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.
Introduction
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 the Georgetown. Mr. Barnett, we appreciate your being with us.
Randy Barnett (00:26):
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 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 once went there long time ago, but is it lonely?
Randy Barnett (00:54):
Surprisingly not. People think being sort of the lone right of center person, although I do have three right of center colleagues, I'm just the one that teaches Con[stitutional] Law
Mitch Daniels (01:05):
Three out of?
Randy Barnett (01:06):
About 130.
Mitch Daniels (01:08):
Yeah, so it's the 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, but I am treated very well by my colleagues. They're very happy to have me there. Until recently, it meant they didn't have to hire anybody else like me and that was kind of nice. So no, it's really been a great time I've had at Georgetown and I really found the place for me after trying other law schools before I got there.
Mitch Daniels (01:40):
Very encouraging. You've recently written a memoir, your latest book, and I want to ask you several questions about it, but there was an interesting phrase in early sections. [Editor’s note: Barnett’s new book is A Life for Liberty: The Making of an American Originalist] You said when you were a student you went into resistance mode. I think that was the term. Are you in resistance mode to Georgetown and do you recommend that to students who feel that they are somewhat isolated in centrist or right of center viewpoints?
Randy Barnett (02:10):
Well, a lot of what my memoir is about are about the mistakes that I made growing up or professionally and how to avoid those mistakes. So 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. And 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. And it was better.
Mitch Daniels (03:00):
Name the law school so people know who.
Randy Barnett (03:03):
Oh, it was Harvard Law School. 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. And it was a bad mistake. It was 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 a hundred percent correct, but don't worry about losing yourself because what you're there to do is to get an education. And by going into resistance mode, what I did is I tried to figure out why my professors were wrong.
And my message is that even if you're right and you identify why your professor may or may not be wrong, that doesn't mean you've learned what the professor has to teach you. That's really what you're there for. And so you may have discovered the flaw, but then what about all the other knowledge? If you had your way, you would like to do sort of a mind meld with your professor and learn all the law they know. So that's what you should do. You should suspend your disbelief, get inside the head of your professor and even better if you don't agree with them, so you understand how the people you don't agree with think.
Mitch Daniels (04:17):
Does avoiding resistance mode also imply stifling oneself? So 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, professors. I felt somewhat marginalized by that. I didn't have any animus, but I felt like they had sort of figured me out. The second year when all the 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, which without telegraphing what my own view was. All of a sudden, I started getting compliments from my classmates about my grade 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. And I have to say when I went into law school, I kind of like verbal conduct, but law school cured me of that. And by the time I was done with law school, I don't enjoy that interaction as much. 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 a minute, and then I want to ask you about some prosecutors today.
Randy Barnett (05:52):
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. I want, as I explained in A Life for Liberty, I became interested in being a lawyer. I evolved 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 Suskin. 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. And I saw that show and I said, I want to be a lawyer.
I want to be a criminal lawyer. And then when I got to law school and I got involved in the student prosecutor's program that Harvard at that time had, 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. But I had to resist. And here's another piece of advice I have for those who may be going to law school and maybe 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. 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, I want to be a county prosecutor. I want to prosecute murders, rapes, armed robberies, real crime, and by sticking to my guns is what I got to do. And 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 what the experience you may have had, many of the chapters are labeled becoming this and that, 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. And 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 and in your heart, right? So at any rate, that's where I started and I came across libertarianism when I was in college. I had a classmate who was active in Young Americans for Freedom, Jeanette Wise [?], and she's somebody who really helped me through my philosophy classes too as a fellow student. And she started, 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 to, 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. And in my head, I'm listening to this and I'm thinking, well, that's what I've been looking for. That's a 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. 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, which is, 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 (10:52):
Exactly, yeah. And that was my junior year. By my senior year I was teaching a student credited seminar at Northwestern on libertarianism and we assigned Murray Rothbard and David Friedman and I assigned him and Robert Heinlein and a couple of more radical books, which are about individual Islamism. So I became all in to libertarianism. And then when I got to law school, I got to meet Murray Rothbard and Leonard Liggio and all the New York libertarians and became quite active with them. And by the time I was a second semester law student, they'd invited me on the board of directors for the Center for Libertarian Studies. And so I spent a lot of time in New York instead of studying. And so I wasn't the world's greatest law student.
Mitch Daniels (11:37):
Well, I'd say you were studying just in a non-scholastic way.
Randy Barnett (11:40):
So if you had to know the difference is 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. So what was that discovery like and did it flow naturally from the libertarianism you had come to embrace or did it, were there differences of dimension or doctrine?
Randy Barnett (12:18):
I'm the only person 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 eventually that's what he became. And 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 consents 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 anybody knew about Lysander Spooner at the time. But while I was teaching at Boston University, I ran across a footnote in an anthology to something written by Lysander Spooner called “The Unconstitutionality of Slavery.”
And it was published in 1845. And I thought, first of all, I didn't know Spooner wrote anything else. Secondly, what could he possibly have said in 1845 that would've argued against the constitutionality of slavery before the 13th Amendment? So I had the library find this for me and it turns out it was a book and it was part of a six volume collective works of Lysander Spooner who knew he wrote that much in it. He made an originalist argument against a pro-slavery reading of the Constitution. But what made his originalist argument different than originalism that other people were talking about at the time is that it was focused exclusively on the public meaning of the words the founders adopted, not their hidden intentions. So it was a movement from framer's intent to public meaning originalism. And at that point in the conservative legal movement, everybody was concerned.
Robert Bork, for example, was concerned with framer's intent and I was an anti-originalist at that point. I thought framer's intent was impractical and I accepted the critiques of that 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. And so I adopted it and I worked it up. And unbeknownst to me, Antonin Scalia was also urging people to abandon the idea of framer's intent in favor of public meaning. And having him on my side, you can imagine, gave me more credibility as a young law professor. And so that's how I became an originalist because I was persuaded that Lysanders 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, and we have probably, we have five justices who identify as originalists and of those who identify as originalists, they tend to identify as public meaning originalists. Justice [Brett] 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, and 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. And so 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. There's many conservatives in the way you use the term are adhered pretty rigorously to a doctrine of deference and restraint, but you've argued that's a mistake or…
Randy Barnett (16:52):
Yeah, and when I first got into the conservative legal movement, which I did prior to becoming an originalist, I was quite at the margins of the movement and especially in argument against restraint. I mean this goes back to my Goldwater days. Restraint in pursuit of constitutionalism is no virtue. And so I was pretty much outside the mainstream. The conservative legal movement has tried to ride two horses, two separate horses. One is the restraint, the judicial restraint horse, and they got that from the progressives. This was something that progressives argued for before World War II until they decided to become more activist, but they were really big on restraint and the other originalism, there's these two horses that they've been riding. When I got into the movement, originalism was like the weaker horse and restraint was the stronger horse. But as time has gone by, that situation has started to reverse itself and 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 a 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 originalist votes, five votes for the originalist outcome in that case. And 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, I don't know of where 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 [John] Roberts, who is 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.
And when people in the conservative legal movement who for two years had been thinking we might have this thing and after oral argument everybody thought we did have this thing and he pulls the rug out from under it after saying, yeah, you're right on the law, but I'm going to exercise restraint. That's when restraint went down and originalism went up to the point where during the Trump administration when White House counsel was interviewing prospective nominees to the court, I think the objective which had previously been no more Souters, became no more Roberts in that sense and essentially wanting to ask every nominee just when have you stood up for a principle against the crowd? They wanted to know that somebody would do that. And 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 and now it's some of their encroachments on liberty as many of us would see 'em, 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 or
Randy Barnett (20:47):
Look, we started off on the wrong foot with me talking about the court because you asked me how originalist they were. I'm very grateful that we have the court we have because I think if we didn't have the court we have, we'd be in big trouble, which is the reason why I believed in 2016, since I was confident that Hillary Clinton was going to win that election and Donald Trump was going to lose. I was prepared to leave the teaching and practice of constitutional law entirely because with the filling of the [Antonin] Scalia seat by Merrick Garland who was my classmate at Harvard in my section at Harvard Law School, I felt that it would be game over for us. And at my age, it no longer served a useful purpose to play out my ears battling that hill. And it was only because Donald Trump pulled it out unexpected.
That's the only election, Mitch, that I didn't stay up to watch the results of because I had to teach early the next day and I knew it was going to happen. I just didn't want to see it all. I mean even he had early leads in some states and I just didn't want to stay up until three 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 history was, when my constitutional life was passing me before my eyes
Mitch Daniels (22:22):
Looking to original, things Original. You're one of the few people who has written anytime recently that I've noticed about the ninth Amendment, and I'd like to hear you talk about it a little. Is it going to be at some point 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 case book 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 reverted to Lysander Spooner's position, his first position on the Constitution. And I got dragged back in by the Federalist Society, which is a whole different story. But the first time I did a Federal Society talk at Stanford for the fifth annual Student symposium, I was asked, it was on the First Amendment, I was asked to be on a panel on Freedom of Association, which you may now as you think about it, it's not mentioned in the Constitution.
And so I was defending freedom of association on this panel next to sitting next to Frank Easterbrook from the Seventh Circuit. And 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. And I got a nice ovation and I spent the rest of the panel was everybody debating me about the Ninth Amendment, but at the time I didn't know anything about the Ninth Amendment other than what it said. And so I had to decide whether to study it and 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 out, sent him to the library, 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. And 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. It's not that big,
Mitch Daniels (24:43):
Not a lot of competition for that medal.
Randy Barnett (24:46):
No. So that's what happened. I read everything there. I became the nation's leading authority on the Ninth Amendment and some people nickname me, Mr. Ninth Amendment. And I do think, however, I do think in all seriousness, it is one of the most important sentences in the Constitution because it's a reminder that the underlying theory of our constitution, which was made explicit in the Declaration of Independence, and that is we have first come rights and then comes government because the rights to which the Ninth Amendment is referring, the ones that are retained by the people, these are rights they had already and they keep 'em. And that is a fundamental divide within the conservative legal movement. And that is do you think first come rights and then come government or do you think first comes government, which is the Lockean position, or do you have the Hobbesian position which is first comes government and it's government that gives us rights. Many conservatives are closet Hobbesian’s. They don't want to admit it, but that's what they are. And of course the great many conservatives are actually Lockean. I'm a Lockean when it comes to that stuff and the Ninth Amendment is our textual affirmation that that's the system of government that 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 (26:10):
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 10th. Those of us who are fans of federalism and some cases former practitioners and 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 10th 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, 10th amendment cases do win. I mean they have a better track record than ninth amendment cases. We are in the world of second best when it comes to the 10th Amendment. And let me explain why. When [James] Madison first proposed an amendment to the Constitution in a very interesting speech that he gave to Congress, and he did so over the reluctance of the other Federalists in Congress who did not want to amend the Constitution right away, he proposed the precursor of the Ninth Amendment, which he said was very important because it rebuts one of the principle arguments that he'd ever heard made against having a bill of rights, which is that you put some rights on there and you wouldn't get 'em all. And then he got later on in his speech to the precursor of the 10th Amendment, he said, well, this doesn't do any harm.
And it's pretty much obvious from the structure, but it doesn't do any harm to put it in there. In other words, he thought the ninth Amendment was really important. He thought the 10th Amendment wasn't as important. It was almost superfluous. But why did he think that? He thought that because this was supposed to be a government of limited and enumerated powers, that's the 10th Amendment. The 10th 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 or 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.
So what goes by the 10th Amendment jurisprudence are really giving special treatment to states in this 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. The first best solution is to go back to enumerated powers, in which case the 10th Amendment would be unnecessary. In our second best world, the only way we keep federalism alive is by giving states some privileges within the system. That's what Chief Justice [William] Rehnquist's agenda was in what was called the new federalism. He did not propose rolling back the New Deal. His position was this far but no farther that the new deal was the high watermark and you couldn't go any farther without a judicially administrable limit. And that was his signal contribution to conservative or the constitutional jurisprudence and sort of in the world of second best that we live in the 10th Amendment plays a role by saying we want to preserve, we want to preserve a federalism that has dual sovereignties and so we're going to have to look out special for the states where in a system where Congress was held to its proper powers, the states wouldn't need to look out for.
We wouldn't need to look out for the states that way.
Mitch Daniels (29:51):
The state of Utah a couple months ago passed the, 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 something that, is it one way to press back against the federal Leviathan?
Randy Barnett (30:35):
It is constitutional under current doctrine, and there's a famous case called the Prince Case, which involved whether the federal government, while they were waiting for an instant background check system to be developed before people bought guns, to compel local sheriffs, to do a background check on everybody who applied to have a gun and the sheriffs object, some of the sheriffs objected to it. And in an opinion written by Justice Scalia, they said, he said that commandeering the states was not a necessary and proper exercise of Congress's commerce power because it was improper. In fact, that opinion in Prince was one of the only authorities we had in the Affordable Care Act challenge as to why an individual insurance mandate was improper. We argued, we had very few precedents that said there was a difference between necessary and proper. Prince was the main one, and Justice Scalia was the author of that and he was still on the court. So I felt pretty confident about him on this question, but 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.
And so 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 and we have sanctuary whatever. Again, it's the anti-commandeering doctrine that conservatives have been for, I don't think.
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 in terms of our liberties,
Randy Barnett (32:28):
As long as there's not any active aiding and abetting of illegality, all there is a withdrawal from cooperation. I think that's perfectly okay. Oftentimes these sanctuary cities, however, are some, or not oftentimes, but sometimes at least they're in violation of state law. And that's the reason why states can step in or state legislatures can step in and deal with sanctuary cities. But it's not something the federal government can necessarily do. Whether I think it's a good idea or not. I think generally speaking, it's not a good idea in many ways. That's reason why I don't take this Utah law as being sort of a cure all for the situation we find ourselves in. I do think that if we got federal gun controls of the laws of the kind that would really be unconstitutional. I think it would be predictable that there would be an awful lot of state authorities, sheriffs and others who were not going to want to help enforce federal gun laws that they deemed 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 it's those around it. What about that?
Randy Barnett (34:12):
Actually, you're asking me something that's really about part of what I'm thinking about for my next book actually, which is a rethinking of libertarian first principles. I came up through the movement. I was a Rothbardian libertarian. Initially, I became more Hayekian by the time I was a law professor. And so the way I'm thinking about it these days is to think that libertarians need to think harder about individual liberty than we have. And that in fact there does come a point notwithstanding as I argue in the structure of liberty, the absolute imperative of private property, there may come a point where the institution of property starts to run up against the idea of individual freedom. This was something that I had gotten out. This came from my study of anti-slavery constitutionalism that culminated in my book, The Original Meaning of the 14th Amendment, which I was very pleased to have published by Harvard University Press.
So that got that off my bucket list to have a book that Harvard Press would publish. And I studied how the Republicans in the wake of the Civil War were very upset at the reposition of black codes and other restrictions on African-Americans. They thought that once they got rid of government coercion in the form of government authorized, and they passed the 13th amendment that we'd won and that black Americans could be free. But much to their surprise, much to the surprise of many abolitionists abolishing slavery wasn't enough because what got instituted in its place was a regime of apartheid that was being enforced by private property owners and also by violence against anybody who didn't want to go in favor of segregation and the limitation of African-American rights. And so it was a combination of private property and coercion and state action, local state action, and then a very big problem of state inaction where the law enforcement authorities would simply not enforce the law equally that the Republicans had to confront with a president, Andrew Johnson, who was not very helpful.
And eventually what they did is they passed the 14th Amendment first, they passed the Civil Rights Act of 1866, and then when its constitutionality was called into question, they passed the 14th amendment to ensure its constitutionality. And then they passed the civil rights law, the 1875 civil rights law, which banned discrimination and places of public accommodations and common carriers and places of public amusement because they developed a theory of citizenship that said that citizens had the liberty, had the constitutionally protected liberty, and to be able to go to public places without facing arbitrary discrimination that all citizens had that as a privilege or immunity of citizens. The Supreme Court invalidated that law in the 1880s in cases called the civil rights cases. It held, it was unconstitutional because it went beyond limiting state power and was regulating private activity. Well, I think we need to think harder about when private is really private and when private is actually public.
When non-governmental lectures in the public sphere can actually affect our individual liberty, our personal freedom as much as government can. In other words, I think libertarians and conservatives, because conservatives are, by the way, no better than libertarians on this subject. We are all kind of in the same boat. We need to add to our focus on socialism and communism, which we are very good on central planning and all the rest. We need to be a lot more concerned with fascism because fascism leaves ownership in private hands while the government's there. And a lot of stuff gets done by private enterprises in a fascist regime. And we need to have a theory…
Mitch Daniels (38:15):
Often under pressure from government,we've got very current debates right now about the tech companies either sensing or being directly coerced by government to do things that government on its own would be further than to do.
Randy Barnett (38:36):
Absolutely. And if it's a genuine threat by government, libertarians and conservatives have no problem objecting to that. They have no theoretical problem objecting to that. But when corporations get big enough, really big through the mergers and all kinds of other things, when they get really, really big enough, it doesn't have to be under government pressure. They could start ruling us without the means of government. We had a hypothetical, we debated back when I was a law student in the Libertarian scholars conferences, and that is, and I remember, I don’t know why this sticks in my mind, but it was what would happen? What would we say, and this will date the hypothetical, what would we say if it turned out that eventually New York State got owned by the Rockefeller family and Massachusetts got owned by the Kennedy family and they just start ruling as private property. Would we have no libertarian problem with that? Well, it was a hypothetical indicating, yeah, we, we'd have replicated the problems of the state in private hands. So I think this is a really hard.
Mitch Daniels (39:41):
It may be dated, but it doesn't sound so farfetched anymore.
Randy Barnett (39:44):
It doesn't, but I just want to emphasize this is a really hard problem. This is not an easy problem. It's easy to point to it and say, oh, that's a problem. What the answer is is hard. And going back to sort of my career, my career as a scholar is to try to figure out what I think. I write and I research primarily to figure out first what I think and only secondarily to influence anybody else. And I have to put it in writing. If I don't put it in writing, I really can't make clear about what I think. And I haven't tackled this. I've been doing a lot of reading, I've been doing a lot of thinking, and I've been doing some sort of shoot from the hip talking, but I actually haven't done the hard work and I think it's going to be a hard work. It is my next project to figure out at what point does individual liberty needs protection from non-government, but public institutions, but they're non-government, public institutions in a way that purely private non-governmental institutions like our homes and our families and our churches. That's different than what we're confronting when it comes to these large economic forces.
Mitch Daniels (40:49):
Well, some of us who are struggling with this question, hope you'll get to work on that very promptly. Let's work our way back where we started, which is to campus, there's, there's no subject more topical right now than the debates over free speech, its limits on campus and even more appropriate in the chance to visit with you. The subject around which much of that debate is happening is Israel, the Palestinian, the atrocities of last October, and the Israeli response to it, how's this look to a scholar like you?
Randy Barnett (41:32):
Well, diversity was a value that was first asserted as a means of keeping Jews out of Columbia and other Ivy League schools, and therefore they started recruiting from the farmlands where you're not going to find very much, we need geographical diversity at this school. And because guess what? The Jews are in New York and if we go out to Kansas, the people we bring in aren't going to be Jews. So Jews have been on a holiday in the United States for the last several decades. It's been a holiday from history, which is now reasserting itself. And so I'm not surprised by the way that this is happening on campus. I don't think my dad would be either, because this is really what happened in Germany as well.
There was a huge Hitler youth movement amongst universities and the professors fell in line or if they were not leaders of itself and Jewish professors were expelled. So universities are a hotbed of things like this. And our universities, because of the left catechism that has taken over our universities are extremely susceptible to this. The idea that you have to evaluate everything by who the oppressed and who the oppressor are, and then Jews are accepted to be the oppressor as opposed to historically oppressed. This is something that has been on campus for 20 years. So the big news here is it's breaking out of campus. As long as it was a confined to campus, people could sort of tell themselves, well, they'll grow out of it. But what happened Mitch, is they didn't grow out of it. They went into work for companies and now they're telling the boards what they want to see the boards do. And so it's broken out of the universities where it was being formulated in law school even when I was there. And now it is metastasized and it's a very dangerous time, but we will prevail. We are going to prevail. We always prevail instead of studying the history of all the bad things that happened to the Jews. What we ought to study is the history of all the bad things that happened to Jewish oppressors because they did not end up as well as we did. Each and every one of them got their comeuppance.
Mitch Daniels (43:50):
Well, you've anticipated in a way, my final question. We're giving this series the title of the Future of Liberty. So I'm curious to ask you, are you an optimist about the, given all the threats we've just discussed, are you still an optimist? Then your last answer makes it sound as though you are.
Randy Barnett (44:09):
I think I'm a glass half full guy. Many, many conservatives are conservatives because they're glass half empty people. And so optimist is a little strong, but I'm hopeful, and I haven't given up hope and I haven't given up fighting. My kids haven't given up fighting because actually, I mean, the one thing I think I've always believed, I know I've always believed this, and that is liberty can never be entirely won, but it can be entirely lost. And our obligation is never to win the ultimate victory. We'll never win the ultimate victory, but simply to keep the flame alive and pass it on to the next generation. And if you look at it that way, that seems to be within the realm of possibility. And there are many reasons to believe that the conservative movement in this country, of which I am generally speaking, aligned as a libertarian, is more robust in some ways, in many ways than it used to be. And I actually think a lot of the sort of impetus behind the appeal of Donald Trump to many people is there's actually a lot of upside there of that populist impulse. But the bottom line is we haven't lost, and therefore we can still win. And 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.
Randy Barnett (45:53):
A Life for Liberty, the Making of an American Originalist.
Mitch Daniels (45:57):
Thank you very much for joining us
Conclusion
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