Author Archive | Randy Barnett

My SCOTUSBlog “On Camera” Interview: Parts 1 & 2

I was supremely honored to be asked by SCOTUSBlog to sit for an interview as part of its new SCOTUSblog “On Camera” interview series. Others who have been interviewed to date are Solicitor General Donald Verrilli, Burt Neuborne, Goeffrey Stone, Adam Liptak, Linda Greenhouse, Nina Totenberg, and David Porter.  The questioning was wide-ranging and very well-informed, which made responding quite a challenge.

The interview will appear in six parts on six consecutive days. On the seventh day, they will post the interview in its entirety. Here is Part 1:

Here is Part 2:

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New Expanded Edition of “Restoring the Lost Constitution” is now on sale (for $18.65)

The updated and expanded edition of my book Restoring the Lost Constitution: The Presumption of Liberty, published by Princeton University Press, is now for sale on Amazon.com for $18.65.  The new edition features a 60-page Afterword on “Things I have Learned Since the First Edition,” which is quite a lot.   Here are the topic headings of the new Afterword:

  • Individual Popular Sovereignty and Presumed Consent
  • Did the Constitution Protect Economic Liberty?
  • How Judges Can Protect the Rights Retained by the People Without Identifying Them
  • The Empirical Nature of the New Originalism
  • The Gravitational Force of Originalism
  • A “Constitution in Exile” Movement?
  • Does This Book Offer a “Libertarian” Interpretation of the Constitution?

But wait, there’s more: an Appendix with a revised version of the “Bill of Federalism” amendments I proposed in 2009.  (For example, the Repeal Amendment now empowers a majority of states with a majority of the population to repeal any federal law or regulation, rather than the original proposed 2/3 of states.)

For those readers who are in DC, next week on Friday morning at 11am, I will be signing books at the Federalist Society Annual Lawyers Convention at the Mayflower Hotel.  You can buy your copy there, or bring yours along.

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Republican Candidates Must Abandon Judicial Conservatism for Constitutional Conservatism

Todd makes an interesting suggestion in light of Peter Ferrara’s assessment (in The Anti-Cuccinelli Axis) of the Cuccinelli campaign: The Libertarian Party should emulate the Conservative Part in New York, and offer to endorse the preferable of the Republican or Democratic candidate. Make the major party candidate vie for the support of libertarians (though this would require libertarians to be able to agree on who is better for liberty and who is worse). In addition, I have long advocated that the Libertarian Party run candidates as Republicans or Democrats in congressional districts where the incumbent is unopposed. This way they get on the ballot without having to petition, and will be guaranteed a substantial minority of the votes, as well as access to any debates.

Pete’s column also proposes a way to counteract the phoney charge that Republicans are engaged in a “war on women” that smart lawyers like Cuccinelli and Ted Cruz have a hard time adopting:

Cuccinelli also needed to address the false Democrat War on Women and contraception allegations. He should have fired back that the nonsense McAuliffe and his Democrats were peddling would actually have been unconstitutional under the long established Supreme Court precedent of Griswold v. Connecticut.

But this is not something that conservative Republicans can do if they are judicial conservatives who believe that the Court in Griswold was wrong to protect a right to use contraceptives. So the next question of a smart lawyer candidate who tries this response is, “Oh so you believe there is an unenumerated right of privacy?”  And they have all be trained to answer this answer “no.”  And the smarter and better trained they are as judicial conservatives, the more they are trapped by the accusation that state legislatures could ban contraceptives if they want, which [...]

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ACA Supporters Must Admit That They Are Taxing the Uninsured

Is Obamacare enforced by a tax or a penalty? In the Supreme Court, the Obama Administration claimed that the “penalty” enforcing the individual responsibility requirement was a tax.  Proposals by anxious Democrat Senators, many in vulnerable seats, to delay the enforcement of the Affordable Care Act presents a golden opportunity for the government to finally state on the record how Obamacare works: is it a tax, or a penalty?

Tonight at 9:10pm ET on the John Batchelor Show, I will discuss Josh Blackman’s and my USA Today op-ed in which we urge Congress to either admit that Obamacare imposed a tax on the uninsured, and bear the political consequences of that decision, or reaffirm that it was a Commerce Clause penalty, in which case it is unconstitutional. Here is our conclusion:

Now, as the price for delaying the implementation of the court-created tax penalty, Republicans should demand truth in labeling. The Democrats in Congress must now admit they have imposed a tax on young and healthy Americans to get them to take the bad deal that is Obamacare. And any suspension of this tax must be scored by the Congressional Budget Office so the public knows the size of the tax increase that will be imposed on the American people when the delay ends and the tax kicks in. No longer will congressional supporters of the ACA be able to evade political responsibility.

On the other hand, if the Democrats insist that the penalty is not a tax, then they will be admitting that it is unconstitutional under the Supreme Court’s decision. If Congress contradicts what the administration told the Supreme Court, a new challenge can be brought under the precedent of NFIB v. Sebelius. The president, and those who supported this law, should now be forced to

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Introducing Guest Blogger Josh Blackman

I wish to welcome Josh Blackman as a guest blogger this week Josh is an Assistant Professor of Law at the South Texas College of Law, and author of Unprecedented: The Constitutional Challenge to Obamacare.  It is a marvelous book describing the constitutional challenge to the Affordable Care Act based on extensive interviews with all the major players.  It taught me a lot about the case I didn’t know, and is remarkably even handed.  (Disclosure: I wrote the Preface to the book.)  In his blogging this week, Josh will be offering tidbits about the litigation.

Josh is also the founder and President of the Harlan Institute, the founder of FantasySCOTUS.net, and blogs at JoshBlackman.com. [...]

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From Natural Born “Subjects” to Natural Born “Citizens”

There’s been lots of excellent blogging on the subject of whether Senator Ted Cruz was a “natural born citizen” of the United States and therefore eligible to be President.  I won’t summarize it here, but recommend Mike Ramsey’s two posts on here and here on The Originalism Blog, Garrett Epps’s post here on Atlantic.com, Sandy Levinson’s post here on Balkinization, and Steven Lubet’s here on Salon.com.  However, there is one additional theoretical possibility that I did not see mentioned, though perhaps it appears elsewhere.

Mike Ramsey helpfully identifies the natural law conception of the original meaning of “natural born citizen,” which he describes as follows:

  • The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (as opposed to a citizen/subject by statute). For people in the English tradition that would have meant people who were citizens under common law.  That in turn meant only people born within the sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gave some children born abroad the same rights and duties as natural born subjects, but those children remained nonetheless only statutory subjects (since a statute could not alter the law of nature).  Notably, only this version gives content to the word “natural” in “natural born.”

And distinguishes that from this conception of original meaning:

  • Another way to look at it is that eighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute….  [I]n any event “natural born” had come to mean those children parliament made subjects at birth, whoever they were.  Translated to U.S. constitutional terms, that would mean whomever Congress chooses (from time to time) to make citizens at birth are natural born.

Although he thinks the question [...]

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Can Lawyers Ascertain the Original Meaning of the Constitution?

In the comments on my blog post praising the originalist analysis of the Fourth Amendment by Professor Donald Dripps, some commentators raised the predicable canard that one must be a trained historian to identify the original meaning of the Constitution.  This is actually an interesting question as it goes to the heart of both the practice of law and the practice of history.

Briefly, lawyers are experts in identifying the meaning of language in legal context; historians are not and, to their credit, don’t even try (unless they are submitting amicus briefs to the Supreme Court).  In addition to describing past events, historians are particularly interested in explaining why what happened in the past happened, why people did what they did; as a result, they are very concerned with identifying motives, or other causal influences.  Historians have no particular interest in the meaning of authoritative legal texts, unless they are legal historians who are very often also lawyers. The fact that a legal text is old sometimes makes the identification of meaning more difficult, but far from impossible in most cases.  For one thing, the meaning of language hasn’t changed that much.

Of course, like history, originalism can be practiced badly, by cherry-picking or distorting the evidence of meaning to reach a preordained conclusion, which is why I resist relying upon the findings of any particular originalist work that had not been critiqued or confirmed by others who know that particular subject, however excellent and sensible I may find it to be.  And the original meaning of the Constitution may not always be sufficient to decide particular cases and controversies without the development of constitutional doctrine that is not itself in the Constitution, but is needed to implement what is.  It was mistake of the old originalism to try to [...]

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Digital Searches and the Original Meaning of the Right to be Secure in One’s “Papers”

University of San Diego law professor Donald A. Dripps has an important new article in the Journal of Criminal Law and Criminology: “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)).  (H/T Mike Ramsey at The Originalism Blog).  In it, he presents a powerful case that the seizure of private papers by government authorities for later perusal was considered a distinct and equal injustice as that of issuing general (nonparticularized) warrants.  As such, one’s papers merited much greater protections from seizures that one’s “effects” or personal property.  Indeed the “seizure” of one’s papers for later perusal to find incriminating information therein had the hallmarks of the evils of general warrants.  He then connects this historical analysis with contemporary debates over the seizure of digital information.  Here is a bit from the Introduction:

This Article argues that the history of seizing “papers” explains why the Amendment uses the term and offers the opportunity to ground special Fourth Amendment rules for digital evidence….

The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War. The one Founding-era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil

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My Cato Brief in Support of The Electronic Privacy Information Center’s Challenge to NSA Data Seizures

Yesterday, Jim Harper of the Cato Institute and I filed an amicus brief in support of  The Electronic Privacy Information Center (EPIC)’s challenge to the constitutionality of the NSA’s blanket seizures of private phone records.  Here is the summary from the Cato website:

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel. Cato senior fellow and Georgetown University law professor Randy Barnett joins Jim Harper on this brief urging the Court to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation. If the Court finds that the statute allows this sweeping a warrant, then it must consider the flat Fourth Amendment bar against general warrants, as well as the unreasonableness of collecting all information about Americans’ phone calls for speculative future investigations.

The brief urges the Court to reconsider Smith v. Maryland and the “third-party doctrine,” which purports to

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Understanding Gershwin

Israeli pianist Astrith Baltsan explains the music of George Gershwin before a performance of Rhapsody in Blue with the
Israel Philharmonic in a 2001 live broadcast on Israel TV.

Which brought to mind one of the all-time-great opening sequences of a major motion picture.

The only one I can think of that comes close to this is George C. Scott’s opening speech in Patton.  The opening sequence in Silverado is also terrific.  Any other great opening sequences? [...]

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New Republic: “Libertarianism has won over the Supreme Court conservatives”

Simon Lazarus of the Constitution Accountability Center has a provocative essay that the New Republic has entitled “Alito Shrugged: Libertarianism has won over the Supreme Court conservatives.”  (Whoever writes their urls gave it the more tendentious title, “supreme-court-libertarianism-ron-pauls-bench”)  Here’s a taste:

On high profile issues, the conservative bloc’s five members—Chief Justice Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito–recycle standard conservative narratives, factoids, and slogans. But the conservative movement is not a monolith. It comprises discrete factions: social and religious conservatives; business conservatives; big-government conservatives; and libertarian conservatives. Furthermore, the balance of power among these jostling ally-competitors is not static. To lump them all together overstates, in some areas, how “conservative” the Court is or is trending, while, on other fronts, seriously understating the Court’s rightward velocity.  

Specifically, the “inching right” sound-bite overlooks the most obvious, and potentially seismic, current influence on the Supreme Court’s conservative bloc. This is the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters. For decades, and as recently as Barack Obama’s first year in the White House, libertarians were marginalized within the conservative pantheon. Now they rival, and in important areas threaten to displace social conservatives and big-government conservatives. Unsurprisingly, this upheaval has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court. In the 2012-13 term, the leading libertarian think tank, CATO Institute, filed amicus curiae briefs in 19 cases—over 24 percent of the Court’s total docket, and wound up on the winning side in 15 of them.

[snip]

[This] rising libertarian influence is not all good news for progressives. On the contrary, the most consequential impact could be the parallel surge of support, among conservatives, for libertarian ambitions to dismantle or cripple landmarks like the

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Richard Epstein Replies to my WSJ Op-Ed on the NSA, CFPB & FISC

I regret that I overlooked my friend Richard Epstein’s thoughtful reply on Ricochet to my Wall Street Journal op-ed on the blanket seizures of data by the National Security Agency and Consumer Financial Protection Bureau, the constitutionality of which has apparently been authorized in secret opinions issued by the Foreign Intelligence and Surveillance Court: National Surveillance, the NSA, and Dodd-Frank.  Here is his disagreement with my take:

Barnett and I disagree . . . on the matter of the NSA, on which I give the national security interest much more weight than he does. In the case of the NSA, the internal controls are far stronger than those with the CFPB. Also, unlike the CFPB, the NSA does vital national work that we cannot possibly do for ourselves. I shall not repeat here the arguments that I made first with Roger Pilon in the Chicago Tribune, nor those that I made with Mario Loyola in the Weekly Standard, nor indeed those that I advanced on Ricochet (here and here), except to say that it makes all the difference in the world whether the information is kept in a credible lockbox once collected, so that it may only be used by government officials on a showing of probable cause.

[snip]

In principle, I think that the comparison to general warrants from the colonial era is way off base. As Barnett notes, the early cases allowed damage actions against unreasonable searches and seizures, for in cases like Entick v. Carrington in 1765, government agents did indeed trash private homes. But the reason why damages fell out of style was because most searches did not cause that kind of damage. Assuming that surveilled data is kept under lock and key, the greater danger would be for that

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Preparing for First Year Contracts

Volokh Conspiracy readers who are heading off to law school in the Fall might benefit from a short book on contract law I wrote recently as part of a series called, the Oxford Introductions to U.S. Law.  It is written to be accessible to students and to discuss most of the “classic” cases one is likely to encounter in the first year Contracts course.  Although it was written to be useful for any contracts class, it will be particularly valuable if your professor uses my casebook, Contracts: Cases and Doctrine. Of course, you won’t know that until you enroll. Admittedly, this book does represent my own view of contract law.  But this is simply the way I have come to understand the subject after years of teaching and writing about it.  It is my best take on contract law as it is, rather than my own prescription for how it should be reformed.  (Where I shade over to the normative, I indicate this.)  Although some contracts professors’ understanding may differ from mine, in which case you should always know your own professor’s approach.  But most law professors who teach contracts do not have a scholarly interest in the subject — their expertise lies elsewhere — and they don’t have any coherent view of the subject.  In these classes, some overview that makes sense of the doctrine can be very useful to keep one’s head screwed on straight. I really believe that coming into class with this under one’s belt would give one a leg up. So if you, or someone you love, is going to law school in the Fall, why not order a copy of the book to read over the summer?  My guess is that the other books in this series, each written by a well-respected scholar [...]

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No Good Deed Goes Unpunished: A Simple Misunderstanding

In response to my post yesterday, Corey Robin has a blog post on Crooked Timber based on a good faith, but uncharitable misreading of this prefatory sentence on my piece.

I wish to add a few additional considerations that I have become aware of over the past several years as I have researched and written about “abolitionist constitutionalism” and the career of Salmon P. Chase.

Here is his argument:

Major Premise: Randy Barnett is a smart libertarian guy!

I should preface this by saying that I think Barnett is one of the most interesting and thoughtful libertarians around. I’d happily read him on just about anything. He’s a forceful writer, who eschews jargon and actually seems to care about his readers.

Minor premise:  Randy Barnett admits that he did not know the conventional interpretation of the Civil Way and slavery until recently.

What’s striking about this set of observations is that with some minor exceptions it has been pretty much the historiographical consensus for decades. Indeed, I learned much of it in high school and in my sophomore year at college.  Yet Barnett, by his own admission, has only discovered it in recent years.

Leading to this conclusion:  That someone like Barnett thought this shows that libertarians are generally oblivious to what everyone else knows about the Civil War and slavery.

To the contrary: it’s because I have respect for Barnett that I am surprised. We’re not talking here about libertarianism’s Praetorian Guard. Barnett is a major scholar, who’s actually been thinking and writing about abolitionism and its constitutional vision for some time.  That a libertarian of such acuity and learning, of such range and appetite, would have come to these truths only recently and after intensive personal research tells you something about the sauce in

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Some Comments on Secession by Seth Barrett Tillman

Seth Barrett Tillman writes in to add these points to our discussion of secession and the Confederacy.

First, we do not have good evidence that even a majority of the adult white males in each rebel state supported secession at the time purported state conventions issued their ordinances of secession. The secession conventions were hardly models of transparency or one-(white)-man-one-(white)-vote equality in terms of fair representation. See, e.g., Akhil Reed Amar, America’s Constitution: A Biography 354 (2005) (explaining—in model clarity—that “state-secession votes occurred in assemblies skewed by state-law variants of the federal three-fifths clause—laws that gave plantation belts undue weight in the ultimate outcome”). I am in Ireland now, and so, I do not have easy access to much American material, but (as I remember) there is good authority for the view that a majority of the adult white males in Georgia did not support secession in 1861.

Second, if secession were/is a valid political principle, even absent concrete and substantial wrongdoing by the government from which one is seceding, then it does not stop with states seceding from the federal government. Many Southern states had counties and large regions where the white population was overwhelmingly loyal to the Union. E.g., Northern Alabama and Mississippi, western Virginia (prior to recognition of West Virginia statehood as the legitimate successor to rebel Virginia). Likewise, every rebel state (South Carolina excepted) produced organized loyalist regiments, and even South Carolina sent many white men who enlisted in Union regiments. Those loyalist counties and regions also produced active pro-Union militias in their home states. At no time did any rebel assembly or governor allow these counties and regions to remain in the Union or secede from the rebel state. The rebel position was never secession pure and simple, but secession in the context

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