Trevor Burrus: Welcome to Free Thoughts from
Libertarianism.org and the Cato Institute.
I’m Trevor Burrus.
Aaron Ross Powell: And I’m Aaron Powell.
Trevor Burrus: Joining us today is Randy E.
Barnett, the Carmack Waterhouse Professor
of Legal Theory at Georgetown University Law
Center and the Director of the Georgetown
Center for the Constitution and a Senior Fellow
at the Cato Institute.
He is the author of the new book Our Republican
Constitution. Welcome to Free Thoughts.
Randy Barnett: Thanks both of you for having
me back.
Trevor Burrus: So you and I were heavily involved
in the Obamacare litigation, the first round
of that and that’s how you opened up the
book discussing that case and how that case
helps frame the argument you’re making in
the book. So why is that case related to this
idea of Our Republican Constitution?
Randy Barnett: Well, that is the – my experience
in that case and the outcome of that case
is what led to writing this book. It’s the
impetus for that. My last book, Restoring
a Lost Constitution, was about the original
meaning of the constitution that both – that
we ought to be enforcing the text – we ought
to be interpreting the constitution according
to its original meaning and of course auto-enforce
that original meaning and then what it was,
what that original meaning was.
But it turns out that getting the meaning
of the constitution right is not enough. In
the Obamacare case, we had five votes for
our theory that an individual purchase mandate
was beyond the power of congress to enact
under the commerce clause, the necessary and
proper clause and even the tax power; and
yet we still lost the case and we lost the
case because Chief Justice Roberts adopted
what he called a saving construction to change
the individual insurance requirement into
an option to buy insurance or pay a modest
tax and he could do that he said because the
tax level was so low as to be non-coercive
and therefore it could be upheld as a tax
and not a penalty.
Although he said that was not the most natural
reading of the statute, he said it was a reasonably
possible reading of the statute and he was
obligated to adopt this he said because of
the deference he owed to the democratic branches
and it was not up to the courts to save the
people from their own political choices. That’s
what he said.
Aaron Ross Powell: Isn’t that what the whole
constitution for in the first place?
Randy Barnett: Yes, yes. So it turns out – we
had five notes that our theory of the law
is right and usually when you went on the
law, you win the case. But in this case, we
won on the law. We still lost the case because
the fifth vote asserted a particular conception
of the judicial power or the judicial role
to avoid – in fact that’s the name of
the doctrine, Constitutional Avoidance, to
avoid the constitutional problem in the law.
So I thought it was necessary to have a – to
write a book, particularly to influence if
possible the political process of selecting
a president. About what the proper role of
judges are and it turned out the way to address
that was by distinguishing between a democracy
and a constitutional republic or we call it
a constitutional democracy and a constitution
republic.
Under a constitutional democracy, you have
one vision of judges. Under a constitutional
republic, you have another vision of judges
and that’s one of the things that has been
dividing both Americans from each other and
even conservatives from each other and that’s
why I wrote the book.
Trevor Burrus: So someone might say, “But
it’s a republican constitution. But John
Roberts is a republican.” So isn’t that
exactly what you wanted out of that?
Randy Barnett: Right. So obviously when I
use the term “republican” in this book,
I don’t mean the current modern republican
party and I also don’t mean modern – all
modern conservatives either. I’m talking
about the kind of government that we have
which can be distinguished from a democracy.
The book starts off by talking about – first
of all, it starts off by talking about the
declaration of independence and the philosophy
that is – of governance that is contained
in the first two paragraphs of the declaration,
which identifies the rights of the individual
people, the rights to life, liberty and the
pursuit of happiness, all of which are rights
individuals possess.
The next set says it’s to secure these rights
that governments are instituting among men,
which establishes that first come rights and
then comes government to secure these rights.
Then comes a republican constitution, both
to empower government to secure rights and
also to limit government powers to the securing
of rights and not going beyond that. That’s
a vision that said, “Ah, with the democratic
constitution’s deference to majoritarian
will.”
Aaron Ross Powell: So the declaration of independence
is not part of the constitution. It’s not
in the constitution. So, why should we care
what the declaration of independence says
when we’re setting out to interpret the
constitution?
Randy Barnett: Because the declaration of
independence was the legal document that separated
us from the polity that we were once a member
of, which was Great Britain and what the founders
believed was in order to justify their actions
as non-traitorist, they needed to have it
offer a political and legal justification
for their action. The declaration took on
that responsibility. It identifies the political
theory on which the country was founded and
then there were after that two tries at government.
The first try was the Articles of Confederation
and that didn’t work out as well as some
people wanted. Then came the constitution
and then came amendments to the constitution
that the republicans in congress put together
after the Civil War which further changed
our republican constitution in a more republican
direction.
So to understand what is in the constitution,
it’s important to understand the theory
of why we have the constitution and that’s
what the declaration provides us.
Trevor Burrus: Some libertarians might say
that the constitution after the Articles of
Confederation was something like a coup that
was actually undercutting and actually people
at the time – some people at the time thought
that something like this was actually undercutting
the kind of promise of the declaration and
creating a much too powerful federal government
that was going to usurp our rights and that
seems to have been the case. So can we really
hold up the constitution as a document that’s
libertarian when we’ve had this government
authorized under it and many of the things
that the people who opposed it said what happened
have happened?
Randy Barnett: Right. This is a good question.
I’m very familiar with this libertarian
position, dating back to when I was in law
school. So I’ve known about it for a long
time and look, I think it’s a reasonable
position for people to take. It’s not obviously
false. But I do think at the time there was
an economic downturn that everyone including
anti-federalist conceded was happening.
Then there was a disagreement about what the
cause of that downturn was and the federalists
discerned that the cause of that downturn
were too much democracy in the States.
I don’t think there’s any question, that
there was too much democracy in the States.
There’s so much democracy in the states
even after the constitution was founded that
states had the power to authorize the enslavement
of some of its people by others of its people.
Trevor Burrus: It’s hard to imagine more
democracy than that.
Randy Barnett: Right.
Trevor Burrus: Authoritarian.
Randy Barnett: And the Democratic Party was
founded in order to – the modern democratic
was founded in 1830s and 1840s to defend the
extension of that democratic approach to the
territories, in which – I mean in part,
it was founded for that reason, in which the
majority would get to vote whether a state
was going to be a slave or free. First of
all, the minority, the Blacks, weren’t even
going to be allowed to vote. But even if they
were allowed to vote, they would still be
outvoted. That’s not a form of government
that I think libertarians ought to be very
fond of.
Trevor Burrus: Well, the original constitution
certainly – well, I mean there’s argument
on this. But it allowed slavery to exist in
the States.
Randy Barnett: It did, it did. But first of
all, it empowered congress to abolish the
international slave trade. That’s something
it did do. It also restricted the state’s
ability to restrict the impairment of contracts,
which is one of the principal reasons – one
of the principal complaints the federalists
made about states is that they were impairing
the rights of creditors in order to favor
debtors who are more numerous. They restricted
the ability of states who were at trade barriers,
creating a free trade zone in the United States,
that is probably most responsible for the
prosperity that we’ve enjoyed over the balkanization
that was existing under the Articles of Confederation.
Look, I think we can have a reasonable debate
about this and there’s no question that
we have an extremely powerful federal government,
far more powerful than the founders wanted
or designed. Then you could say post hoc ergo
propter hoc. But that doesn’t necessarily
follow. I mean one of the reasons why we have
the powerful government we have is because
the constitution has been misinterpreted.
So the question is, if the constitution were
interpreted according to its original meaning,
how libertarian would that constitution be?
I think especially as modified by the 13th,
14th and 15th amendments, it would actually
be the most libertarian constitution ever
enacted in the world, at least in any major
country.
Aaron Ross Powell: What’s the argument for
interpreting it based on its original meaning,
that isn’t look if – the way we’ve been
interpreting it has led to policies that you
Randy Barnett don’t like and the rest of
us in this room don’t tend to like. So we
should therefore interpret it in a way that
will point in policies that we happen to prefer
and that happens to be original meaning, which
is – it seems to have less normative weight
than if we can say there’s a freestanding
reason why this is the right way to go about
it.
Randy Barnett: Well, that’s a good question.
I think I’m going to have to answer it in
two parts. First is the affirmative argument
for original meaning, which does not rely
on policy outcomes and that is that in a republican
constitution, the constitution is not the
law that binds us. It’s the law that binds
those – it’s the law that governs those
who govern us.
Trevor Burrus: If there are speed limits and
you’ve got rules of the road and everything
…
Randy Barnett: That’s right. And if that’s
the case, if this is – if the constitution
is put in writing to provide the law that
governs those who govern us, then those who
are governed by it cannot anymore change the
law that govern them than we are allowed to
change the law that governs us, without going
through the legislative process or in their
case, the amendment process.
That yields the conclusion that the meaning
of the constitution should remain the same
until it’s properly changed by amendment.
That is simply a shorthand for originalism.
So that is an argument for why the original
meaning should govern because that’s the
purpose of a constitution is to govern those
who govern us.
Now that’s part one. Part two is secondarily
– the first question before you decide whether
you want to follow a constitution or not is
to figure out what the constitution means
and then you decide whether you want to follow
it or not.
So this – the originalism is an answer to
the question of what the constitution means.
It’s not an answer to whether it’s a good
constitution that merits being followed. So
the confederate – we know what the meaning
of the confederate constitution is. What’s
it original meaning? Then the question is,
was it a good constitution or a bad constitution?
So you have to separate the question of meaning,
which I think is answered by the originalism
theory, the originalism approach from whether
it’s a good constitution or not. So if you
read and you figure out what it means, then
you ask, “Well, is this meaning good enough
to merit a duty of obedience in the citizenry?”
This is something I talk about in my last
book more than this book. To be technical,
we are not bound by the constitution. The
question is, are we bound by the laws that
are passed pursuant to the constitution? Then
we are only bound by such laws if the constitution
is deemed to be good enough to produce laws
that are binding in conscience, meaning they
are laws that are likely to be necessary and
proper.
If all of that is true, then that makes the
constitution good enough to be legitimate
in my mind and that’s a separate question
from what it means. I think it’s really
a mistake to collapse. This is what living
constitutionalists do. This is what the left
does. To collapse meaning into what we want
it to say. So we want it to say the right
things. Therefore we are going to make it
mean those things and that is to collapse
meaning and whether it’s good enough into
one enterprise.
Trevor Burrus: There’s an incredible congruence
between things that people think is a good
idea and things that people think are constitutional
and that’s something that of course people
say to us as Aaron’s question said. Like
wow, what you think is constitutional is also
things you think are good ideas and we can
say that to Jack Balkin.
But it’s very interesting when someone thinks
something is constitutional, that they think
is a bad idea on a policy level, which doesn’t
happen that much.
Aaron Ross Powell: Or the other way around.
Trevor Burrus: Or the other way around.
Randy Barnett: Well, look, in chapter nine
of this book – first of all, most of the
constraints of the constitution that I argue
for in this book are based on federalism and
separation of powers. They’re not really
based on outcomes of particular policy issues.
They’re about who gets to decide. So for
example at the federal government level, the
congress is supposed to decide on what the
law is, not the president, through the administrative
state.
That’s not a matter of outcomes. That’s
a matter of who gets to decide. At federalism,
who gets to decide? I think most decisions
that are important decisions should be decided
at the state level regardless of what the
outcome is because that’s going to – I
think it will lead to better outcomes. But
it’s not an outcome by outcome decision.
There is chapter nine of the book, in which
I argue that the outer boundaries that are
to be enforced even at the state level are
against laws that are irrational and arbitrary.
At that point, the substance of the law actually
makes a difference. But this is an outer guardrail.
Within that guardrail, I think state legislature
authorized to enact laws that are in good
– that are good faith efforts to exercise
their proper powers. Like for example the
power over health and safety. If they’re
really exercising those powers in good faith,
then it’s constitutional even if libertarians
would object to these laws as being unnecessary
and contrary to what a libertarian policy
prescription might be. They’re still nevertheless
constitutional.
There’s a big gap between something that’s
irrational and arbitrary which indicates it’s
being enacted in bad faith as rent-seeking
laws and a law that’s enacted in good faith
but might be bad policy.
Trevor Burrus: We did an episode which came
out before this one with a guy named Gary
Gerstle. I don’t know if you’re familiar
with him. He’s a historian at Cambridge,
University of Cambridge in Harvard. He has
a new book called Liberty and Coercion where
he kind of discusses that the big problem
that the conservative libertarians have not
dealt with adequately is states’ powers.
That states have really, really, really big
powers under the original constitution to
be almost despotic in terms of how they pass
welfare – health safety welfare and morals
legislation.
A lot of times, libertarians will say, “Well,
what about state’s rights?” But then states
can be crazy as Madison well knew and so the
question is, “How crazy are we going to
let states be?” You’re saying irrational
arbitrary is the limit of craziness. That
seems to put a lot of power in the judges
to decide whether or not a law is irrational
and arbitrary, which could go in a lot of
different directions.
Someone could say, “Oh, well, the fact that
this law doesn’t give healthcare to everyone
is irrational and arbitrary.” I mean there’s
a lot of power …
Randy Barnett: No, irrational and arbitrary
has more of a particular meaning as I talk
about in the book. An irrational law is a
law where the means don’t actually really
line up with – these are purported ends,
suggesting that you’re irrational. I mean
literally you’re acting irrationally. You’re
not actually trying – you’re not actually
doing what you say you’re doing.
Now it’s usually – legislatures are usually
acting irrationally when they’re not actually
pursuing the end they say. They’re pursuing
a different end, like helping out their buddies,
which is mostly what they do.
Trevor Burrus: But is that OK?
Randy Barnett: No, no, it’s not OK. It’s
not even OK under any kind of good government
conception that they’re just allowed to
help out their friend.
Trevor Burrus: But certainly the states in
1795 did a ton of that.
Randy Barnett: Yeah.
Trevor Burrus: And the constitution was pretty
– I mean that was a – tariff laws, keep
it protecting businesses, passing legislation
because they don’t like certain religious
– I mean there was a lot of that.
Randy Barnett: Number one, the original constitution
was meant to cut down on that, which is why
the contracts clause is there and why the
interstate commerce clause is there in order
to take those powers away from state. So that’s
number one.
There’s still a lot – enough power to
enslave people and then that power was restricted
by the 13th, 14th and 15th amendment. So they
have less power than they even had at the
founding and where they are enacting rent-seeking
laws that are essentially just trying to help
out the favored special interest. Those should
be unconstitutional and I don’t think good
government people would defend that.
The arbitrary laws, just to get to what arbitrary
means, arbitrary laws means if I’m treating
you differently than you – and I don’t
have any good reason for distinguishing you
from you. Then I’m acting in an arbitrary
way and that’s something else that’s beyond
the powers of a republican legislature, beyond
the just powers to use the declaration of
independence’s phrase of an American legislature
to enact.
These are the outer boundaries and they are
something that can be determined by argument
and evidence, something the Institute for
Justice has made a living doing. When you
ask, “Well, just why can’t these monks
make caskets and just why can’t these people
braid hair without getting a cosmetology license?
Just why can’t you engage in horse massage?”
Just tell us why you can’t do that. Show
us that it’s rational. It turns out that
when challenged, they can’t show that it’s
rational. Now then the question is, is that
something that judges should have a say so
in? And the answer I think is yes, it should.
Does it give power to judges? Of course it
does.
But without that power, then that means both
legislatures and also unelected, administrative
boards, which are usually dominated by the
industries that are supposed to be regulated
by them, they have unfettered power to restrict
the liberties of the individual. What the
book is about is about how – ultimately
the ultimate sovereign are the individual
persons, the individual citizens, each and
every one of us.
Judges as agents of us are there to protect
individuals when individuals have a justified
claim against other groups including the legislature.
Aaron Ross Powell: How do we go about assessing
if – so we’ve got say a novel case in
front of a set of judges that hits upon some
part of the constitution and you’ve got
to figure out what that original meaning is
of the constitution. I mean given that the
constitution is just words. It’s often not
a whole lot of them. They’re sometimes a
little bit opaque languages, terrifically
slippery.
We’ve got lots and lots of evidence about
what people at the time thought or said or
advocating for or against when they were creating
this language. There isn’t necessarily a
consensus. So how do we go about figuring
out what original meaning is as opposed to
– because we’ve got to – someone has
got to figure it out.
Trevor Burrus: So for example, quartering
soldiers. Yeah. Walk us through the constitutional
interpretation. So we have an issue of – a
bunch of police who want to take over someone’s
house and someone makes a …
Randy Barnett: Let me ask you something. Do
you think quartering soldiers meant dividing
them up into fours and pulling them in four
different directions, like …
Trevor Burrus: Like what happened to Braveheart.
Randy Barnett: Well, it’s the same word.
So therefore if we don’t believe in the
original meaning, then it could mean that
then, right? Because it’s – that’s the
meaning. It could be that meaning.
Trevor Burrus: So it’s illegal to divide
soldiers at …
Randy Barnett: Yes, that’s right. That’s
all the Third Amendment is about.
Trevor Burrus: OK.
Aaron Ross Powell: Well, but that doesn’t
– that doesn’t seem to get us all that
far because what that does is says there’s
– sure, so there are outside boundaries
where it becomes very obvious that that’s
not what it means.
Randy Barnett: I hear a concession. I hear
one has already made a concession and just
by the example that you’ve given. I should
say that – I love this podcast because I’ve
actually never before thought about quartering
as ambiguous. Usually it’s domestic violence
is the – to protect against domestic violence,
that’s the usual example I give because
domestic violence now means spouse abuse and
then it means like riots in the streets. So
does that mean congress has the power to call
out the militia …
[Crosstalk]
Randy Barnett: But now quartering is actually
equally ambiguous. The answers to what those
mean are just instinctively they are what
they meant when they were enacted. Now, who’s
to – so you’ve asked a big question. How
do we decide? Well, first of all, you got
to take a look, which is something courts
were not doing.
Trevor Burrus: At the text, yes.
Randy Barnett: Yeah, and you got to take a
look and its meaning at the time it was enacted.
You at least have to look at it. If you do
look at it, one of the things you’re going
to find is it’s a lot less open-ended than
it seems to be if you don’t look at it.
Richard Posner just recently said something
about how judges shouldn’t spend even 10
seconds looking at the original meaning of
the constitution, in part because it’s so
ambiguous and amorphous. Hey, wait a second.
How do you –
Trevor Burrus: Mostly because he still has
a problem with Scalia.
Randy Barnett: How do you know it’s ambiguous
and amorphous unless you look at it first?
Trevor Burrus: Yeah.
Randy Barnett: What an idiotic thing to say?
I will say that about an actually sitting
inferior court judge. So you have to look
at it to know if it’s amorphous and it turns
out when you do look at each one of these
clauses, which were overlooked for a very
long time, they have more meaning there than
you think.
But do they have enough meaning to get you
all the way to an outcome in a particular
case and controversy? Sometimes the answer
is yes and many times the answer is no. They
provide a boundary as you put it within which
you can make some – you have to make some
decisions and then courts adopt and they always
have adopted, implementing doctrine, to try
to create rules of law that can be followed
in the future. Those rules of law are only
as good as they are and they sometimes need
to be modified and changed as circumstances
arise and it reveals that this doctrine doesn’t
work as well as we thought it would.
But it doesn’t work as against the more
abstract or general provisions in the constitution.
So the constitutional text is not enough to
decide all cases and controversies unfortunately.
But that’s one of the reasons why it can
remain in effect for a very long time because
it’s not that – it’s not unreasonably
specific.
Who gets to – now if what you’re asking
is what’s the practicality of how you figure
out what the original meaning is and practice,
the truth is what we really need is a division
of labor because it is not realistic to expect
judges to be able to do first class originalist
research de nouveau on their own. They don’t
have the time and the training to do it.
Although I think they could do it if they
had the time. They don’t have the time.
We need a division of labor and that means
legal academics and advocates but also legal
academics should be the ones that are trying
to assess the original meaning of each of
the clauses in advance of a case arising that
we would then argue about because we would
then choose upsides on political grounds.
We should be looking at the original meaning
before that happens as academics and then
there should be an intellectual contest amongst
academics about that meaning. So I would read
a very – I might read a very persuasive
article about the original meaning of X. I
would say, well, look, for all I know, that
sounds really good to me. But I’m not going
to be 100 percent sure of that until someone
else who knows a lot more about X than I do
comes along and gives me the best shot about
why that’s wrong.
After I’ve read the opening theory, then
I read the critique a bit. I will be able
to assess better what I – whether what I
think X means. So in the meantime, I will
go with the best explanation I’ve heard
and then I will wait for that to be vetted.
But all this should be done outside the courts,
in advance of a case or controversy by legal
academics who specialize in this.
Aaron Ross Powell: If the original meaning
is then at least clearer than we might expect
it to be, and it’s …
Randy Barnett: Can I give an example of that?
Aaron Ross Powell: Sure, yeah.
Randy Barnett: Equal protection clause is
not the equality clause. Equal protection
clause, you take all the words. It’s the
equal protection of the law. Protection for
example might end up doing a lot of work in
the equal protection clause because unless
we’re talking about extending the protection
of the laws, then the equal protection clause
does not apply. The due process clause is
not about due process. It’s the due process
of law clause. Now the word “law” might
do some work in the entire meaning of that.
So a lot of the times, these things end up
being amorphous because we don’t even quote
the whole clause, much less the original meaning
of each of the words in the clause and how
they work together.
Aaron Ross Powell: So if we take that and
it’s as clear that – if these are the
rules by which the government gets to govern,
then they shouldn’t be able to just kind
of make them up as they go along. Then the
question is the – this is not – a lot
of people disagree with you. A lot of judges
go at it differently. A lot of legal academics
think that we ought to adopt different standards.
So why do they disagree with you? Is it that
they simply – it’s the policy side of
it? Like they think that the original meaning
would get in the way of …
Trevor Burrus: The Department of Education.
Aaron Ross Powell: Yeah, wanting to advance
the kind of social engineering that they like,
which is – so they’re consciously doing
that. They’re like, look, I’m going to
reject this because it would stop me from
doing what I want to do or do they have more
principled reasons for thinking, no, there’s
– there are better ways to set about interpreting
and enforcing this text?
Randy Barnett: First of all, they don’t
disagree as sharply as you might imagine.
Trevor Burrus: Not anymore especially.
Randy Barnett: As sharply as they used to.
Now with the composition of the court changes,
they may go back to disagreeing more than
they used to, than they are recently. But
they basically say, well, originalism – first
of all, like Justice Kagan said, originalism
certainly bind us with all the hardwired parts
of the constitution, like how many houses
of congress there are and how old do you have
to be to be president. So they’re willing
to concede a lot to originalism and then they
just said it’s the amorphous clauses that
we argue about. So that’s a big concession.
Secondly, they argue who are not originalists
that originalism is one of the modalities
in which the constitution should be enacting
it. It might be the starting point. So that’s
a big concession as well. So they don’t
completely – there are a few who do completely
repudiate it like Richard Primus from University
of Michigan. But they’re outliers and they
may be right, but they’re outliers.
So number one, they don’t completely repudiate.
Then you ask me a second question. What motivates
their rejection of it? And I hesitate to talk
about motivation but the way – the form
of argument they typically make is based on
results. It’s either based on policy results
or it’s based on what you might call the
canonical case results, which is that there
are certain cases like for example Brown versus
Board of Education which are canonically true.
They’re taken as given and if you have a
theory that would lead to the results that
would be contrary to that case or anti-canonical
cases like Lochner v. New York, if you have
a theory that would lead to upholding an anti-canonical
case, well then there’s something wrong
with your theory.
In addition, they might also argue that this
is based on policy as well. It doesn’t lead
to as good results. Well, if their actual
argument is based on policy, then I will take
them if their motive is based on policy. Some
of the excuses they give for not following
originalism and it’s too vague and we can’t
figure it out are really secondary to their
major motivation, which is policy or the canonical
cases argument that we have to reach certain
results.
These may not be matters of policy as much
as principle. We have to read certain results
because otherwise, we don’t – we’re
not a country worth having.
Trevor Burrus: It’s like they’re conflating
the one and the two. What’s the meaning
of the constitution and second what does it
normatively …
Randy Barnett: Right. I think an honest – I
mean my friend Sandy Levinson who wrote the
book Our Undemocratic Constitution which in
many ways was the inspiration for my book
and I credit him in the acknowledgements with
having inspired my book. He’s a very faithful
reader of the text of the constitution, which
is what led him to write his classic article
Our Embarrassing Second Amendment. He was
in favor of gun control but he said, hey look,
this sure looks like it’s against gun control
and he’s in favor of a more democratic constitution.
But he’s willing to say, hey look, the actual
constitution we have is not democratic.
That’s an honest way of critiquing the constitution.
He’s not an originalist because he doesn’t
think we ought to follow the meaning of the
text because it’s bad. But he’s willing
to acknowledge what the meaning of the text
is when he criticizes it.
Trevor Burrus: So if we’re going to go – I’m
going to do one more question on originalism.
Definitely we got to get into the …
[Crosstalk]
Trevor Burrus: I know, exactly. But we actually
– it’s something Aaron and I have talked
a lot about and we haven’t actually had
a good episode about why originalism – one
of the libertarians …
Randy Barnett: You’re going to have to have
me back on and talk about this.
Trevor Burrus: Of course, yeah. But the – so
the law that governs those who govern us and
they – so we treat it like a law that – maybe
we shouldn’t. But if we would like talk
about the laws that govern us, the actual
laws of tort and crime and things like this,
there are doctrines within those laws for
not interpreting them very strictly.
So for example doctrine of necessity in criminal
or tort law where you can – you can go and
break into someone’s cabin in the middle
of a winter storm as long as you pay them
back.
Randy Barnett: OK. Where are we going with
this?
Trevor Burrus: So we have a doctrine of necessity
in interpreting the constitution. That would
be one argument against the originalism. So
for example, Home Building & Loan Association
v. Blaisdell which is a case about suspending
mortgages during the new deal, impairing the
obligation of contracts. Why wouldn’t it
be – why is it OK to say, OK, usually we
should do this, but right now we have a doctrine
of necessity problem?
Generally we’re going to follow the law
that governs us. But just like the law that
governs the people, sometimes the government
has to go beyond that because necessity breeds
that and that is why we shouldn’t be following
the original meaning.
Randy Barnett: First of all, the doctrine
of necessity in criminal law in an extraordinary
doctrine that’s supposed to only apply in
extraordinary circumstances. Like most defenses
to obligations, more contract law defenses,
tort defenses, they’re all extraordinary
circumstances. You don’t draw the conclusion
from the extraordinary circumstances that
therefore there are no ordinary circumstances
in which the law ought to apply. So that’s
number one.
What has ultimately happened with respect
to this doctrine of necessity at the constitutional
level is it becomes the rule rather than the
exception. This is exactly what Justice Holmes
did in his dissenting opinion in the Lochner
case where he says, well, people have positive
– there’s this freedom of contract. Hey!
But just the other day, we upheld Sabbatarian
laws in Massachusetts and look at all the
other laws that we’ve upheld!
Well, if you go back to the cases that he
has just looked at, they were all justified
as exceptions to the general rule that there
should be freedom of contract. Now if you
accumulate enough exceptions, you allow a
guy like Holmes to say, “Oh, well there
is no general rule. The general rule has been
refuted by your exceptions.” But they were
justified as exceptions in the first place.
Well, that’s an argument either for limiting
the exceptions to exceptional circumstances
or possibly not making exceptions in the first
place because that leads to what has been
called the slippery slope. In fact law professors
don’t like the slippery slope argument.
They don’t like the slippery slope objection
because they think, well, you know, you can
always stop it. Well, it turns out if you
make enough exceptions under a theory of common
law and a logical reasoning, you would lead
to Justice Holmes and all of a sudden the
exceptions swallow the rule. That’s the
slippery slope. So that’s an argument against
doing that.
Trevor Burrus: OK. So we can get into the
substance of the book. We have time. So we
left off – we did this whole segue on originalism
and then we got into sovereignty, individual
versus popular sovereignty. In the book you
discussed …
Randy Barnett: Well, I say individual sovereignty
is a form of popular sovereignty.
Trevor Burrus: Yeah, as a form of popular
sovereignty. You discussed a really important
case that people probably read in con law
but maybe not …
Randy Barnett: No, never in con law.
Trevor Burrus: I read it in con law.
Randy Barnett: You didn’t read it in federal
courts?
Trevor Burrus: Yeah, OK. Chisholm v. Georgia,
which is the first great constitutional case.
Tell us about that case and why it’s important.
Randy Barnett: Right. And you don’t read
it in con law. You only read it because Chisholm
versus Georgia is the case that’s reversed.
The outcome of which is reversed by the 11th
Amendment. So there’s a current 11th Amendment
doctrine which limits the – which protects
states from being sued in federal court and
since there is a federal courts doctrine that’s
based on that, and there’s an amendment
that’s based on that, people have to learn
Chisholm in order to understand what the case
was the Fifth Amendment was enacted to reverse
and that’s all they read it for.
But in fact if you look at what the reasoning
of – Chisholm involved a – a breach of
contract action brought by a citizen of South
Carolina against the State of Georgia for
the failure to pay for goods that were supplied
during the revolutionary war.
There’s a back story to this but I won’t
get into it. So the State of Georgia sued
for breach of contract under a jurisdictional
provision of Article 3 – I think it’s
Article 3. Now, I’ve …
Trevor Burrus: Yeah, definitely Article 3.
Randy Barnett: Yeah, Article 3, which says
that basically federal courts have jurisdiction
when a state is sued by a citizen of another
state. Well, Robert Farquhar, who is the executor
of the Chisholm and the state was certainly
– Chisholm himself was a citizen of South
Carolina. That’s another state. It really
looks like the federal courts have jurisdiction.
So let’s go to federal court and Georgia
said, “Uh-uh, you don’t have jurisdiction.
In fact, we’re not even going to show up
in court.” They don’t show up in court
because they said, “We have sovereign immunity.”
Trevor Burrus: Were they even arguing that
he needed to sue in Georgia court, sue Georgia
in Georgia court?
Randy Barnett: Yeah, Georgia courts. But they
can’t sue in federal courts. So we’re
not going to show up in the Supreme Court.
You have no jurisdiction over us because we
have sovereign immunity.
Trevor Burrus: Will this be something like
–
Randy Barnett: Let me just finish the explanation.
You’re jumping the gun here Trevor because
the audience doesn’t know the story of Chisholm
and you do.
So the Supreme Court says five to four. Georgia
doesn’t have sovereign immunity because
it’s the people that have immunity – our
sovereign. It’s not the states. The states
are not the ultimate sovereigns. The ultimate
sovereigns are the people. Robert Farquhar
and Chisholm were citizens of South Carolina.
They have a right to sue this subset of the
people, which are the State of Georgia in
federal court and it turns out lo and behold
the text of the constitution is perfectly
consistent with first principles here.
For that reason, five to four, we say that
you can’t sue. Then the 11th Amendment is
enacted and you will notice the 11th Amendment
says nothing about sovereign immunity. It
doesn’t say anything about who sovereign
is, because I don’t think an amendment that
said the states are sovereign would have ever
passed out of congress.
What it says is you can’t sue a state – we’re
going to change the text by saying you can’t
sue a state – a citizen of one state can’t
sue another state in federal court, period,
end of story. It says nothing about sovereignty.
It doesn’t repudiate the reasoning of Chisholm.
It repudiates the outcome of Chisholm because
states objected.
Let me tell you why states objected. States
objected because part of the deal they were
sold in going along with the constitution
was they were not going to be held to their
civil – their revolutionary war debts.
Trevor Burrus: Oh, yes.
Randy Barnett: And this is a way, a backdoor
way of holding the State of Georgia to its
revolutionary war debt and they said, “Hey,
wait a second. This is breaches. You said
this wasn’t going to happen.” Now it’s
happening. So we protest and enough states
– all the states kind of felt that way about
the revolutionary war debt and they said,
“Let’s cut that off,” and we pass the
11th Amendment to deal with that.
So the states actually had a legitimate beef.
But unfortunately for them, the text of the
constitution, the original meaning of the
text of the constitution was against them.
So guess what happened. They changed the text
of the constitution.
Trevor Burrus: The analogy I was going to
ask, would this be somewhat analogous to – because
I can also see states, especially in the very
new federal government, thinking that this
sort of foreign court or a distant court,
bringing – a citizen of France bringing
a suit against Germany and like a European
court as opposed to German – there was a
processional element to their courts. It’s
like our court system is good enough to sue
our government. Use ours, not a distant federal
court. That might be averse to that interest
of Georgia, which seems to be somewhat of
an analogy in the EU now, but it’s imperfect.
Now why is that – the sovereignty thing
that comes out of this becomes – so a baseline
for these republican constitution …
Randy Barnett: My point of citing Chisholm
is that the – the reasoning of Justice Wilson
and Chief Justice Jay. Justice Wilson was
one of the principal founders, one of the
principal framers of the constitution, one
of the premiere lawyers of the day. Jay is
obviously one of the men who wrote the – the
early federalist papers. A great dignitary
in the United States.
They both argued that it was in the United
States. It was the individual person who was
sovereign. They called them co-sovereigns,
joint sovereigns and I can’t remember the
phraseology that’s now in Chisholm.
It was because it’s the individuals who
were sovereign and not their groups that are
created that are called governments that are
sovereign, relative to them, they get to be
sued in federal court and the constitution
affirms that principle in its text.
So they started with first principles. Then
they went with text. They found they were
consistent and they went ahead with that.
Then they changed the text. So this identifies
the theory of individual sovereignty that
was adopted – that was agreed to five to
four – I’m sorry, five to – no, no,
it was agreed to four to one. I might have
said five to four earlier in the interview
too. But it was four to one. It was five justices.
That’s the theory that I talk about in the
book and that’s why Chisholm is important.
Trevor Burrus: Now, was this – we started
talking about getting away from the theory
of individual popular sovereignty versus …
Randy Barnett: Collective …
[Crosstalk]
Randy Barnett: Right.
Trevor Burrus: So Chisholm in 1792 and then
– is this democratic collective popular
sovereignty part of constitutional interpretation
in say 1810 or it comes along later?
Randy Barnett: Well, it’s not entirely clear
because it’s quite possible there are some
collective popular sovereignty concepts that
pre-existed the constitution. They were responsible
for the original republican forms of government
in the states that were very majoritarian.
So it’s possible that these two ideas really
coexisted. But the really ardently collective
vision of popular sovereignty seems to primarily
have originated with the modern – the Democratic
Party, which was formed by Jackson and Monroe
and those guys.
It isn’t the same as the Jeffersonian Party.
It’s the new Democratic Party that called
themselves the Democracy. I talk about this
in the book. Their theory was – in fact,
they didn’t have a two-party system theory.
Their theory was their party was going to
be the voice of the will of the people. It
was the party versus the government or the
aristocracy. So theirs was – they called
their party The Democracy. Then they ultimately
were called the Democratic Party as well.
Their theory was a Rousseauian ‎ collective
will idea as opposed – and then they said
that – you know, actually the founders believe
this too. But I don’t think the founders
did believe this. Of course they wanted to
invoke the authority of the founders when
they did this.
They – one of the things they were trying
to accomplish by invoking this was to solve
the slavery question and they did that by
saying that it’s up to a majority of the
people to decide whether a state is slave
or free and in the territories which was the
burning issue in the 1830s and 1840s, what
the territories would be. It would be up to
a vote of the people, which they call popular
sovereignty. It was not something that was
originated by Stephen Douglas but he made
the concept famous.
A majority would get to decide whether the
state would be free or not. They used this
Rousseauian will of the people to justify
that and that’s where this collective notion
of sovereignty gets purchased in our politics.
Trevor Burrus: How interesting that you actually
have a chapter in the book called – which
sounds maybe different than what you just
said. How slavery led to a more republican
constitution.
Randy Barnett: Right! Because we had a republican
party that was founded in the 1850s. The Wigs
couldn’t handle this and they fell apart
and the Republican Party was founded in the
1850s precisely to oppose this popular sovereignty,
a notion as applied to the territories. It
was a non-extension of the territory’s party.
They argued that first came rights, the rights
of the individual. Only then comes voting.
Eventually they can’t even take office before
the Southerners and the Democrats withdraw
from the union and eventually the republicans
take power and they pass the 13th, 14th and
15th Amendments that makes our constitution
more republican than it was at the founding.
This was something that was done by the Republican
Party.
Aaron Ross Powell: To make the story maybe
more concrete for our audience as far as what
a properly republican constitution would look
like, if we were – if we somehow magically
today shifted so that judges were applying
the correct view of the constitution and government
was in line with this, what would look different?
Randy Barnett: What would look different is
that the most important social and economic
issues would be decided at the state level.
We would have 50 state solutions. The other
thing that’s very important is that congress
would have to make all the laws in the country
and not offload law-making to the executive
branch in the administrative state. So those
are the two things that would be a major difference.
Congress would have to pass the laws. You
know, poor babies. They would actually have
to do the work and pass the laws.
Trevor Burrus: But they would be doing fewer
things too, fewer areas of …
Randy Barnett: Yeah, right. And states would
be making most of the economic and social
policy. As I explained in the book – I really
do rely a lot on Ilya Somin’s book on foot
voting. Well, it’s not the name of his book.
Trevor Burrus: Democracy and Political Ignorance.
Randy Barnett: Right.
Trevor Burrus: Yeah.
Randy Barnett: I think that’s what it is.
Yes. I mean he has got a couple of books.
I think that’s the book where he talks about
foot voting. The individual sovereign is empowered
by the ability to choose amongst 50 different
state jurisdictions to the mix of economic
and social policy they most prefer.
Something they don’t get to do, if everything
is adopted at the national level and you have
to leave the country if you don’t like the
– what happens at the national level. The
other thing that happens at the – if everything
is pushed to the national level is you have
a Hobbesian political war of all against all
because not only do you fight to get your
own policies enacted. But if you lose, you
have to live under the winner’s policies
and that’s a problem for you.
So devolving most of the important issues
to the states within the boundaries of irrational
and arbitrary laws, so there is still a federal
constraint on what states can do. Devolving
these decisions to the states can yield an
extremely rich diversity of policy mix that
mixes, that people can vote with their feet
to choose. Rather than have to try to protect
themselves by voting, which is a very difficult
thing to do, they can simply uproot themselves
and go to a state, which has a better mix
of policy and which is usually getting better
results from that mix.
The real problem we face is when citizens
go to the states that are getting better policy
results and they start voting the way they
voted in their bad states that had bad policy
results and they replicate those. That’s
too bad.
But anyway, that’s the major – the two
major changes that would happen is more diversity
to pick from and congress would have to make
the laws from now on.
Trevor Burrus: Now it seems like the Hobbesian
war of …
Randy Barnett: Do you see how moderate that
is? See how moderate that is?
Trevor Burrus: So does that mean that Bernie
Sanders – you said the Hobbesian war of
all against all, which we seem to be having
at least this year in this election and increasingly
so, we have …
Randy Barnett: Increasingly so because everything
is decided at the national level and so you
have to fight to the death not to lose.
Trevor Burrus: So in this system, could Sanders
go and rule Vermont in his socialist way or
his social democrat way? Then Trump could
go and rule New York and they could have their
own policies but be as different as they actually
are.
Randy Barnett: Yeah, as long as they’re
not – these laws are not irrational and
arbitrary. Let me go back to that a minute
because it’s really important to distinguish.
The irrational and arbitrary standards apply
to laws that restrict our liberties.
It doesn’t apply to tax policy and tax policy
is really what mostly – actually most of
the federal government stuff is done under
spending power, not under its regulatory power.
Some of it is – most of it is done under
the spending powers, which makes conditional
spending – you have to do X, Y and Z if
you want our money.
Then at the state level, most of what the
left wants is redistribution of income, which
is done by tax policy. It shouldn’t be done
by regulatory policy. Doing it by regulatory
policy is really a problem. I think it actually
is self-defeating. But doing it by tax policy
is what it is and the irrational and arbitrary
standard is what we would use to – or to
challenge restrictions on our liberty, but
this is not a purely libertarian position
I’m about to identify. But it is under our
constitutional regime to not consider the
restriction of liberty to tax you.
Trevor Burrus: Well, yeah …
Randy Barnett: Yes, but there might be an
extreme level of taxation which ultimately
amounts to a restriction on liberty. But at
any kind of reasonable level of taxation,
that’s not considered to be a restriction
on liberty. So for example, there’s a difference
between drafting you to make you fight in
the army and taxing you to pay somebody to
fight in the army. That’s the difference.
The rational and arbitrary standard I defend
in the book only applies to the making you
do something or stopping you from doing something.
It doesn’t apply to taxing a certain amount
of your income in order to give to other people.
That’s the kind of policies that can differ
from state to state and you could have a socialist
Vermont if it’s done by tax policy rather
than by regulatory policy.
Trevor Burrus: Would that have a problem within
the commerce clause possibly though? They’re
two very different states. That gets in the
commerce question.
Randy Barnett: They would just be taxing their
citizens and using the citizens’ tax money
for different reasons. I think that in fact
the constraints – the real constraints provided
by federalism in which people would be – all
the people with money would be fleeing Vermont.
Trevor Burrus: Yes.
Randy Barnett: Would be enough to constrain
Vermont. But it would have the legal power
to do so and it’s the reason why the progressives
pushed everything up to the national level
is because the ability to vote with your feet
is such a powerful constraint on policies,
that they want it to prevent people from escaping
and that’s why they had to do their things
at the national level.
Trevor Burrus: They also wanted everyone to
enjoy their beneficence. The more, the merrier,
right? I’m being fastidious.
Aaron Ross Powell: Back to the beginning of
our discussion, you mentioned that one of
the reasons you wrote this book or at least
one hope for publishing this book was that
it would influence political decisions in
the right direction.
So how is that working out or is there – are
you at all optimistic now where we are now
versus where you were when we wrote the – when
you wrote the book?
Randy Barnett: I blame my publisher. The original
deal was it was supposed to come out in September.
Then it got …
Trevor Burrus: You could have stopped it all?
Randy Barnett: I could have stopped – if
my book had only come out in September, none
of this would have happened.
Trevor Burrus: I can’t say that that’s
wrong.
Randy Barnett: I challenge you to disprove
that.
Trevor Burrus: Exactly.
Randy Barnett: So yeah, I mean I had assumed
when I wrote the book that there would be
the chance. This would empower a Tea Party-ish
candidate to become the republican nominee
and that would inform their administration
should they win.
So I had in mind a Rand Paul who I – as
you know, I work for on his presidential campaign
or Ted Cruz who I also know. It would inform
what they would do in the future. It isn’t
how things have worked out. So that’s true.
Now, what …
Aaron Ross Powell: Is there hope?
Randy Barnett: There’s always hope. As I
said on my Twitter feed this morning, that
the upside of the fact that you have two – there’s
no law that says there has to be a lesser
of two evils and if both evils are equal,
then the upside is that whoever wins, the
other evil has been avoided. How is that for
hope?
Trevor Burrus: That seems a little depressing.
It’s a little depressing at the same time.
That we’re both – ruled by both Trump
and Hillary is a good thing. As a team, that
would be the worst evil.
Randy Barnett: Yes, exactly. That’s even
worse. So as long as we have a written constitution
that hasn’t been repealed, there’s always
the hope that it can be resuscitated and revived
and in the words of my last book, restored.
That’s the reason for putting it in writing
in the first place.
But the reason why this book is important
and not withstanding our current political
situation, I urge your listeners to buy it.
Trevor Burrus: So do it. It’s really good.
Randy Barnett: Yeah. I mean of course buying
it is more important than reading it. So first
buy and then if you want to read it, that’s
also good. But the reason why it’s still
important is that I think the only way we
get back to a better country – I shouldn’t
say get back because we never really had this
perfectly. The only way we get to a better
country governed by our original constitution
is to remember our republican heritage.
So a book can only do so much and what this
book attempts to do is provide a republican
narrative that explains what the – what
a republic is, what this constitution was
supposed to do and why that’s a good thing.
Going back to policy, why it’s a good thing.
Therefore it’s something to aspired to.
This book provides that argument and that
argument has been lacking on the right, which
means even when the right has won elections,
they’ve still picked bad judges because
they’ve lacked this understanding. This
is something that – you need to read a book
like this in order to get – and then a republican
narrative can lead to republican politics.
You’re not going to get a republican – small
R, republican politics, unless you’re carrying
around in your head a republican narrative
and that’s what this book is meant to provide.
Trevor Burrus: Now does this mean that judges
and justices should be in the future striking
down Medicare and Medicaid as unconstitutional?
Randy Barnett: Those are all spending power
laws and so that’s a question of what the
spending power is. I don’t talk about that
in this book really very much. I don’t talk
about it in restoring the laws of constitution
very much. The reason is, is because the debate
about the proper scope of the spending power
goes all the way back to the beginning, between
Hamilton and Madison.
I think any debate that really does exist
at the beginning of the country is a debate
in which there really probably are two sides
to that debate.
Trevor Burrus: But aside from the spending
power itself, much of the government is unconstitutional
under your view. So if judges and justices
struck it down –
Randy Barnett: But possibly not that part.
Remember that there’s – it is in the constitutional
amendment that provided for the income tax,
which fuels the federal government and allows
is to effectuate all of these policies and
that’s part of the constitution.
Trevor Burrus: But if a justice is faced with
a decision to strike down the Department of
Education as beyond the commerce clause, which
is a pretty good argument, should they do
it? That’s very disruptive.
Randy Barnett: Look, there is a question of
how you get from here to there and we have
a multi-member court. In reality, we have
a multi-member court. Nine justices and they
get appointed at different times and they
have to reach a consensus. So therefore, a
single judge with a single opinion is not
going to get their way.
The only way that this outcome will happen
is if enough justices are appointed over time
for this to happen and for that to happen,
there’s going to be a – there’s going
to have to be a political consensus that it
should happen.
It isn’t going to – if I could press a
button and make it happen overnight, I would
press that button. But there’s no such button
in our world. The metaphysics of our world
does not allow for button pressing. Therefore
that’s not the way it’s going to go and
there’s no particular reason why individual
programs like Medicare or Social Security
could not be kept going while a court then
says – assuming that these were improperly
decided in the first place, the court then
says, look, that’s a decision that has been
made. We’re not going to revisit the decision
about those programs. But we’re not going
to take the principle that upheld those programs
and apply them in the future.
That’s really what James Madison was saying
when he said that a bank was constitutional
even though he had opposed it as unconstitutional.
He didn’t reject his previous reasoning
as to why the bank was unconstitutional. He
said that was still valid. But the issue of
the bank itself, that had been settled. Banks
are OK.
So Social Security, you could say – a court
can say that has been settled. We’re going
to – we’re not going to undo Social Security.
But we’re not going to take that principle
and allow the government to run riot using
the Holmesian idea that because we’ve made
this exception here, perhaps a wrong one,
we’re going to now use that as a precedent
for everything else we want to do. That’s
the elicit move that can be stopped.
Trevor Burrus: Thanks for listening. If you
enjoy Free Thoughts, please take a moment
to rate us on iTunes. Free Thoughts is produced
by Mark McDaniel and Evan Banks. To learn
more about libertarianism, visit us on the
web at www.libertarianism.org.
