Georgetown Law Professor Randy Barnett is the author of A Life for Liberty: The Making of an American Originalist, a new memoir about his remarkable legal career. He joins Jeffrey Rosen to discuss his role in the evolution of originalism from a philosophy of judicial restraint to one of constitutional conservatism dedicated to restoring “the lost Constitution.”
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and is the faculty director of the Georgetown Center for the Constitution. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, Professor Barnett’s publications include several books, more than 100 articles and reviews, and numerous op-eds. His most recent book is A Life for Liberty: The Making of an American Originalist.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Randy Barnett, “A Life for Liberty: The Making of an American Originalist (2024)
- Randy Barnett, “Restoring the Lost Constitution: The Presumption of Liberty (2014)
- Randy Barnett, “Two Conceptions of the Ninth Amendment,” (1989)
- Ronald Dworkin, Taking Rights Seriously (1978)
- Antonin Scalia, “Originalism: The Lesser Evil,” (1989)
- National Federation of Independent Business v. Sebelius (2012)
- “Originalism: A Matter of Interpretation,” NCC America’s Town Hall Program (2022)
Excerpt from interview: Randy Barnett discusses becoming an originalist. He was initially disillusioned by Supreme Court rulings and later embraced constitutional law through involvement with the Federalist Society and scholarly work on the Ninth Amendment.
Randy Barnett: Yeah, well, I'm probably the only person in the United States that has become an originalist because I read The Unconstitutionality of Slavery by Lysander Spooner. Growing up as a conservative kid and then as a libertarian kid, I liked the Constitution, and then I took constitutional law. My law professor was Larry Tribe at Harvard Law School. No, really, this was not his problem, not his fault, but it was reading the Supreme Court opinions that caused me to be completely turned off on the Constitution. Every time I got to what I thought was one of the good parts of the Constitution, I would turn the page of the casebook, the Gunther casebook, and find that the Supreme Court had gutted that clause. And all the clauses they had gutted added up to what I later on called the Lost Constitution.
The Lost Constitution, in my book, Restoring the Lost Constitution, was not pining for the constitutional law pre-New Deal. It was pining for the clauses of the Constitution that the Supreme Court had read out of the Constitution. But by the time I was done with constitutional law, I was sort of done with the Constitution itself. And I was reminded at that time of an essay written by Lysander Spooner, the only essay I knew by him, which I read when I was a college student, called No Treason, The Constitution of No Authority, in which he argued that, first of all, the Constitution lacked consent in any meaningful sense and therefore was illegitimate. But secondarily, he said, even if it did have that, it had failed to live up to its promise. It had failed to prevent the kind of government growth that it was supposedly put in place to accomplish, and therefore it was a failure.
And by the time I was finished with constitutional law, I had agreed with Spooner that it was a failure. And therefore I pursued my original course of career objective to be a criminal trial lawyer, which I had wanted to be since I was 10 years old. I became a criminal prosecutor in Chicago and enjoyed my time there immensely. And when I eventually became a law professor, and the book tells how I made that transition from criminal prosecutor to law professor, I became a contracts professor because I had really no interest in constitutional law. And contracts, I believed in the law of contracts, and in the law of contracts, writings are taken seriously. In fact, the original meaning of writings are taken seriously. And so that's how I started.
And how I ended up getting backed into constitutional law had to do with the founding of the Federalist Society, which happened in 1981 after I had graduated from law school. There was no Federalist Society when I was in law school, but I was invited to speak at the fifth annual student symposium at Stanford on the First Amendment. And I was put on a panel about freedom of association. And in my talk, and I was very reluctant to accept this invitation, the student that invited me had to convince me to go. He said, "You're a smart guy." I said, "Brian, I don't do the constitution." He goes, "Well, you're a smart guy. You can come up with 10 minutes of something to say." So I said, "Okay." I wanted to go.
There were all these big time people who were on the program. I wanted to be with them. So that was something I wanted to do, but I didn't know anything about the Federalist Society. I assumed they were a monolithic conservative group that would shun a libertarian like me. Turns out they were a coalition of conservatives and libertarians in which I was welcome. And my remarks were also welcome. As I say, this was a panel on freedom of association. And one of the things I noticed when I gave my talk was that the First Amendment doesn't say anything about freedom of association. It says freedom of speech, press, and assembly, but not association. So that would make it kind of an unenumerated right, protected by the First Amendment somehow.
And the punchline to my talk about what would give unelected lifetime appointed judges the power to create, to protect this right that isn't specifically mentioned in the First Amendment, my punchline was to read the words of the Ninth Amendment, which says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. I expected a negative response. I knew that the Ninth Amendment was in disrepute in all quarters of academia. But I nevertheless thought I could use it as my punchline. I got a very nice, warm response from the audience, which was encouraging. And then I went back to school, which I was then teaching at Chicago, Kent College of Law, and I asked myself, I don't really know anything about the Ninth Amendment.
I just know what it says. I mean, maybe I should learn more about it. Again, realizing that it was a matter, it was sort of a disreputable amendment to be concerned about, as in, what are you gonna argue, the Ninth Amendment? Meaning it's ridiculous. The Ninth Amendment doesn't really exist. But I thought, look, I've got tenure now. I also thought that the left, who controls more or less the agenda, the intellectual agenda of the legal academy, was interested in unenumerated rights. They might actually be interested in scholarship on the Ninth Amendment. And I put in the works, a whole bunch of scholarship on the Ninth Amendment. I had an article that was forthcoming in Cornell. I had a book contract with George Mason Press to edit down scholarship that had already been published on the Ninth Amendment.
And I had a symposium scheduled in the Chicago County Law Review on the original meaning of or the meaning of the Ninth Amendment, not the original meaning of the Ninth Amendment, but the meaning of the Ninth Amendment. So all of these things were in the works when Robert Bork was nominated to be on the Supreme Court. And in 1987, during his hearings, he was asked about the Ninth Amendment repeatedly. And in response to some questioning by Dennis DeConcini of Arizona, Bork analogized the Ninth Amendment to an inkblot on the Constitution. He said, it's like there's an inkblot on the Constitution and you can't read what's under it. Judges should not make up what's under the inkblot. And even the Wall Street Journal the next day editorialized against that.
But within six months, all my Ninth Amendment stuff had come out and I was able to put the Bork quote in the front of every one of these articles that I wrote. That's sort of the lead quote against which these articles were written. And as a result of this, I got put on the map. All my scholarship on the Ninth Amendment was welcomed because everybody wanted it. We're all curious about the Ninth Amendment now and my stuff all came out. And that's what got me over, at least the beginning of being over to being a constitutional law professor. How I got to be an originalist, I was not an originalist at that time. I had been a student of Ronald Dworkin.
The book talks about the independent study that I did under Ronald Dworkin, criticizing a chapter of his book, Taking Rights Seriously, in which I argued you should take liberty seriously. I tell that story. But I would consider myself a Dworkinian. The views that he, the moral reading approach that he identified in Law's Empire, I thought was brilliant and the most persuasive account that I knew of. And I was also very persuaded by the criticisms of originalism that had been leveled against it by Paul Brest in 1980, when he coined the term originalism itself and constructed several theories of originalism to criticize, and by Jeff Powell in his article in which he argued about the understanding of original intent, I was persuaded by those articles that originalism was a non-starter and had basically been refuted.
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