The Bookmonger
Episode 514: 'A Life for Liberty' by Randy Barnett
(upbeat music) - Hello and welcome to the Bookmonger. I'm John J. Miller of National Review. Thanks for listening. This shows a production of National Review and recording from the studio WRFH, the campus radio station of Hillsdale College. Our guest is Randy Barnett, author of A Life for Liberty, the making of an American originalist. Randy, welcome to the Bookmonger. - Thanks for having me, John. You're a professor of constitutional law at Georgetown. Why'd you wanna write a memoir and what do you hope to accomplish with it? - Well, I've been involved in the libertarian movement and in the conservative legal movement for many decades now. And in the book, I tell the story of how I became a libertarian. I was actually a conservative first, then I became a libertarian. I debated on behalf of Barry Goldwater when I was 12 years old, in front of my entire junior high school and grade school student body. In the book tells about why I wanted to be a lawyer and how I became one, and then how I became a law professor. And eventually how I became a constitutional law professor arguing in favor of enforcing the original meaning of the constitution. The great guide for people who might wanna have a career of ideas and making a difference in this world. - The subtitle of A Life for Liberty is the making of an American originalist. What is an originalist? What's your definition? - Originalism is relatively easy to define. It's that the meaning of the constitution should remain the same until it's properly changed by amendment. The meaning should remain the same until it's properly changed by amendment. An originalist is somebody who thinks that's the way you should interpret a written constitution. - That's unsensible. Why is it so controversial? - It's controversial because for a very long time people decided that it would be better to change the constitution by means of Supreme Court decisions than by constitutional amendments. And as a result, many parts of the constitution are missing. It is what I called in my first book on the constitution, the law's constitution. Laws is like the ninth amendment, the tenth amendment, the second amendment until recently, the commerce clause and the limitations they're on. There's all kinds of provisions in our constitution that the courts have decided not to enforce and to our detriment. We do have remaining elements of our constitution still in effect. And that's the reason why we're as free as we are. But the world would be a better place and this country would be a better place if the whole constitution were enforced by the Supreme Court. - It seems to me that originalism has made a kind of comeback in the last generation in the courts. Is that true? - Absolutely. And my book is the story of how that comeback came about. It starts with the very beginning of originalism and why I rejected it on the basis of criticisms that were made of it, how I came across what I thought was a better version of originalism ironically in the writings of an obscure 19th century anti-slavery lawyer named Lysander Spooner. And then how that view of original public meaning originalism as distinguished from original framers and ten originalism came to dominate to the point where during the Trump administration, judicial nominees were screened to make sure that they were original public meaning originalism. That this is the story of how that came about. - Who is Lysander Spooner? You discuss him in the memoir. There's a great picture of you by his gravestone. Who was he and what's your connection to him? - He was a wonderful cantankerous 19th century scholar as it turns out. I didn't realize when I came across him that he actually, there's a six volume collected works of Lysander Spooner. He's best known for his anarchist essay, No Trees in the Constitution of No Authority, which came out in the 1860s. But he actually had a huge influence in the 1840s in a book called The Unconstitutionality of Slavery in which he argued that slavery was unconstitutional under the original constitution without a 13th amendment. Now I don't actually think Spooner was right about that, but in the course of making that argument, he identified original public meaning originalism as the way that the constitution should be interpreted. I got that idea from him. Unbeknownst to me, Justice Antonin Scalia before he was a justice had a very similar idea and he was touting it as a circuit court judge. But I promoted this view of originalism before I knew that, but it was really nice when I discovered that I had Scalia on my side. - You also describe yourself in the book also in this interview as growing up conservative as a William F. Buckley style national review conservative. Then you discovered libertarianism and that's the name of a chapter in the book discovering libertarianism. What is libertarianism and how did you discover it? - They discovered it's sort of accidentally a classmate of mine at Northwestern discovered it. She was active in young Americans for freedom. Buckley's student group told me about it. I thought the name sounded weird and didn't want to hear anymore about it, frankly. But then she invited a libertarian and professor to speak at the residential college we both lived at. And I thought, hey, this is a rational conservatism is what I've been looking for. And in fact, even after all these years, I do think that properly formulated libertarianism is irrational conservatism. Conservatives sort of lack a theory of what they're for and what they're against. Libertarianism, I think, has done properly is not only a good philosophy for people who call themselves libertarians, but also for people who call themselves conservatives. At least those conservatives who base their conservatism on liberty. - Is there a connection between libertarianism and originalism? - Very indirect. The indirect connection would be that our constitution, the original meaning of our constitution, if followed would make it one of the most, if not the most libertarian forms of government the world has ever known. And so it's the substance of the constitution that would relate to libertarianism. And one of the reasons why the constitution is legitimate, if it were followed is because it protects the preexisting rights retained by the people who which the Declaration of Independence refers. Those are the inalienable rights to life, to liberty and to the pursuit of happiness. Why did you choose law is your profession and why become a law professor? - I chose law because of a television show that came on CBS when I was 10 years old and it was called The Defenders. It starred E.G. Marshall and Robert Reed as a father and son criminal defense team in New York. And unlike Perry Mason, which was about solving murders, The Defenders was about representing clients and practicing law. And it was fascinating. And it tapped into my inherent interest in justice. And that really is the unifying threat of my entire career. And I went from trying to pursue justice at a retail level first as a criminal prosecutor in Chicago prosecuting murders, rapes and armed robberies which I talk about in the book to trying to effectuate justice on a wholesale level by working up a theory of justice in particular my book, The Structure of Liberty, Justice and the Rule of Law. And arguing for principles of justice and why they should be adhered to, what they are and why they should be adhered to. So really justice is the unifying theme of everything I've done in my whole life. - You've been involved in several big Supreme Court cases about congressional power and Obamacare. For example, are they connected to originalism? - Actually the two cases, the two big name cases I've been involved with, both the medical marijuana case out of the Ninth Circuit that went to the Supreme Court that I argued in the Supreme Court. The book tells about what it's like to argue in the Supreme Court and the challenge to Obamacare. And I was the person that developed the theory about why the individual mandate was unconstitutional. Neither of these arguments were based on the original meaning of the Constitution. They were both based on the existing Supreme Court doctrine, the decisions of the Supreme Court and why under those rulings I believed and I still believe Congress lacked the power to regulate interest state medical marijuana that was not being sold or marketed in any way. And also Congress lacked the power to make people buy insurance from a private company for the rest of their lives. So both cases were an example of using existing doctrine to argue for a position that was consistent with the original meaning of the text. But in neither case did I rest my case on the original meaning of the text. - The afterward to a life for liberty is called unfinished business and you talk about what's next in a few areas. One of them is originalism. What do you think is next for originalism? - Originalism needs to come to grips with starry decisis for one thing. That is the doctrine of precedent. Originalists judges and especially justices need to get past their commitment to erroneous Supreme Court precedents that have greatly expanded the powers of government and diminished our retained rights. Justice Thomas is actually very good on this but we don't have five originalist votes now for undoing a lot of the damage that's been done by previous Supreme Court opinions. What's next for libertarianism? - Libertarianism, I believe, needs a number of upgrades and improvements and refinements. Maybe first and foremost, I believe it needs an understanding not only of natural rights but of natural law. That liberty, the liberty that libertarians favor and I believe conservative favor as well is a means to an end and the end is one of human flourishing. And so to understand exactly what the nature of liberty is and why it's important, one needs to understand human nature, natural law, and actually the natural ends of human beings. That's something that libertarianism needs. It also needs to take more seriously the problems involved with private power, not just government power. During COVID, we learned that many of the restrictions on our liberty, for example, the requirement that you take a vaccine before you could keep your job. We're being imposed on us by private companies and not by the government, even though the interplay between the two was hard to separate. That's something libertarians need to think more closely about. They need to be focused on liberty first and property second because liberty is really what is at the core of libertarianism. - The author is Randy Barnett, the book is A Life for Liberty, the Making of an American Originalist. Randy, thanks for joining us on the bookmonger. - Thanks for having me, John. - Thanks to all of you for listening. If you enjoyed the show, please take a minute to leave a review. Help new listeners discover us, and that helps us keep this show going. We'll be back next week in an episode of The Bookmonger.