rubicon has been crossed. Restoring the Lost Constitution has now been made far more feasible, and will make the 2014 & 2016 of enormous importance to our constitutional future.

UPDATE:  Larry Solum on The Nuclear Option and Noel Canning [...]

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My WSJ Book Review of “Terms of Engagement”

In today’s Wall Street Journal, I review Clark Neily’s most excellent book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.  Here is a taste:

In “Terms of Engagement,” Clark Neily draws upon his extensive experience as a lawyer for the libertarian Institute for Justice to expose this pervasive legal maneuvering and identify the human costs of so-called judicial restraint. He describes laws requiring Americans to take hundreds of hours of training to become state-licensed cosmetologists before they can braid hair, “even when they provide no other services and use no scissors, chemicals, or potentially hazardous instruments.” Louisiana requires a florist license before a person can arrange flowers for pay; Louisiana and Tennessee require anyone who sells a casket to the public to be licensed as a funeral-home director.

Countless such restrictions on individual liberty are supposedly needed to protect the health and safety of the public. But as Mr. Neily explains, under the current doctrine favoring restraint, government lawyers needn’t provide any actual proof of a genuine health or safety problem, or show that the law’s restrictions address whatever problems may truly exist. Indeed, existing doctrine requires judges to make up reasons for such restrictions, no matter how disconnected these rationales may be from why the regulations were adopted.

Thus does constitutional law enshrine what economists call “rent seeking” by the politically powerful. The price is the economic liberty that once fueled the American dream.

The whole thing is here (though probably behind a pay wall).

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Damn, It Feels Good To Be A Gangsta

I cannot say I was particularly impressed with Ian Millhiser’s article, How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America, except insofar as it was actually pretty impressive how he was able to dredge up, dust off, and then somehow include in a single essay pretty much every Leftie trope about conservative and libertarian constitutionalism, no matter how internally inconsistent or inaccurate.  In the end, though, the piece turned out to be just another “restraint for thee, but not for me” missive like those I have been hearing ever since the Rehnquist Court adopted its “this far and no farther” (without justification and a limiting principle) approach to the so-called “New Deal Settlement” and was accused of “Conservative Judicial Activism.”

But for me the piece totally redeems itself by this passage:

If the Federalist Society played walk up music when its speakers took the stage, Barnett’s theme song would be “Damn, It Feels Good To Be A Gangsta.”

For this, I will forever be grateful to Mr. Millhiser and would like one day to shake his hand.

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My Fed Soc Panel on Textualist Interpretation

Here is the panel on Textualism and Constitutional Interpretation from the Federalist Society Lawyer’s Convention last Friday.  It was a dynamite line-up with the super smart (and fellow Guggenheim Fellow) Richard Primus (Michigan), conservative originalist John McGinnis (Northwestern), and originalism critic Mitch Berman (Texas).  I go first to defend originalist constitutional interpretation and distinguish it from constitutional construction.

I thought that the discussion was conducted on a very high level, though I never said, nor meant to imply, that historians were “dumb.”  My point, made quickly and under the pressure of time, is that (a) originalism does not require lawyers to be historians, (b) lawyers can analyze the meaning of legal texts, even from the past, and (c) when historians without legal training attempt to analyze the meaning of legal texts (or evaluate the quality of legal arguments made in the past) they can reach dumb results.  To this I would add that historians are typically interested in things other than legal meaning, or the merits of legal arguments.  When a small fraction of historians get themselves into debates about the Constitution, most are themselves nonoriginalists who still look for the “original intent” of the drafters or ratifiers despite the fact the nonoriginalist law professors have rightly been critical of that endeavor for some 30 years now, and most originalist scholars have modified their approach in response.  Some historians who attempt “originalism” hold to a particular view of “meaning” that reduces the meaning of words to the motives, goals or objectives of those who uttered them.  By identifying these motives or goals, they think they have identified the true “meaning” of the words, but this is a highly disputed and problematic theory of linguistic meaning.  Moreover, historians can be as “partisan” in their advocacy of original intent when they enter [...]

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Want to be a Law Professor?

The Georgetown Center for the Constitution is now receiving applications for 2-year fellowships for the 2014-15 and 2015-16 school years. Fellows will work on their scholarship as they prepare to enter the law teaching market, and are Visiting Lecturers to teach their own seminar on the subject of their research and co-teach with me.  The application form is available here.  The postmark deadline for the 2014 – 2016 fellowship will be Friday, February 15, 2015.

Here is a more detailed description of the program from the website:

The Georgetown Center for the Constitution Fellowships is designed for a highly-qualified law graduate who intends to pursue an academic career.  We seek applicants who have shown an aptitude for independent scholarly research, as demonstrated by their scholarly work in law school, research related to other graduate degree programs, and/or their professional activities after law school.

During their residence at Georgetown, Fellows are expected to produce significant scholarship for publication and teach a seminar on the subject of their research as a Visiting Lecturer. The Fellow also will contribute to the intellectual life of the Center by participating and guest lecturing in various constitutional law courses at Georgetown, and will have the opportunity to take part in the Georgetown Law Fellows’ Collaborative in preparation for the academic job market. The position is designed for individuals intending to go onto the legal academic job market within two years.

The Fellowship

The Fellow will be in residence at Georgetown Law Center for a two-year period. The Fellowship permit the Fellows to complete a year of research, writing and teaching a seminar, before applying for teaching positions during their second year. During the Fellow’s tenure at Georgetown, he or she will be expected to produce at least one major academic piece of scholarship. The Fellow

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Getting Ready to Study for Your Contracts Exam?

You might want to try my book: The Oxford Introductions to U.S. Law: Contracts.  Here is the publisher’s description:

Written by a leading expert in the field, The Oxford Introductions to U.S. Law: Contracts provides students with ready access to the basic doctrines of contract law, the story behind their evolution, and the rationales for their continued existence. An engaging book that allows students to grasp the “big picture” of contract law, it is organized around the principle that lies at the heart of contracts: consent. Beginning with the premise of “consent,” the book provides a cohesive framework in which to understand the various aspects of contract law.

It discusses most of the “classic” contracts cases and tries to fit the disparate contracts doctrine into a coherent framework, which makes them a bit easier to understand.


Here’s are a couple reviews on Amazon:

After repeatedly trying and failing to find a good hornbook to supplement Barnett’s contract casebook, I discovered “The Oxford Introductions to U.S. Law: Contracts.” It helped me get on my professor’s wavelength. This was no small feat given that I discovered the book only a month before the final and had already learned some useless information from traditional hornbooks. Thankfully, this book not only set me straight, it was a fast and enjoyable read. It prepared me well for my final exam; I got an A. Part of me credits this success to my scholarship, but a bigger part of me knows that I did well mostly because I actually grew to enjoy the subject thanks to this little book.

Another:

This is the absolute best source for a 1L contracts class. Its new and not by one of the big supplement brands, so its almost entirely unknown. Barnett helped me see the big picture in

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