Randy Barnett is a legal scholar and professor who teaches constitutional law, contracts, and legal theory at Georgetown Law School. A former practicing lawyer, he has written books including Our Republican Constitution, Restoring Our Lost Constitution, The Structure of Liberty, and An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. He is a central figure in the libertarian legal movement, and his work on the Commerce Clause and on originalism is the connective thread running through three episodes of The Bob Zadek Show.
The Commerce Clause and the Obamacare Challenge
Damon Root describes Barnett as the architect of the legal challenge to the Affordable Care Act’s individual mandate, and as a scholar who “has been arguing for a very narrow reading of the Commerce Clause for a long time,” on the view that the federal government has grown too powerful under a broad reading of that clause Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014). Root places the litigation in a longer arc: the question of how broad the Commerce Clause is had been debated since the New Deal, and one of the questions in the 2012 healthcare case was whether Congress had authority under the Commerce Clause to impose the individual mandate and make Americans buy health insurance.
Root recounts that in 2005 Barnett argued a medical marijuana case at the Supreme Court and lost, after California had legalized medical marijuana and the federal government maintained it was still illegal under federal law. Bob Zadek calls that outcome a terrible decision and identifies it as the Raich case. Root notes that Scalia and Kennedy voted against Barnett in that case, favoring a broad Commerce Clause power, and that seven years later the same arguments Barnett had always made about the Commerce Clause had become the default conservative position, with the entire conservative movement lined up against Obamacare. Scalia, Root says, changed his views, while Roberts held to the older conservative view Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Zadek frames the broader stakes in libertarian terms, observing that the warriors in the battle against Obamacare are for the most part libertarian or libertarian-leaning attorneys and that libertarian thought has an important role in the public conversation. Root agrees that the libertarian view has gained ground on the right and describes the libertarian legal movement as waging a war of ideas through law review articles, speeches, debates, and court cases.
Originalism, Living Constitutionalism, and the Presumption of Liberty
Barnett appeared on the show to discuss originalism versus living constitutionalism in the context of Amy Coney Barrett’s Supreme Court confirmation, and the episode notes his “presumption of liberty” as one of the ideas under discussion Amy Coney Barrett on Trial (2020). Zadek introduces him as a legal scholar and former practicing lawyer who now teaches at Georgetown Law, and reads out the titles of his books, including Our Republican Constitution, Restoring Our Lost Constitution, The Structure of Liberty, and An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
Asked why progressives embrace a living constitution, Barnett traces the concept to the turn of the twentieth century, saying progressives invented it then, that Woodrow Wilson was a living constitutionalist and was candid about his motivations, and that Wilson called the Constitution a “horse and buggy” constitution for a modern age. Barnett describes progressives of that era as viewing themselves as social Darwinists, treating societies as organisms that evolve to a higher state and therefore needing a constitution that permits such evolution. He characterizes the continuing motivation as a refusal to be bound by the dead hand of the past, and connects majority rule to his preference for fifty state majority rules, in which a person can choose with their foot which state suits them best, over one-size-fits-all majority rule where the only escape is to leave the country of one’s birth Amy Coney Barrett on Trial (2020).
Zadek offers a harsher reading, arguing that progressives reject much of America’s founding principles but cannot say so outright, and so pay lip service to the Constitution while minimizing it. Barnett says he could not find fault with that account and offers an analogy: telling a spouse “I love you, I love you dearly, and I want to fundamentally transform you” suggests you actually want a different spouse.
Across episodes: the libertarian legal movement and the courts
The treatment of Barnett develops between the 2014 and 2020 episodes. In the earlier Damon Root episode, Barnett appears as the architect of a specific litigation strategy—the narrow reading of the Commerce Clause used against the individual mandate—and as a litigator who lost the Raich case in 2005 only to see his arguments become the conservative default seven years later Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014). In the 2020 episode, he appears in his own voice as a constitutional theorist, explaining the intellectual origins of living constitutionalism and defending originalism and the presumption of liberty Amy Coney Barrett on Trial (2020). The earlier episode frames the libertarian-conservative split over judicial deference—with Scalia, Bork, and Roberts on the deferential side—while the later episode has Barnett making the affirmative case for his own theory. Root advanced the movement-history framing; Barnett advanced the theoretical framing.
A third episode, from 2014, touches Barnett only in passing: Zadek, opening a show with Derek Khanna, lists Barnett among the speakers at a Cato University week of lectures, describing him as a law professor who led the charge against Obamacare before the Supreme Court Derek Khanna - What’s Stifling Innovation? (2014). That excerpt contains no development of Barnett’s views and no argument advanced by him.
What the sources do not cover
The excerpts do not state Barnett’s date or place of birth, his educational history, or when he joined the Georgetown faculty. They do not describe the outcome of the 2012 healthcare case beyond noting that Barnett’s arguments became the conservative default, nor do they give the holding or the amendment at issue in the Raich case. His role in other litigation, his later writings, and any positions he took after the 2020 episode are outside what the sources state.
Episodes
1 appearance, 2020–2020.
- Amy Coney Barrett on Trial (2020) — Originalism and the Amy Coney Barrett Confirmation. Georgetown Law Professor