Libertarian legal superstar Randy Barnett
challenges conservative judicial orthodoxy.
Damon Root from the June 2016 issue, Reason.com
In 2012 Chief Justice John Roberts led the U.S. Supreme Court in upholding the constitutionality of the Patient Protection and Affordable Care Act. "It is not our job," Roberts wrote in National Federation of Independent Business v. Sebelius, "to protect the people from the consequences of their political choices." With those deferential words, Obamacare was saved from legal destruction.
Most conservatives today remain outraged by Roberts' opinion. But according to Georgetown law professor Randy Barnett, one of the architects of the legal challenge to Obamacare, those conservatives don't really understand what it is they're railing against. In that case, Barnett writes in his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, "the chickens of the conservative commitment to judicial restraint [came] home to roost." For far too long, Barnett maintains, too many legal conservatives, from John Roberts on down, have championed judicial deference to majority rule at the expense of the judiciary's duty to enforce the Constitution and act as a check against the other branches of government. Conservative legal orthodoxy itself, in other words, played a central role in allowing Obamacare to survive.
Barnett is now on a mission to upend that orthodoxy. "The Obamacare decision had a very galvanizing and chastening impact on conservatives generally, and I believe caused them to begin to rethink this reflexive acceptance of a progressive concept of judicial restraint," Barnett says. "This book is intended to offer my proposed approach to the appropriate role of judges going forward."
Barnett, a professor of legal theory at Georgetown University Law Center and the author of nine previous books, including Restoring the Lost Constitution: The Presumption of Liberty, spoke with Senior Editor Damon Root in February about the republican Constitution, the specter of judicial activism, the legacy of Justice Antonin Scalia, and why he worries that "winter is coming" to the U.S. Supreme Court.
reason: The title of your new book is Our Republican Constitution. You say that you are using the term republican in a non-partisan manner. How are you using the term?
Randy Barnett: The thesis of the book is that there are two different approaches to the Constitution, the republican one and the democratic one. They're each based on different conceptions of "We the People." If you take "We the People" as a group, and you're concerned with "We the People" governing, then the only way that the will of the people can govern is by majority rule. So then anything that gets in the way of majority rule is suspect and potentially illegitimate. Which includes judges getting in the way. Judges are not accountable, they're not elected, and if they get in the way of the will of the people there is something wrong there. That's the democratic Constitution.
If you take "We the People" as individuals, as I believe the Declaration of Independence does, then the purpose of government, according to the Declaration, is to secure the rights of "We the People," each and every one of us. Then government is the servant of the people, and the function of judges—who are also servants of the people—is to fairly adjudicate disputes between members of the sovereign people and their servants. People as a group yields completely different judges than people as individuals. "We the People" as individuals yields a republican Constitution and in the book I maintain that the Constitution we have is a republican Constitution.
reason: You stress the idea that the rights of the American people predate the existence of the American government. Why?
Barnett: The Declaration of Independence says that all persons are created equal and they are endowed by their creator with certain inalienable rights. So the Declaration says, first comes rights and then comes government to secure these rights. That is the republican vision that led to the U.S. Constitution.
reason: What role do the Reconstruction Amendments—the 13th, 14th, and 15th Amendments—play in your conception of the Constitution?
Barnett: The initial Constitution, though it was republican and though it was not democratic, was highly imperfect. It left democratic rule at the state level free enough to impose slavery on some members of their populations. Eventually, as everyone knows, this led to intense conflict and a new anti-slavery Republican Party, and eventually a Civil War, finally culminating in that Republican Party passing amendments to the Constitution that did not make the Constitution perfect, but did make it much more republican. It now protected individuals from majorities in their states where previously those protections were very, very few in the Constitution.
reason: You're closely associated with the legal philosophy known as originalism, which says that the Constitution should be interpreted according to its original meaning. What's wrong with the idea of viewing the Constitution as a living document, or at least as a document that's flexible enough to adapt and change with the times?
Barnett: The written Constitution is the law that governs those who govern us. Those who are being governed by that law should not be able themselves to change it without going through the amendment process any more than we can change the laws that are governing us just because we don't like them. A written Constitution is simply a means to protect the rights and powers retained by the sovereign people. You have to jump through some amendment hoops before the government can expand its powers. They cannot do it on their own. That's all originalism says.
reason: You envision the courts playing a robust role in enforcing the terms of the Constitution. What do you say to the charge that your approach will end up giving judges the license to engage in judicial activism?
Barnett: Judicial activism is a pejorative used by people to describe judges striking down laws that they shouldn't strike down. Almost no one believes that judges should never strike down any law. So striking down a law that ought to be struck down is not judicial activism. I'm only calling for judges to invalidate laws that are unconstitutional, and therefore I do not favor judicial activism. But I do favor what's called "judicial engagement," which means that judges should not be passive and should not be upholding laws that are unconstitutional. And by unconstitutional here I mean beyond the just powers of government, as the Declaration says.
reason: When we talk about constitutional law, it's common to talk in terms of rights. Did the government violate my right to free speech, did the government violate my right to keep and bear arms, etc. But you spend much more time in this book on the issue of government powers. Why is that?
Barnett: One of the purposes of this book is to refocus our attention on the scope of government powers and move away from this discussion of rights. As you know, I've done a lot of work on the Ninth Amendment ["The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"], but I never thought it was the first, best option for judges to identify unenumerated rights and then enforce them. That was only something that should be done in our current constitutional regime in which certain rights are separated out for special protection; I believe others should be added as well. But I believe the first, best option is to hold government to its just powers. We shouldn't be focusing most of our attention—and neither should judges—on what our rights are. We should be focusing our attention on what are the just powers of government and asking whether government is acting within those just powers, whenever it is restricting the liberty of the people as generally understood.
Now, the liberty of the people does not include the liberty to rape, murder, or rob people; that's not liberty. That's what a classical liberal would call license, or unjust conduct. But if you're not doing any of those things, if you're going about your business and now government wants to restrict your liberties, then it needs to do so only within the limits of its just powers. The attention of this book is on what are the just powers of government, and how does the U.S. Constitution limit governmental powers, and why are those limits good for liberty without judges specifically protecting rights per se?
reason: On the state level, doesn't that still raise the question of what rights are protected by the 14th Amendment, either via its Privileges or Immunities Clause or via its Due Process Clause? How should federal courts go about holding states to their just powers?
Barnett: I agree it's somewhat more difficult at the state level. The Privileges or Immunities Clause is really no more difficult to understand than the Ninth Amendment. It's a reference to the retained liberties of the people as well as certain additional special protections that are enumerated in the text of the Constitution that formerly had been only applied to the federal government. Identifying the privileges or immunities is not all that difficult. What makes states somewhat more difficult is figuring out what are the just powers of states. The Congress has specific, enumerated powers, so you have a list you can consult. As long as they are exercising one of those powers it's constitutional. States have general powers. So then you need a theory of what those powers are. Now, these are unenumerated powers. Unenumerated things are more uncertain than enumerated things. But general powers were never thought to be unlimited powers. Unlimited power is tyranny. Arbitrary and irrational rule is tyranny. And no small-r republican thought states had that kind of power.
I talk a lot in the book about irrationality and arbitrariness and how there was always objection to irrational and arbitrary laws. The debate then is over what is the exact scope of government power, what are the appropriate state purposes. And there is a fundamental agreement, a widespread consensus on some of that, which we can summarize as health and safety laws. Any laws that are meant to protect the health and safety of the public would be within the proper province of state governments.
reason: What do you say to those who maintain that the states actually have very broad powers to regulate economic affairs, including the passage of what you or I might consider to be "irrational" legislation that harms economic liberty?
Barnett: I don't think there are very many people who would expressly say that states have the power to pass irrational and arbitrary laws of any kind. The Supreme Court has never said that. In fact, it's denied it. I think that the Constitution is not perfectly libertarian, and it is constitutional for states to regulate economic liberty in ways that we libertarians might find counterproductive and bad. That doesn't necessarily make them irrational and arbitrary. The Constitution provides an outer boundary that is more libertarian than the one the courts currently enforce, but may not be perfectly libertarian.
I would also stress that libertarians do believe in the reasonable regulation of liberty. Libertarians have nothing against contract law. Contract law is an elaborate body of doctrine meant to regulate the making and enforcing of contracts. Libertarians do not object to property law, which is an elaborate body of doctrine related to the acquisition, ownership, possession, and disposition of property. Or tort law. These are all bodies of law that regulate the exercise of liberty and distinguish between rightful conduct and wrongful conduct.
reason: Many conservatives are critical of substantive due process, or the use of the Due Process Clause to protect substantive rights from government regulation. You're also somewhat critical of it in this book. But at the same time you maintain that judges should use the Due Process Clauses to protect substantive rights in certain cases. Could you explain that?
Barnett: Substantive due process was a phrase made up to criticize the Court for using the Due Process Clause in certain ways. It was meant as a pejorative, like judicial activism. It was meant to be contradictory. Substantive due process is a contradiction in terms; procedural due process is a redundancy. So it was always a pejorative term. Modern substantive due process is objectionable because it relies on judges to distinguish between liberties they find to be fundamental and liberties they find not to be fundamental, and to protect the former and not protect the latter.
The Due Process Clause is about the application of statutes that purport to be laws to individual persons. It's part of the due process of law that an individual person can challenge whether a law is within the just powers of the government to impose on them and is properly a law. And they ought to be able to do so before a neutral tribunal, which is what is provided by the judiciary. So in that sense judges should be able to say whether a law is within the just powers of government, and they're going to have to look at the substance of the law—not just the way it was passed—in order to assess that.
reason: In other words, being able to go to court to vindicate your rights is part of what the due process of law covers?
Barnett: One way of looking at this is when you bring a First Amendment claim in court, there's no reason why it's not a "substantive due process" claim. It's part of the process of law that individuals can go to court and challenge a statute that's being applied to them because it violates the First Amendment. We just think of that as a First Amendment case, but the challenge that's taking place in court is part of the due process of law. And to handle that challenge you need to look at the substance of the law to see if it violates the First Amendment.
reason: Your previous books have been published by academic presses and written largely for scholarly audiences. This book reads more like a call to arms. Who is your intended audience here?
Barnett: This book starts off by talking about my experience in challenging Obamacare. And I do believe the Supreme Court's decision in Obamacare represented a legal-cultural inflection point for the conservative and libertarian legal movement. Up until that time, those of us who argued for the kind of judicial engagement we've been discussing were clearly the minority view within the conservative legal movement. The Obamacare decision had a very galvanizing and chastening impact on conservatives generally, and I believe caused them to begin to rethink this reflexive acceptance of a progressive concept of judicial restraint.
Now exactly where that rethinking takes them is an open question. This book is intended to offer my proposed approach to the appropriate role of judges going forward. It's directed more specifically at conservatives than the left. In the past my academic writings have probably been more aimed at the progressive mainstream of legal academia, whereas this book is really more aimed at conservatives—and libertarians, because I don't think libertarians fully understand what they ought to be for, either.
That's my target, therefore it has a certain stridency my other writings haven't had. I presented the book to a seminar here at Georgetown and one of the students reasonably replied that as a progressive he found the rhetoric a little bit off-putting. And I replied, "It wasn't written for you." It was written for people who already agree on some of these things but have a different view of judges. And I think their different view of judges has always been based on a different view of "We the People" and popular sovereignty. It's a book that goes back to first principles in order to expose people to this other vision of popular sovereignty.
reason: You just referred to some conservatives having a "progressive concept of judicial restraint." Lots of conservatives probably think judicial restraint is a bedrock conservative principle. What does progressivism have to do with it?
Barnett: This book is primarily a narrative. It's a story that starts at the beginning and takes us to the present. And a very important chapter in that story, and in my book, is about how the progressives changed our view of the Constitution as well as our view of the role of judges. They changed it from a republican Constitution, where judges were considered to be guardians of the rights of the people, to a democratic Constitution, where judges are problematic because they thwart the will of the people and therefore should exercise their power of judicial review with restraint.
By the way, the phrase "the power of judicial review" was relatively unknown prior to the 20th century. Prior to the 20th century, prior to the rise of progressivism, there was simply a judicial duty to enforce the law. And the Constitution being higher law, any inferior law such as a statute that was in conflict with the higher law was invalid. Where did "the power of judicial review" come from, as opposed to the judicial duty to follow the law? It came from, I believe, the idea that duties are obligatory; you have to do it. But powers are discretionary. By shifting from the idea of duty to follow the law to the power of judicial review, [progressives] introduced the notion of judicial discretion and judicial restraint precisely to get judges out of the business of protecting the liberties of the people from progressive state legislatures and then a progressive Congress, in the form of the New Deal Congress. So this was a calculated political strategy. And modern political conservatives were all educated by progressives of various kinds, and the debate on the Court after the New Deal was between the restraint progressives and the activist progressives. Conservatives tend to line up with the restraint progressives. The book tells this story in some detail.
reason: In your view, what Supreme Court decisions reflect the judicial duty properly applied?
Barnett: I spend a great deal of time talking about the lower court decision inWilliamson v. Lee Optical, which was called Lee Optical v. Oklahoma. In the lower court decision, which was a three-judge panel, it evaluated a restriction on the practice of selling eyeglasses in Oklahoma. Lee Optical was a company that operated basically like LensCrafters does today: You could go into the store to get new glasses and they would figure out what your prescription was by putting your glasses in a lensometer, and they would make you a new pair of glasses. The legislature basically outlawed what we would think of as LensCrafters in favor of sending everybody to ophthalmologists and optometrists, denying opticians the right to pursue this occupation. The lower court judges said that this was unconstitutional because it was irrational and arbitrary, and they took evidence, they heard argument, they heard witnesses, and after evaluating the evidence in a lengthy opinion they explained why this was irrational and arbitrary.
It then went to the Supreme Court and the Supreme Court said, "Forget all the evidence. Forget realistically assessing the law. As long as we can imagine a reason why the legislature might have done these things, even if there's no evidence that's why they did it, it's constitutional enough for us." I think people should look at that [lower court] decision as a model of what judges are capable of doing.
reason: You were an adviser to Rand Paul's presidential campaign. Now that Paul has dropped out of the 2016 race, are there any remaining presidential candidates who align with your legal views?
Barnett: I'm not advising any other campaigns, and by the time this interview appears we may know who the Republican nominee is going to be. Libertarians—and conservatives also—may be put to some very hard choices about who they should support in the next election.
reason: The recent death of Justice Antonin Scalia has thrown the future of the Supreme Court into doubt. You got to know Scalia personally and also argued before him in Gonzales v. Raich, where you represented medical marijuana patients in a federalism challenge to the Controlled Substances Act. Can you say a few words about Scalia and his influence on the law?
Barnett: I first met Justice Scalia when I was a research fellow at the University of Chicago. He was a contracts professor. The next time I saw him was when I argued the Raich case. He was my toughest questioner that morning and he ruled against us. I must admit that I was bitterly disappointed by his stance. I wrote a rather strident article condemning his approach, called "Scalia's Infidelity," in the Cincinnati Law Review. After I came to Georgetown I got to know him professionally. We never became social friends but I got to know him in a variety of venues.
He visited my small seminar to talk about his new book, and I introduced him at various talks at Georgetown. And I grew very fond of him. I also taught constitutional law and I taught his opinions. I came to respect his concurring opinion in the Raich case. I don't have a very high opinion of Justice [John Paul] Stevens' majority opinion, but I think Justice Scalia's concurring opinion is quite well-reasoned and only makes a single assumption that changes the outcome. And that is whether we were entitled to a meaningful hearing on whether this prohibition on medical marijuana was essential to a broader regulatory scheme. He adopted the judicial deference and restraint approach, and once he did that the outcome was determined. But the structure of his argument was actually pretty good. So I got to know him, I got to respect him, and then upon his passing I realized I had actually grown to like him. I hadn't realized that I had grown some affection for him.
His legacy is complicated. He had a huge impact on the way the Supreme Court does its job. When he came in, the Supreme Court was anti-textualist. It paid scant attention to the text; it pretty much did whatever it felt like. This was exemplified by his sole dissent in Morrison v. Olson about the independent counsel law [allowing for investigations of public officials to be conducted by "special prosecutors" who do not answer to the president]. It was an 8–1 decision. Chief Justice Rehnquist wrote the majority. Justice Scalia had just come on the Court when he dissented and questioned [the law's] constitutionality based on first principles and separation of powers. He predicted very bad results as a result of this law and his prediction proved prescient. Not because he was such a great prognosticator but because he was following the principles of the Constitution.
We've gone from that decision in the 1980s to the Heller case in 2008 in which now, representing the majority, Scalia writes a comprehensively originalist opinion restoring to the Constitution an entire amendment in the Bill of Rights, the Second Amendment right to keep and bear arms. Even the dissenters in that case, as exemplified by Justice Stevens' dissent, were speaking wholly in originalist terms. Nine justices all talking about original meaning. That's a sea change, and he is responsible for that sea change.
reason: You've been a constitutional scholar and litigator for three decades. From where you stand now, are you optimistic or pessimistic about the future of the law?
Barnett: It's going to depend on who replaces Justice Scalia and who replaces other justices that will inevitably retire. If they're replaced by progressives who believe in a living Constitution then we're in for a very long winter. Winter is coming, Damon.
Things have been moving in the direction of originalism, things have been moving in the direction of limited government in the courts—very slowly, very incrementally, but it has been moving forward. And we're winning the intellectual battle outside the Court, which has started to have an effect inside the Court. But ultimately who gets to be on the Court is a political matter that gets to be decided by an elected president and an elected Senate. If the elections go the wrong way, or the president is insufficiently aware of these issues, or delegates this decision to the wrong people, then we can be in for a very bad time.