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 …
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 …
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 …
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.