Governor Mitch Daniels and constitutional law professor Randy Barnett discuss what it's like to be a conservative or libertarian on a liberal college campus, the changes in Barnett's political philosophy over time, and his development as a public meaning originalist. They also explore Barnett's interest in the ninth amendment and his theory that "first come rights and then comes government," as well as the idea that sometimes private property and liberty can be in conflict.
Governor Mitch Daniels and constitutional law professor Randy Barnett discuss what it's like to be a conservative or libertarian on a liberal college campus, the changes in Barnett's political philosophy over time, and his development as a public meaning originalist. They also explore Barnett's interest in the ninth amendment and his theory that "first come rights and then comes government," as well as the idea that sometimes private property and liberty can be in conflict.
Intro (00:02):
Welcome to The Future of Liberty, a project of Liberty Fund, hosted by Mitch Daniels.
Mitch Daniels (00:17):
We welcome Randy Barnett, the Hotung Professor of Constitutional Law at Georgetown.
(00:23):
Mr. Barnett, we appreciate you being with us.
Randy Barnett (00:26):
Well, Randy, please, Mitch. It's a pleasure to meet you after all these years. I've seen you in action, and now it's great to be able to talk to you.
Mitch Daniels (00:32):
It's all very mutual. I've seen you in print and in person and I’ve been looking forward to this opportunity for a direct exchange. Let me just start by asking you what it's like to teach at Georgetown University. I actually went there once a long time ago, but is it lonely?
Randy Barnett (00:54):
Surprisingly not. People think I’m sort of the lone right-to-center person... although I do have three right-to-center colleagues. I'm just the one that teaches con law.
Mitch Daniels (01:05):
Three out of?
Randy Barnett (01:06):
About 130.
Mitch Daniels (01:07):
Yeah, so it's a standard ratio on most campuses these days.
Randy Barnett (01:11):
Oh, we’re much more diverse than most campuses these days—they can barely scrape up one. I’m treated very well by my colleagues, and they’re very happy to have me there. Until recently, it meant they didn’t have to hire anybody else like me, which was kind of nice. So no, I’ve had a great time at Georgetown. I really found the place for me after trying other law schools before I got there.
Mitch Daniels (01:40):
Very encouraging. Recently, you've written a memoir, your latest book, and I want to ask you several questions about it. There was an interesting phrase in the early sections. You said when you were a student, you went into a resistance mode, I think that was the term. Are you in resistance mode to Georgetown? Do you recommend that to students who feel that they are somewhat isolated in centrist or right-to-center viewpoints?
Randy Barnett (02:10):
Well, a lot of what my memoir is about are the mistakes that I made growing up or professionally and how to avoid those mistakes. I try to be as candid as I can be about the things I don't advise people to do, and I don't advise people to go into resistance mode. I give an orientation talk to incoming law students at Georgetown every year. It's part of the official orientation. It's called Law School for Libertarians and Conservatives, and it's the most well attended of any of the individual orientation talks. I read a letter that I wrote that's in the book when I wrote home the first week of law school about how I feel like they're going to try to indoctrinate me here, and my job is to resist that at all costs. And then at the end of the letter, it says, "May the best Randy win."
Mitch Daniels (03:00):
Better name the law school so people know who.
Randy Barnett (03:03):
Oh, it was Harvard Law School and it was right in the wake of The Paper Chase. The Paper Chase had just come out a couple years earlier, and it was pretty accurately describing the education that we got. It was a bad mistake, a huge mistake, and I tell the students, "Don't do what I did. If you have principles, if you've come into school with principles that you believe are coming under attack at the school, have faith that you will be able to be true to your principles or possibly even revise them slightly at the margin because they may not be 100% correct, but don't worry about losing yourself because what you're here to do is to get an education."
(03:37):
By going into resistance mode, I tried to figure out why my professors were wrong. But my message is this: even if you’re right and you identify where your professor may be wrong, that doesn’t mean you’ve learned what the professor has to teach you. That’s really why you’re there. You may have discovered a flaw, but what about all the other knowledge? Ideally, you’d want to do a kind of mind meld with your professor and learn all the law they know. So that’s what you should do. Suspend your disbelief, get inside your professor’s head, and—better yet—do this especially when you don’t agree with them, so you can understand how people you disagree with actually think.
Mitch Daniels (04:18):
Does avoiding resistance mode also imply stifling oneself? Many college students today, when queried, say that they are intimidated, they keep quiet about things they disagree with. Is that part of your advice?
Randy Barnett (04:36):
I did it both ways myself. I was quite outspoken the first year, got labeled a libertarian by my classmates and the professors. I felt somewhat marginalized by that. I didn't have any animus, but I felt like they had sort of figured me out.
(04:51):
The second year when we all have sections mixed up again and you kind of have a second start, I was much more circumspect, but I chose quite vocally to ask critical questions of my professors, without telegraphing what my own view was. All of a sudden, I started getting compliments from my classmates about my great interventions in class. I like that better, but, honestly, this is just a matter of personal preference. You're either somebody who loves combat or you're somebody who doesn't. I have to say, when I went into law school, I kind of liked verbal conduct, but law school cured me of that. By the time I was done with law school, I didn't enjoy that interaction as much.
(05:30):
But that's really a matter of taste. If you want to take everybody on, go for it. But if you don't, don't feel guilty about it. It's not your job to correct everybody in your environment.
Mitch Daniels (05:39):
Well, it didn't drill all your combative instincts out because you became a prosecutor early in your legal career and did it for a few years. Talk about that for a minute. And then I want to ask you about some prosecutors today.
Randy Barnett (05:53):
Well, I was an assistant state's attorney in the Cook County State's Attorney's Office. I went to law school to become a criminal lawyer. As I explain in A Life for Liberty, I became interested in being a lawyer. I resolved to be a lawyer when a television show came on when I was 10 years old, called The Defenders, which no one really remembers because it never went into reruns because of whatever IP rights they had a problem with. It was a father-son criminal defense team, starring E.G. Marshall and Robert Reed and was set in New York, filmed on location, produced by David Susskind. It was very gritty and realistic. But unlike Perry Mason, which we watched in our family, which was about solving murders, this was about being a lawyer and it was about representing guilty people as well as not guilty people. I saw that show and I said, "I want to be a lawyer. I want to be a criminal lawyer."
(06:40):
And then when I got to law school and I got involved in the student prosecutor's program that Harvard had during that time, I basically decided that, between the two, I'd rather be a criminal prosecutor than a defense attorney. I had nothing against being a defense attorney. I just thought that being a prosecutor for a number of reasons was a better fit for me. Here's another piece of advice I have for those who may be going to law school and may be wanting to do what I did. I had to resist the pressure of my colleagues that I'd be wasting my degree if instead of getting a big law firm job after graduating from Harvard, I went back and became a county prosecutor.
(07:19):
When I told my classmates that I wanted to be a Cook County State's attorney, they gave me the benefit of the doubt and thought, for some reason, maybe I wanted to work for the Attorney General of Illinois. So I had to be clear at that point, "Oh, I want to be a county prosecutor. I want to prosecute murders, rapes, armed robberies, real crime," and that's, by sticking to my guns, is what I got to do. The lesson I learned is that the world of criminal justice in Chicago was actually better than television. They couldn't show you on television all the interesting good stuff until maybe really recently, and so it was a fantastically rewarding four years.
Mitch Daniels (07:56):
I'm not surprised to hear that. I can think of analogs. Some of the best journalists I know look back on their days in some small newspaper where they had to cover a little of everything and really learn the trade from the ground up, and that sounds like the experience you may have had. Many of the chapters are labeled Becoming a Lawyer. Becoming a Libertarian, what led to that? What did it mean to you then? Does it mean anything different today?
Randy Barnett (08:24):
Interesting. Well, I started out as a political conservative, a William F. Buckley conservative. National Review was about the only thing you could get that you could read. Because my father was a political conservative and his father was, which was a little unusual for Jews at the time, but my father was quite an ardent conservative. When I was 12 years old, I got up in front of my entire grade school and junior high school student body and debated on behalf of Barry Goldwater against Lyndon Johnson in 1964. So that's where I was coming from. Extremism in defense of liberty is no vice. Moderation and pursuit of justice is no virtue. In your heart, you know it's right.
Mitch Daniels (09:10):
Yeah.
Randy Barnett (09:10):
At any rate, that's where I started. I came across libertarianism when I was in college. I had a classmate who was active in Young Americans for Freedom, Jeanette DeWyze, and she's somebody who really helped me through my philosophy classes too as a fellow student. She went off to some YAF stuff and found out about libertarianism and came back and wanted to tell me about it, and I told her I wasn't interested.
Mitch Daniels (09:36):
So what were the big distinctions between the philosophy you carried into that stage and the libertarianism that you emerged with?
Randy Barnett (09:45):
Well, before I get there, just let me say, I turned her away and told her, "I didn't want to hear about it," and the reason was the name sounded funny to me, and that was it. But eventually, when we lived together at a philosophy and religion residential college, she brought in a speaker named John Cody, who was a junior classics professor there, and he gave a talk on libertarianism. In my head, I'm listening to this and I'm thinking, "Well, that's what I've been looking for. That's rational conservatism. That's a conservatism based on philosophical argument," which all I've been hearing up till now is sort of policy, nothing about principles.
(10:20):
Conservatives didn't really have a theory. They still don't frankly have a theory, they have a bunch of inclinations, and libertarianism provided a theory of liberty, and I was really a libertarian all along. As I say in the book, my first published article when I was 10 years old in my grade school newspaper was about liberty and how we don't value liberty the way our Founding Fathers did. This was a little 10-line essay I have in the book. So liberty was really always what I was interested in.
Mitch Daniels (10:51):
So the label found you, not vice versa.
Randy Barnett (10:53):
Exactly. That was my junior year. By my senior year, I was teaching a student-credit seminar at Northwestern on libertarianism. We assigned, well, I assigned Murray Rothbard and David Friedman, along with Robert Heinlein and a couple of more radical books on individualist anarchism. So I went all in on libertarianism. When I got to law school, I met Murray Rothbard, Leonard Liggio, and the New York libertarians, and I became quite active with them. By my second semester of law school, they had invited me onto the board of directors of the Center for Libertarian Studies. I spent a lot of time in New York instead of studying. I wasn’t the world’s greatest law student.
Mitch Daniels (11:37):
Well, I'd say you were studying.
Randy Barnett (11:39):
Just in a non-scholastic way, right. If you want to know the difference, it was a principled approach to liberty where you followed the reasoning wherever it may lead, which went beyond what many conservatives might have thought was appropriate.
Mitch Daniels (11:55):
The chapter that follows that one describes you becoming an originalist. What was that discovery like? Did it flow naturally from the libertarianism you had come to embrace, or were there differences of dimension or doctrine?
Randy Barnett (12:19):
I believe I can say without fear of contradiction, I'm the only person in America that became an originalist because I read Lysander Spooner. Now, Lysander Spooner, I don't know if you know who Lysander Spooner was, but he was a very radical anarchist libertarian or, at last, eventually that's what he became. I read the only essay I knew that he'd written at the time in law school called No Treason, The Constitution of No Authority, which argued that the US Constitution was never agreed to properly and no one consented to it, and it was a very radical position, which I couldn't disprove. As far as I was concerned, it was probably right, and that's what we knew about Lysander Spooner at the time.
(12:57):
While I was teaching at Boston University, I came across a footnote in an anthology that referenced something written by Lysander Spooner called The Unconstitutionality of Slavery. It was published in 1845, and I thought, first of all, I didn’t know Spooner had written anything else. Second, what could he possibly have said in 1845 that argued against the constitutionality of slavery before the Thirteenth Amendment? I asked the library to find it for me, and it turned out to be a book, part of a six-volume collection of Lysander Spooner’s works. Who knew he had written that much? In it, he made an originalist argument against a pro-slavery reading of the Constitution. What made his argument different from the originalism others were discussing at the time was that it focused exclusively on the public meaning of the words the founders adopted, not their hidden intentions. It marked a move from farmers' intent to public-meaning originalism.
(13:56):
At that point, in the conservative legal movement, everybody was concerned. Robert Bork, for example, was concerned with framer's intent. I was an anti-originalist at that point. I thought framer's intent was impractical, and I accepted the critiques that have been offered by progressives and non-originalists. But when I saw this thing by Spooner, I thought, "Hey, this is a theory of originalism I could get behind and maybe do something with," so I adopted it and I worked it up. Unbeknownst to me, Antonin Scalia was also urging people to abandon the idea of framer's intent in favor of public meaning. Having him on my side, you can imagine, gave me more credibility as a young law professor. I became an originalist because I was persuaded that Lysander Spooner was right about how we should read the Constitution.
Mitch Daniels (14:42):
So how do you array today's court on this spectrum of originalism?
Randy Barnett (14:48):
Well, we have a majority of justices who are conservatives. I believe that's true. We have five justices who identify as originalists and, of those who identify as originalists, they tend to identify as public meaning originalists. Justice Kavanaugh is quite adamant that he's a public meaning originalist and not an intent originalist. But they don't really do originalism very often, and they tend to avoid it where they can, and there's many ways to avoid it if you want to. Basically, they like to rely on stare decisis or precedent.
(15:30):
There are affirmative arguments to be made, that I do not entirely agree with, that it's part of the original meaning that there should be stare decisis, and so that's okay. But it essentially means that we don't get back and we don't even move in the direction of restoring the original meaning of the Constitution, or what I called in one of my books “Restoring the Lost Constitution,” that has the clauses there that we don't use anymore. I think it's good to have a conservative court. I do think they do what sometimes you might consider to be off-the-books originalism, where they have originalism in their head and their preconception about what originalism requires does influence at the margin what they would do, sort of the direction they take, but we could use a more full-throated originalist court in my opinion.
Mitch Daniels (16:19):
Well, you mentioned stare decisis. I wanted to ask you a related question. You've written, and I think provocatively, about judicial restraint and where it goes too far and places where it's maybe not appropriate. Talk about that a little bit. Many conservatives, in the way you used the term, adhere pretty rigorously to a doctrine of deference and restraint, but you argued that's a mistake.
Randy Barnett (16:52):
Yeah. When I first got involved in the conservative legal movement, which was before I became an originalist, I was very much at the margins of the movement, especially in my arguments against restraint. This goes back to my Goldwater days and the idea that restraint in pursuit of constitutionalism is no virtue. So I was pretty far outside the mainstream. The conservative legal movement has tried to ride two horses, two separate horses. One is the horse of judicial restraint, which they borrowed from the progressives. Before World War II, progressives argued strongly for restraint, until they later decided to become more activist. The other horse is originalism. So the movement has been riding these two horses at once. When I entered the movement, originalism was the weaker horse, and restraint was the stronger one.
(17:47):
But as time has gone by, that situation has started to reverse itself. I think the critical inflection point that caused the movement to sort of flip, so, "It's no longer this. It's this," and that was the Affordable Care Act challenge. Because as you remember, in the Affordable Care Act Challenge, we argued that the individual insurance mandate was outside the constitutional powers of Congress under the Commerce Clause and under the Necessary and Proper Clause, and we got five votes in agreement with us. We had five votes for the originalist outcome in that case.
(18:22):
Normally, as you know, if you win on the law, you tend to win the case. And if you've lost the case, it's because you lost on the law. Well, this is one of the only times we actually got five votes for our view of the Constitution and that the individual insurance mandate was unconstitutional, but we lost the fifth vote, Chief Justice Roberts, who's a conservative, but not an originalist. We lost the fifth vote because he was exercising judicial restraint, and he said so. He said that's his duty. He has a duty, he said, to defer to the statute, if there can be any meaning that might be fairly possibly attributed to the statute that would be constitutional, even if it was not the natural reading of the statute.
(19:08):
When people in the conservative legal movement had spent two years thinking, ‘We might have this,’ and then, after oral argument, everyone thought we did have it, he pulled the rug out from under them by saying, ‘Yes, you’re right on the law, but I’m going to exercise restraint.’ That’s when restraint went down and originalism went up. By the time of the Trump administration, when the White House counsel was interviewing prospective judicial nominees, I think the objective shifted. What had once been ‘No more Souters’ became, in a sense, ‘No more Robertses.’ The idea was to ask every nominee something like, ‘When have you stood up for a principle against the crowd?’ They wanted to know that a nominee would be willing to do exactly that.
(19:57):
I think that the idea that the Constitution should be enforced by the judiciary started to have the upper hand in the conservative legal movement. So I don't really think I'm in the minority anymore.
Mitch Daniels (20:08):
You take any encouragement from some recent cases in which the court and some lower courts following them have been reigning in administrative actions. You mentioned the progressives, ironically, once favored deference. Now, it's some of their encroachments on liberty, as many of us would see them, which have been challenged by the courts, the West Virginia case. The pending Chevron case may give us another example. Do you see a worm turning here in a favorable way?
Randy Barnett (20:47):
Look, we started off on the wrong foot when I began talking about the Court, because you asked me how originalist it was. I’m very grateful that we have the Court we have. I think that if we didn’t, we’d be in big trouble. That’s why, in 2016, when I was confident Hillary Clinton would win the election and Donald Trump would lose, I was prepared to leave the teaching and practice of constitutional law entirely. With the filling of Justice Scalia’s seat by Merrick Garland, who was my classmate at Harvard and in my section at Harvard Law School, I felt it would be game over for us. At my age, it no longer served a useful purpose to spend my remaining years battling uphill. It was only because Donald Trump pulled out an unexpected victory. That was the only election, Mitch, that I didn’t stay up to watch the results of, because I had to teach early the next day.
Mitch Daniels (21:44):
You knew what was going to happen.
Randy Barnett (21:45):
I just didn't want to see it all. He had early leads in some states, and I just didn't want to stay up till 3:00 in the morning when they called it for Hillary, because I really believed that that was going to be the end of my constitutional law career, and so it wasn't. I'm very grateful to have the court we have because I think we live to fight another day, and many of its rulings do give me encouragement. I would just like to see more of them. I just think we have not as stalwart a court sometimes as I would like to see them be, but they are way better than what we were going to have when my constitutional life was passing me from before my eyes.
Mitch Daniels (22:22):
Looking at things from an originalist perspective, you’re one of the few people I’ve noticed who has written recently about the Ninth Amendment, and I’d like to hear you talk about it a bit. Is it ever going to be more than an artifact?
Randy Barnett (22:39):
The book talks about my exposure to the Ninth Amendment. It actually starts in law school. When I read the Ninth Amendment as a law student, I thought, "Hey, this is great. I love this." And then I turned the page of the casebook and found out we were not supposed to think it means anything and we're not supposed to do anything about it, and that was one of my many experiences as a law student which caused me to give up on the Constitution. I basically averted Lysander Spooner's first position on the Constitution. I got dragged back in by the Federal Society, which is a whole different story. But the first time I did a Federal Society talk at Stanford for the 5th Annual Student Symposium, it was on the First Amendment. I was asked to be on a panel on freedom of association, which you may know is not mentioned in the Constitution.
(23:24):
So I was defending freedom of association on this panel sitting next to Frank Easterbrook from the Seventh Circuit. I said, "Now, I know what you're thinking. What gives a lifetime appointed judge the power to find this right that's not in the Constitution?" And then I read the words of the Ninth Amendment, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." I got a nice ovation, and the rest of the panel was debating me about the Ninth Amendment, but at the time I didn't know anything about the Ninth Amendment other than what it said. So I had to decide whether to study it.
(24:05):
I knew it was a disreputable topic amongst respectable law professors and lawyers, but I thought, "Well, they haven't repealed it yet. I've got tenure now. I should be able to talk about what they haven't repealed," and so I started doing work. I had a research assistant, sent him to the library, I said, "Send me everything that's been written about the Ninth Amendment," and he came back with a stack of photocopies, it was about this tall, and a little teeny book by Bennett Patterson called The Forgotten Ninth Amendment. I looked at that stack and I said, "If I read everything that's in that pile, that'll make me the nation's leading authority on the Ninth Amendment."
Mitch Daniels (24:43):
Not a lot of competition for that.
Randy Barnett (24:45):
No. So that’s what happened. I read everything there was. I became the nation’s leading authority on the Ninth Amendment. Some people even nicknamed me ‘Mr. Ninth Amendment.’ I do think, quite seriously, that it is one of the most important sentences in the Constitution because it reminds us of the underlying theory of our Constitution, which was made explicit in the Declaration of Independence. That theory is that first comes rights, and then comes government. The rights referred to in the Ninth Amendment, the ones retained by the people, are rights people already had and continue to keep. That marks a fundamental divide within the conservative legal movement. Do you believe that first comes rights, and then comes government? Or do you believe that first comes government, which is the Lockean position? Or do you hold the Hobbesian view, where government comes first and it is government that gives us rights?
(25:44):
Many conservatives are closeted Hobbesians. They don’t want to admit it, but that’s what they are. Of course, many conservatives are actually Lockeans. I’m a Lockean when it comes to these questions. The Ninth Amendment is our textual affirmation that this is the system of government we’re supposed to have.
Mitch Daniels (26:02):
Well, maybe one day it'll be given effect as opposed to just the encouragement that comes from reading those words.
Randy Barnett (26:11):
Well, going back to our original discussion of the justices, we may have six conservative justices, but we do not have a majority who'd be willing to take the Ninth Amendment seriously.
Mitch Daniels (26:20):
Well, then let's move on to the Tenth. Those of us who are fans of federalism and, in some cases, former practitioners are encouraged to see more states asserting, or at least trying to assert, their own prerogatives versus the federal government. Is there a hope for reviving or breathing life into the Tenth Amendment? Can you imagine bringing a case that reverses what's been a long time trend in terms of centralization of power?
Randy Barnett (26:57):
Well, Tenth Amendment cases do win. They have a better track record than Ninth Amendment cases. When it comes to the Tenth Amendment, though, we’re living in a world of second best, and let me explain why. When Madison first proposed amendments to the Constitution, in a very interesting speech he gave to Congress, he did so over the reluctance of other Federalists, who did not want to amend the Constitution right away. He first proposed what became the precursor to the Ninth Amendment, which he said was very important because it rebutted one of the principal arguments he had heard against having a Bill of Rights. That argument was that if you listed some rights, you wouldn’t be able to list them all. Later in the same speech, when he turned to the precursor of the Tenth Amendment, he said, in effect, ‘This doesn’t do any harm. It’s already pretty obvious from the structure, but it doesn’t hurt to put it in there.’ In other words, he thought the Ninth Amendment was extremely important, while the Tenth Amendment was less so, almost superfluous. But why did he think that?
(27:53):
He thought that because this was supposed to be a government of limited and enumerated powers, that's the Tenth Amendment. The Tenth Amendment is holding Congress to its limited and enumerated powers. Well, we haven't been doing that since the New Deal. So we're in this world of second best. Well, what do you do in a world in which the Supreme Court has basically said, "Congress can do not everything it wants, but almost everything it wants?” What happens to the states if Congress has that kind of power? What happens to the states is, well, maybe they deserve some special treatment. What goes by the Tenth Amendment, jurisprudence are really giving special treatment to states in the sea of overwhelming congressional power. We essentially treat states the way we treat persons with individual rights. We treat states with their own sovereignty type rights to shield them from this overwhelming federal power.
(28:49):
The first-best solution would be to return to a system of truly enumerated powers, in which case the Tenth Amendment would be unnecessary. In the second-best world we actually live in, the only way to keep federalism alive is by giving states certain privileges within the system. That was Chief Justice Rehnquist’s agenda in what came to be known as the ‘new federalism.’ He did not propose rolling back the New Deal. His position was, ‘This far, but no farther.’ The New Deal marked the high-water point, and you could not go beyond it without a judicially administrable limit. That was his single contribution to conservative and constitutional jurisprudence. In the second-best world we inhabit, the Tenth Amendment plays a role by saying, in effect, ‘We want to preserve a federalism of dual sovereignties, so we’re going to have to look out especially for the states.’ In a system where Congress was held to its proper, enumerated powers, we wouldn’t need to protect the states in that way.
Mitch Daniels (29:51):
A couple months ago, the state of Utah passed, as far as I know, first of its kind statute, but one that may be emulated elsewhere. I'd be interested in your view on it. The Sovereignty Act or some such label, as I read it, says that by vote, by super majority vote of its legislature, it can order its own officers, the state's officers, not to enforce federal dictates or mandates. Is that constitutional? And if it is, is it one way to press back against the Federal Leviathan?
Randy Barnett (30:35):
It is constitutional under current doctrine. There’s a famous case called Printz, which involved whether the federal government could, while waiting for an instant background check system to be developed, compel local sheriffs to conduct background checks on everyone applying to purchase a gun. Some of the sheriffs objected. In an opinion written by Justice Scalia, the Court held that commandeering the states was not a necessary and proper exercise of Congress’s commerce power because it was improper. In fact, the Printz opinion was one of the few authorities we relied on in the Affordable Care Act challenge to argue that the individual insurance mandate was improper. There were very few precedents drawing a distinction between what is ‘necessary’ and what is ‘proper,’ and Printz was the principal one. Justice Scalia authored that opinion and was still on the Court at the time, so I felt fairly confident about his position on the issue.
(31:35):
It established the principle, even though there are some originalists who argue that maybe the principle is a little exaggerated, but the principle that state officials cannot be commandeered by the federal government to enforce federal law. I think that's still good law. I'm sure it's good law. I'm sure the majority of the court would hold that it's good law. I think what Utah did, I haven't read the bill and maybe there's something in it that I wouldn't agree with constitutionally. But just based on the way you describe it, I think that's perfectly fine. It's the reason why we have sanctuary cities. Again, it's the anti-commandeering doctrine that conservatives have been for.
Mitch Daniels (32:17):
So you support the idea or you accept the idea of sanctuary cities, whether or not it's good policy, you think constitutionally and legally, and in terms of our liberties, it's appropriate.
Randy Barnett (32:28):
As long as there’s no active aiding and abetting of illegality, and all that’s happening is a withdrawal from cooperation, I think that’s perfectly acceptable. Sometimes, though, sanctuary cities are in violation of state law. When that happens, states can step in. State legislatures can address sanctuary cities, but it’s not something the federal government can necessarily do. Whether I think it’s a good idea or not, I generally don’t think it is, at least in many respects. That’s why I don’t see the Utah law as a kind of cure-all for the situation we’re in. I do think that if we were to get federal gun control laws of a certain kind that were truly unconstitutional, it would be entirely predictable that many state authorities, including sheriffs and others, would refuse to help enforce federal gun laws they believed to be unconstitutional.
Mitch Daniels (33:29):
We concentrate rightly on government infringements or direct government infringements of liberty. But over recent years, threats have emerged even from the private sector. I'm thinking of large corporations who have either, of their own volition or perhaps under pressure or feeling pressure from external or internal employees, for instance, have trespassed some belief on the individual freedoms and of people within the corporation or those around it. What about that?
Randy Barnett (34:12):
You’re asking me something that actually goes to what I’m thinking about for my next book, which involves a rethinking of libertarian first principles. I came up through the movement as a Rothbardian libertarian and became more Hayekian by the time I was a law professor. These days, I think libertarians need to think more deeply about individual liberty than we have in the past. Even acknowledging, as I argue in The Structure of Liberty, the absolute imperative of private property, there may come a point where the institution of property begins to run up against the idea of individual freedom.
(35:02):
This was something I came to through my study of anti-slavery constitutionalism, which culminated in my book, The Original Meaning of the Fourteenth Amendment. I was very pleased to have it published by Harvard University Press, which checked off a bucket-list item for me. I studied how Republicans in the wake of the Civil War were deeply troubled by the reimposition of Black Codes and other restrictions on African Americans. They believed that once they eliminated government coercion in the form of government-authorized slavery by passing the Thirteenth Amendment, the battle had been won and Black Americans would be free. Much to their surprise, and to the surprise of many abolitionists, abolishing slavery was not enough. What emerged in its place was a regime of apartheid, enforced both by private property owners and by violence against anyone who resisted segregation and the restriction of African American rights.
(36:10):
The Republicans were confronting a combination of private property, coercion, and state action, particularly at the local level, along with a serious problem of state inaction. Law enforcement authorities often simply refused to enforce the law equally. This was the situation they faced under President Andrew Johnson, who was not very helpful. Eventually, they responded by passing the Fourteenth Amendment. First, they passed the Civil Rights Act of 1866. When its constitutionality was called into question, they then adopted the Fourteenth Amendment to secure its constitutional foundation. After that, they passed the Civil Rights Act of 1875, which banned discrimination in places of public accommodation, common carriers, and places of public amusement. These measures rested on a theory of citizenship that held that citizens possessed a constitutionally protected liberty to access public places without arbitrary discrimination. That liberty was understood as a privilege or immunity of citizenship. The Supreme Court ultimately invalidated that law.
(37:15):
In the 1880s, in a set of decisions known as the Civil Rights Cases, the Supreme Court held that the law was unconstitutional because it went beyond limiting state power and instead regulated private activity. I think we need to think much harder about when something is truly private and when it is effectively public, and about how non-governmental actors operating in the public sphere can affect individual liberty and personal freedom just as much as the government can. In other words, I think libertarians and conservatives are in the same boat on this issue. Conservatives, by the way, are no better than libertarians here. We’re all very good at focusing on socialism and communism, central planning, and the rest. But we need to be much more concerned with fascism, because fascism leaves ownership formally in private hands while the government remains present and much of the work is carried out by private enterprises. We need to have a theory.
Mitch Daniels (38:16):
Often under pressure from the government. We’re seeing very current debates about tech companies either acting on their own initiative or being directly coerced by the government to do things the government itself would be forbidden to do.
Randy Barnett (38:36):
Absolutely. If there’s a genuine threat from the government, libertarians and conservatives have no trouble objecting to it. They don’t have a theoretical problem doing so. But when corporations become large enough, really large through mergers and other means, they don’t necessarily need government pressure. At a certain point, they can begin to rule us without the formal instruments of government. We used to debate a hypothetical like this back when I was a law student at the Libertarian Scholars Conferences. I don’t know why it’s stuck with me, but the question was, and this will date the hypothetical, ‘What would we say if New York State ended up being owned by the Rockefeller family, and Massachusetts by the Kennedy family, and they simply ruled those places as private property? Would libertarians really have no problem with that?’ The point of the hypothetical was that, yes, we would have a problem. We would have replicated the problems of the state in private hands. This is really hard.
Mitch Daniels (39:41):
It may be dated, but it doesn't sound so farfetched anymore.
Randy Barnett (39:44):
Right, it doesn’t. But I want to emphasize that this is a really hard problem. It’s not an easy one. It’s easy to point to it and say, ‘That’s a problem,’ but figuring out the answer is hard. Throughout my career as a scholar, I’ve tried to work out what I think by writing. I write and research primarily to figure out my own views, and only secondarily to influence anyone else. I have to put things in writing; if I don’t, I can’t really clarify what I think. And I haven’t tackled this yet.
(40:14):
I’ve been doing a lot of reading, a lot of thinking, and some fairly off-the-cuff talking. But I haven't done the hard work, and I think it’s going to be hard work. My next project is to figure out at what point individual liberty needs protection from institutions that are non-governmental but effectively public. That’s different from purely private, non-governmental institutions like our homes, our families, or our churches. It’s also different from what we’re confronting when it comes to large economic forces.
Mitch Daniels (40:49):
Well, some of us who are wrestling with this question hope you’ll get to work on it very promptly. Let’s work our way back to where we started, which is the campus. There’s no subject more topical right now than debates over free speech and its limits on campus, and, especially fitting given the chance to talk with you, the subject around which much of that debate is unfolding. That subject is Israel, Palestine, the atrocities of last October, and the Israeli response. How does all of this look to a scholar like you?
Randy Barnett (41:32):
Well, diversity was first asserted as a value in part as a way of keeping Jews out of Columbia and other Ivy League schools. That’s why they began recruiting from rural areas, where you weren’t likely to find many Jews. The idea was, ‘We need geographical diversity, because Jews are in New York. If we recruit from Kansas, the people we admit won’t be Jewish.’ Jews have been on a kind of holiday in the United States for the last several decades, a holiday from history that is now reasserting itself. I’m not surprised that this is happening on campus. And I don’t think my father would have been surprised either, because this is very much what happened in Germany as well.
(42:13):
There was a massive Hitler Youth movement centered in universities, and professors either fell in line or were leaders of it themselves. Jewish professors were expelled. Universities have long been hotbeds for movements like this. Today, our universities, shaped by a left-wing catechism, are especially susceptible. Everything is evaluated through the lens of who is oppressed and who is the oppressor, and Jews are now cast as oppressors rather than as a historically oppressed group. This way of thinking has been present on campus for at least twenty years. The real news is that it has now spread beyond the campus. As long as it was confined there, people could tell themselves, ‘They’ll grow out of it.’ But as you know, Mitch, they didn’t grow out of it. They went on to work for companies, and now they’re telling corporate boards what they want those boards to do.
(43:18):
It’s broken out of the universities, where it was being formulated in law schools even when I was there, and it has now metastasized. This is a very dangerous time. But we will prevail. We always do. Instead of studying only the history of all the bad things that happened to Jews, we should also study the history of what happened to those who oppressed Jews. They did not fare as well as we did. Every single one of them eventually faced their reckoning.
Mitch Daniels (43:51):
Well, you've anticipated... In a way, my final question, we're giving this series the title The Future of Liberty, so I'm curious to ask you, given all the threats we've just discussed, are you still an optimist? Your last answer makes it sound as though you are.
Randy Barnett (44:09):
I think I’m a glass-half-full kind of person. Many conservatives are conservatives precisely because they’re glass-half-empty people. ‘Optimist’ might be too strong, but I am hopeful. I haven’t given up hope, and I haven’t given up the fight. My kids haven’t either. One thing I know I’ve always believed is this: liberty can never be entirely won, but it can be entirely lost. Our obligation isn’t to achieve some ultimate victory, because that will never happen. It’s simply to keep the flame alive and pass it on to the next generation. And if you look at it that way, that goal feels achievable. There are many reasons to think that the conservative movement in this country, with which I’m generally aligned as a libertarian, is more robust in many ways than it used to be. And I actually think part of the appeal of Donald Trump for many people reflects a populist impulse that has a lot of upside.
(45:26):
But the bottom line is we haven't lost, and therefore we can still win. At the very minimum, we can put up a really good fight.
Mitch Daniels (45:41):
Well, Randy Barnett, very few people have put up a better fight for a longer time than you have. We're delighted that you're still in the arena, and we look forward to the next book as we recommend the current book, which is called A Life for Liberty: The Making of An American Originalist. Thank you very much for joining us.
Randy Barnett (45:58):
Thank you.
Outro (46:00):
The Future of Liberty has been brought to you by Liberty Fund, a private educational foundation dedicated to encouraging discussions of the ideal of a society of free and responsible individuals.