Amy Coney Barrett on Trial
2020-10-09 · Guest: Randy Barnett (Georgetown Law Professor) · 51:49
Originalism and the Amy Coney Barrett Confirmation
Constitutional lawyer Randy Barnett discusses the philosophy of originalism versus living constitutionalism in the context of Amy Coney Barrett’s Supreme Court confirmation. They explore the implications of judicial deference, the “presumption of liberty,” and how the centralization of power in Washington has turned national elections and court appointments into high-stakes battles. Barnett argues that a return to the original meaning of the Constitution would restore federalism and reduce social conflict by allowing for diverse state-level solutions.
Topics: Originalism, Living Constitutionalism, Amy Coney Barrett, Supreme Court, 14th Amendment, Privileges or Immunities Clause, Slaughterhouse Cases, Presumption of Liberty, Judicial Deference, Federalism, Second Amendment
Speakers:
- Bob Zadek: Host
- Randy Barnett: Constitutional Law Professor at Georgetown Law
Introduction to the Supreme Court Battle [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. The show this morning and always of ideas, never once the show of attitude. Thank you so much for listening this important Sunday morning.
My goodness, how did we get here? How did we get to a point in the history of our country that all of a sudden events in Washington seem to be about to alter—alter profoundly—the political life in our country and perhaps in the world? Not only that, but it’s not just what’s going on in Washington, but it is what’s going on in the Supreme Court. All of a sudden, Americans are required, if they wish to intelligently participate in government, they are required to understand the dynamic of the Supreme Court. Why the Supreme Court, the branch of government with no budget and no power to enforce its rulings, comprised of nine unelected, serving-for-life public servants, if you will—how that branch of government has become so important. And we also must understand, is that healthy?
How did we get here? How did that branch become so important? Not only that, and now on top of all of that, we have to understand and take an informed position on how we feel about the possible, I’ll say probable, likelihood of the elevation of Judge Amy Coney Barrett to be a justice on the United States Supreme Court, what that will mean for the country, how it will affect the lives of all of us, and what’s going on in what is the dynamics of all of that in D.C. As if we didn’t have enough to be concerned about in our already complex lives, now we have to learn this.
To help us understand these complex issues—and they are complex at one level, but quite understandable, ones that one can really get our minds around—to help us understand this, I am proud and delighted, perhaps thrilled is the right word, to welcome to the show this morning Professor Randy Barnett. Professor Barnett is a legal scholar, he was a practicing lawyer for many years, and now he teaches con law, contracts, and legal theory at Georgetown Law School in D.C. Randy has written many books, and I’ll just recite some of the titles because by the titles alone, you will understand why Professor Barnett has been invited to join us this morning. His books include, but are not limited to, Our Republican Constitution (Republican not the political party, the theory of government). He has written Restoring Our Lost Constitution, a must-read, and The Structure of Liberty. His most recent book just came out, and it is a must-read for anybody who is even remotely curious about how our government really works, is titled An Introduction to Constitutional Law, subtitled 100 Supreme Court Cases Everyone Should Know. And the title means what it says: everyone should know. Randy will help us understand the dynamics of the confirmation battle—and yes, it will be a battle—over soon-to-be Justice Barrett, we hope, what this means to the court, what this means to all of us. Randy, welcome to the show this morning and thanks so much for all of the scholarship you have made available to me and everyone else who has read your books.
Randy Barnett: Well, Bob, thanks very much for those extremely kind words. They make my day, they make my weekend, and they make my week.
Bob Zadek: Well, your appearance on the show does the same to me, so we have a mutual admiration society already. So thank you so much.
Originalism vs. Living Constitutionalism [04:52]
Bob Zadek: Okay, Randy, let’s get into it. Now, first of all, as an introduction to this morning’s topic, and it will segue beautifully into a discussion of Amy Coney Barrett, you are a passionate, strong advocate for a concept of interpretation of the Constitution which has been called generally originalist, looking at the original meaning of the Constitution. And that is compared, perhaps if we want to divide the world into two parts, an alternative philosophy which you and I do not subscribe to is something called, not very helpfully, the “living constitution.” So help our—and this will be important because possible Justice Barrett will play a role in this—help us understand, just so we can so the audience can follow along what is happening in Washington, D.C. and in the rest of the country, help us understand those two very different interpretations of the Constitution and why it is so important to us.
Randy Barnett: Well, I’m delighted to. And believe it or not, it’s not that complicated. It’s actually—this part is—there are a lot of things that are complicated, and I guess we’re going to get into some of those, but this one isn’t. Originalism is the view that the meaning of the Constitution should remain the same until it’s properly changed by amendment and not by judges. That’s it. That’s originalism. The meaning of the Constitution, of a written constitution, should remain the same until it’s properly changed by amendment, not by judges.
So what is living constitutionalism? There isn’t just one living constitutionalist theory. There are, you know, competing living constitutionalist theories, but essentially it’s the opposite of this, and that is that the meaning of a written constitution can and should be updated by judges to reflect the changing times and troubles and problems that every society faces. So it is a judicial updating view of the Constitution rather than viewing the Constitution’s meaning as fixed and that judges are subject to that meaning as opposed to being able to determine that meaning for themselves.
Bob Zadek: There have been, of course, hundreds, perhaps thousands of important constitutional law issues that the Supreme Court and the lower courts have had to wrestle with over our 231-year history. Just to help our listeners apply those two abstractions, if you can, if this is possible, if you can take, I’ll say at random, any issue that comes to mind and give us an example of how an originalist would decide the issue based upon the Constitution and how one who advocates a living constitution would reach a different conclusion, if this is possible.
Randy Barnett: The most important one is probably the meaning of the Commerce Clause and the Necessary and Proper Clause. But I’d like to use that one second and basically use an easier-to-understand example that will require less explanation, and that is the meaning of the right to keep and bear arms in the Second Amendment.
An originalist would argue that that right—the meaning of that right—is the same today as it was in 1789 or 1791 when the Second Amendment was ratified. And also that the right to keep and bear arms is the same today as it was in 1868 when the 14th Amendment was ratified that says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Among those privileges or immunities was the right to keep and bear arms, the individual right to keep and bear arms. So that’s what an originalist would say.
Now, there are people who are opposed to gun rights who argue that the original meaning of the Second Amendment was actually not an individual right; it was a collective right. Well, that is an originalist argument that they’re making. So that’s okay. I mean, I think it’s wrong, but it’s okay for them to make that argument because they’re making an originalist argument about what the public meaning was of “right to keep and bear arms” if they argue that it had a military-only meaning.
What a living constitutionalist would say is that the Second Amendment is at best a starting point of a judicial analysis or a single factor to be considered along with all other factors to be considered, and that with the changing times and with changing circumstances—for example, the Founders would not have imagined that weapons would become as lethal as they are, or that people have become as violent as they are, or whatever you would say has changed between then and now—and if they were alive today, they would say that public safety might require strong restrictions on the right to keep and bear arms today. And of course, living constitutionalists don’t have to say what the Framers would say; they can simply say, “That’s what we say, and we should not be bound by the dead hand of the past,” they argue. “Our gun policy should not be restricted by what some people who are long ago dead thought gun policy should be. Gun policy should be decided today by the legislature, and there should be no constitutional right that stands in the legislature’s way.”
Bob Zadek: So therefore, the originalist would say, “And if society feels that a certain provision in the Constitution is wrong given life in America today, there is a solution. It is a political document and there is a mechanical way to change it. And if you feel there is no individual right to bear arms or that should be limited, there’s a way to do it. It’s not as if it cannot be changed, but there is a mechanical way to do it, and it is not by what some judge, justice today determines should be the 21st-century application of that.” And the solution is: just change it. So therefore, it is not as if originalism says we are stuck with the dead hand from the past. We’re not stuck with it at all; in fact, there’s a mechanical way to change it. But the wrong way to change it is just to shrug it off and just to change it by judicial reinterpretation. Is that an accurate summary?
Randy Barnett: That’s right. And the Constitution’s been changed 27 times. It’s been changed in significant ways. The 14th Amendment created a federal power to police states so that they wouldn’t violate the rights of their own people, which is a power that the federal government largely lacked before 1868. In the Progressive Era, we saw the establishment of a power in Congress to tax incomes, which has had a huge effect on our structure of government—I think for the worse—but it was done the right way through a constitutional amendment which allowed Congress to tax incomes, and that’s how we got the income tax. That was done by constitutional amendment as well.
So the Constitution has been amended. And if the Supreme Court were ever to enforce the original meaning of the Constitution and that meaning just completely flew against modern contemporary opinion—as I think it might in some cases—then I would predict in those cases you would get a rapid amendment. And it would have the virtue of having a text that justices and judges can follow in the future when they have to interpret the meaning of the new amendment. In fact, anyone who proposes a new amendment surely wants that amendment to be read as it was meant to be read at the time it was enacted, or why propose the amendment itself? If judges can undo the original Constitution, why couldn’t they just undo any amendment that would change it?
Which is actually, Bob, what they did do. What the judges did do with the 14th Amendment. I read you the Privileges or Immunities Clause, which says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. That seems quite important. But because they disagreed with the scale and scope of that change to the Constitution, judges undid that provision. And they did that five years after it was enacted in a case called the Slaughterhouse Cases. And any lawyer will tell you that you cannot plead the Privileges or Immunities Clause today because of stare decisis and precedent which says that essentially it has no meaning. The judges did that because they didn’t agree with what the Republicans did when they enacted the 14th Amendment. They thought it was too radical, they thought it undermined our federalism, and therefore they restored the meaning of the Constitution before the amendment, which is a form of living constitutionalism.
Why Originalism? The Rule of Law [14:21]
Bob Zadek: Now, I know you’re a Bears fan, and you like the Bears because you come from Chicago and that’s the team you feel allegiance to. But your commitment, your passionate commitment and mine to originalism is not as arbitrary as you happened to have been born in the Midwest and therefore you’re a Bears fan. There is a philosophical, a passionate, as you have so often taught me when I sat in the audience when you spoke, there is an intellectual passion behind originalism. It’s not just Bears versus Giants versus Niners. So tell us why, tell us why you are intellectually committed and why all of us should be committed to originalism, not just because it is conservative and perhaps we are conservative. It has nothing to do with that. There is a deeper, more important reason why you so strongly embrace originalism. Why is that, in your opinion, the right way, if you will, to interpret the Constitution?
Randy Barnett: Well, I’m happy to answer that question. There’s multiple reasons for originalism, not just one. But let me just identify two reasons. One, this first reason has to do with the rule of law, and that is that judges take an oath to adhere to a written constitution. All government officials take an oath to adhere to the written constitution. And the reason why we only give them power—the power to do what they do—is in return for that promise they make to follow the Constitution.
So what a written constitution provides is a rule of law to govern those who govern us. The Constitution actually doesn’t govern us, “We the People.” The Constitution—except for the 13th Amendment which bans slavery—it bans us from having slavery, not just the government from endorsing slavery. But with the exception of the 13th Amendment, the Constitution does not bind “We the People.” The Constitution is the law that governs those who govern us. And in the absence of that law, if those who govern us can make up whatever laws that govern them, it would be just the same thing as if you and I, Bob, could make up whatever laws that govern us for our convenience. And not only that, we could change the law as we wish to, as it fits our needs of the moment. And I think everybody would agree that would be a very chaotic way to have a society where each individual person would make up their own law, and their law can change depending on what they would like to do at that particular moment. It’d be like having “living speed limits” instead of a speed limit for everybody.
So that’s one reason. It has to do with the virtue of having a rule of law to govern those who govern us, and that’s the only reason we give them the power under that law.
The other reason is because our particular Constitution happens to be a good constitution. And if that Constitution, which is law, is followed, we’d be better off as a group, as a country. We would be better off than if we merely follow the constitution that’s given to us by nine justices on the Supreme Court. The Constitution is actually a better document than what the Supreme Court can provide.
And if we were to follow the Constitution, Bob—the original meaning of the Constitution—it actually would do a great deal to reducing the significance and importance of two things: of national elections (so every four years it’s a fight to the death, it’s the most important election of our lifetime—it would reduce that) and it would reduce the importance of who gets to be on the Supreme Court, as we fight over that every single time. And it would reduce the importance of both of those things because it would allocate power to 50 states for 50-state solutions to social and economic policies. And we would not all be fighting either to have our policies adopted at the national level or—actually, what even gets people to fight more—is to stop people with whom we disagree from imposing their views on us.
As a result, every national election is a fight to the death to prevent the people we disagree with from having their way and imposing their will on us. And also, we would like to, you know, embody our will into law. But mostly it’s self-defense. We’re deathly afraid of what will happen if our political opponents get control of this central government. But if we had 50 states—50-state solutions to almost every social problem—and remember, the 14th Amendment would still be there to protect each of our individual rights against our own states. If we could have 50-state solutions, it would decentralize and diffuse all of this intense social and political conflict that we’re now experiencing, and make the Supreme Court a lot less important than it currently is.
The Concentration of Power [19:43]
Bob Zadek: It’s so interesting that you said that, Randy. I have so often on my show—I have done shows on, well, I did a show recently on: are we more at loggerheads with each other now than in the past, or have we always been this way? And what makes it seem like the disagreements, the polarization is more intense? And I concluded—and I’m going to just repeat your words—I concluded that the problem was with all power, or with the devolution of power leaving the states and going to Washington. That means the stakes in Washington elections get increasingly higher because it’s a fight to the death. If you lose the battle in a national election, then the other side gets to impose their political philosophy on you, whereas with diffused power at the state level, you’re not painted into a corner. You’re not stuck with having the choice of staying here or moving to another country. You can just “foot vote,” as our friend Ilya Somin has so often pointed out. You have a safety valve. Before you get that angry, you just get up and move, as people are doing. But when that option is not available, then you’re betting the ranch every four or every two years. And so it involves the word the Founders feared the most, which is power, concentration of power.
And it’s a wonderful segue, Randy, into the next topic, which is the power, the incredible power that has devolved into the Supreme Court. When you describe a living constitution where you have the judges in effect rewriting the Constitution as they think it should be written, you’ve just described a legislature. A legislator is elected to take their judgment and use their judgment to write laws consistent with the Constitution, of course. But that’s not the job of a judge. That’s a legislative job.
So as you and I have both observed, the Supreme Court has, I dare say reluctantly, kicking and screaming, being brought into the battle and forced to become, by abdication of the other branches, has forced to become a legislator because the other two branches aren’t doing a good job at it. So we have the Supreme Court has become much more powerful, I dare say, than it was supposed to be in the founding. And they are now making social decisions on the lives of every American when their job was simply to preserve and defend, as you have quoted, the Constitution. So isn’t the Supreme Court—isn’t the timeline—isn’t the Supreme Court seem to be accumulating, not by its own act but by default of the other branches, far more power than it was designed to handle? Is that a fair statement on what’s going on?
Randy Barnett: Yes and no. The Supreme Court’s power is the same as it’s always been, which is the power of judgment—the power to say whether something that the legislature is doing or the executive branch is doing is constitutional or unconstitutional. If it’s constitutional, then these other branches may continue to do this. If they find it unconstitutional, then these other branches have to stop doing this. That’s what their power is. It’s what their power has always been. And even though some conservatives question this, it is the original meaning of the judicial power. It is not something that was invented by John Marshall in Marbury v. Madison.
What has changed is the criteria that the court uses to decide whether something is constitutional or not, which gets us back to our originalism versus living constitutionalism. Do they rely on the original meaning of the Constitution? And then what is that original meaning? They have to answer the second question as well as the first question. Or do they rely on their own sense of what’s proper or improper, what violates a right or what doesn’t violate a right?
So their power is the same, but their discretion in exercising that power has been greatly expanded. And as a result, they’ve made errors in both directions. This is why it gets complicated. They’ve made errors in both directions. On the one hand, they have acknowledged or recognized or enforced rights that may not actually be rights, and thereby stop legislatures—the other branches—from doing things that perhaps they ought to be able to do. But on the other hand, they have failed to enforce constraints on government, both at the federal and state level, that would stop the other branches from doing things that they shouldn’t be doing under our scheme of government.
So it’s complicated because you’d have to get into a specific discussion of rights on the one hand or powers on the other hand. But I do think the methodological problem is they’ve taken it upon themselves to make these calls, make these decisions. And I wouldn’t—I was listening to you and I said, I don’t think I would analogize that with the legislature. I think I would analogize that with “We the People” ourselves, because “We the People” are the ones that supposedly speak through the Constitution. And so the Supreme Court is usurping the role of the people, not the role of the legislatures, because the legislatures also are supposed to be servants of “We the People” as well.
The Presumption of Liberty [26:08]
Bob Zadek: That’s a very interesting and persuasive correction. I’ve learned something just now from what you have explained. Now, in this conversation we’re having this morning, there are two very important words that we’re going to segue into. And the words are “presumption”—and they’re related, they don’t seem related, but Randy, you will understand immediately my reference. One is “presumption”—presumption of unconstitutionality, presumption that something is right or wrong. And presumption is a powerful word because it puts the burden on the other side to prove something while the party with the benefit of the presumption can sit with its hands folded and say, “Prove I’m wrong.” So presumption is an important word in law and in constitutional analysis.
And the related word, which is relevant as we segue into Judge Barrett, is “deference.” Now, those words, of course, are related. So as we segue away from living constitution versus originalism—but this will be related—and go into… Randy, you advocate for the court assuming, I think your phrase is, a “presumption of unconstitutionality,” which sounds like you’re a troublemaker, Randy, but you’ll explain. And also how the concept of judicial deference fits into this conversation, because it’ll segue into a difference you have—a philosophical difference—with Judge Barrett. So first, explain: are you just a troublemaker that you want statutes to be presumed to be unconstitutional, or is there something deeper involved?
Randy Barnett: Well, Bob, I am a troublemaker, but I’m not just a troublemaker. Look, there are actually not two but there are three approaches to this issue that the court has taken over the years. And let me just say what the issue is, and then I’ll say the three approaches.
The issue is: when a judge is deciding whether legislation is within the power of a legislature to enact—whether it’s within the enumerated powers of Congress to enact or whether it’s within what’s called the state’s police power to enact, which is a more general power—when judges have to decide whether a particular statute is within the power of the legislature to enact, how much do they defer to the judgment of the legislature that it’s within the legislature’s power, and how much do they essentially defer to the decision of the individual citizen to exercise the liberty that the statute is restricting?
So it’s sort of a “who gets the benefit of the doubt?” Do they give the benefit of the doubt to the legislature when they restrict the liberties of “We the People,” or do they give the benefit of doubt to the people? And then depending on who they give the benefit of the doubt to, the other side can offer evidence and argument as to why they are right after all.
So let’s say the court gives the benefit of the doubt to the individual whose liberty is being restricted. They would still allow the legislature or the government to come in and say, “No, no, this is why what we’re doing is within our proper powers.” If they put, by the same token, they give the benefit of the doubt to the legislature, then it ought to be the case that citizens can come into court and rebut that presumption and say, “No, no, no, this is really not within the powers of the state. Let us offer evidence as to why it’s not.”
So the first of these would be a “presumption of liberty”—presumption in behalf of liberty—then the legislature can rebut that presumption by presenting evidence or argument. The second would be a “presumption of constitutionality,” where the citizen has to come in and rebut the presumption with evidence and argument.
There is a third approach, and unfortunately, it’s the approach that has been taken by the courts in many cases, and it is the approach that Judge Barrett defends under certain circumstances. And that is that we presume laws to be constitutional and that we don’t allow citizens to come in and contest their—rebut the presumption. We just say as long as any reasonable person would think that the law was reasonable—and of course there by definition would always be some reasonable person who would think a law is reasonable—then that’s constitutional as far as we’re concerned. And we the judges, we are going to get out of the way and let the legislatures do that as long as any conceivable rational basis for that law can be identified. And it doesn’t matter if the legislature offered that reason, if the executive branch offers that reason. We even come up with those reasons ourselves. But as long as there’s a reason we can think of, that’s good enough. And then a citizen will not be able to come in and offer evidence and arguments to rebut a presumption of constitutionality, much less give the benefit of the doubt to the individual citizen. So that—it’s over that—that Judge Barrett and I disagree.
Bob Zadek: What’s interesting is, Randy, when I think of you and I recall the many times I’ve sat in the audience when you have spoken, the words that always come to mind—it’s like part of who you are—is the “presumption of liberty.” When I first heard you say those words, I understood so much after you said those three words that I didn’t quite understand before. And to help our audience understand a bit, indeed my own sort of intellectual analysis, when I take the word “presumption,” I ask our friends out there to recognize and understand and appreciate that the cornerstone of our criminal law—now, criminal law is crucial because it is the body of law which empowers the state to remove, to take away our liberty, to take away our rights. Nothing, in my opinion, is a more important body of law than criminal law. And the cornerstone of our criminal law system is the presumption of innocence.
Now, we all know—we all know from when we were very young—that we learn from popular television, from the media, from what we learn in school, that the burden is on the state to prove that an individual committed a crime and should be deprived of her liberty. Why is the burden on the state? Because to the Founders and to all of us, liberty is more important. If we are going to err, we’d rather err on the side of preserving liberty than err on the side of taking away liberty. So therefore, the burden is on the state.
And Randy, what you have said to me is the exact parallel, except it’s not criminal law. But since every law in one way or another deprives us of a liberty—we must do something or cannot do something else—every law has that phrase somewhere in it. That means every law is the deprivation of liberty—not a jail cell, but the deprivation of liberty. Therefore, once again, to be consistent with the criminal law philosophy, the presumption should be on liberty—the presumption of liberty that you have said so often. So I think that’s what I did in my head when I first started to appreciate that concept.
Amy Coney Barrett and Deference [35:03]
Bob Zadek: Now, then there’s a related concept of, which is very related, and I think this—when Amy Barrett reviewed your book, Our Republican Constitution, I think she specifically took issue with the issue of deference. So just help us understand what her point was, because it gives us an insight into her constitutional view as compared to yours. What was the point she was trying to make?
Randy Barnett: Right. Well, I want to answer that question, but I don’t want the listeners to be misled. I strongly support Amy Barrett’s confirmation to be a justice on the Supreme Court, notwithstanding the disagreement you and I are now identifying, which is very real. And the reason I do is not only do I believe she has the character to be on the Supreme Court—which is an important part of judicial character, which is an important part of being a judge—the intelligence, the background, she is an experienced law professor who has written great scholarship and understands… but this leads me to my point. She’s an originalist. She understands what originalism is. And I would have confidence that she would be an originalist on the court and she would remain an originalist on the court, and she would not be seduced by the power that Washington and the establishment can offer Supreme Court justices.
We disagree, but I disagree with many conservatives about this particular issue of deference. Now, I will say that what this means on the upside for her is that where the Constitution is clear about either allowing something or prohibiting something, I think she will enforce the Constitution as it is written more likely than most other people who would be appointed to the Supreme Court. There is one wrinkle on this, Bob, and that is it’ll depend on what her view of stare decisis or precedent is. So that’s a separate question.
But let me now get back to the issue of deference, which you’ve asked me about, where we disagree. I think that Judge Barrett will enforce the rules of the Constitution where those rules are clear, but the issue is what happens when there’s a general injunction or Congress is exercising one of its powers but does so in a way that is either unnecessary or improper. Under those circumstances, I would expect her, as she explained in her commentary on my book, to be more deferential to the opinion of Congress.
Now, here—so deference means she would put the opinion of Congress on whether what it’s doing is within its powers perhaps over what the opinion of the Supreme Court is. The way she puts it, however, is not quite like that. The way she puts it is to say that the Congress gets to make policy judgments and courts are not competent or capable of making policy judgments. And stated that way, I do agree with her. But I don’t think it’s a policy judgment for a court to ask the Congress to explain just why it’s doing what it’s doing and why it’s necessary and why it’s proper, and then to have a court exercise independent judgment over that claim. I don’t think that gets the court—that’s the reason why I resisted your analogy of the court to a legislature. I don’t think making that assessment of the relative merits of Congress’s claim versus the relative merits of an individual claimant’s—a plaintiff’s—claim that this action is either unnecessary or improper under the Constitution for it to implement. She would defer to Congress.
The result of the deference that she and many other conservatives favor is that what we have in effect is a system not of single deference but of double deference. What is double deference? Double deference is: you go to the Supreme Court and you say, “Your Honor, this is not within the power of Congress because it is either unnecessary or it’s improper or it’s both, and Congress hasn’t adequately supported why it’s necessary or proper.” And the court says, “Oh no, no, we’re going to defer to Congress on this issue because we don’t want to get in the business of deciding that question.” Then you go across—literally across the street—to the Capitol, and then you go up to a congressman or a senator and you say, “Okay, the court is deferring—you know, it’s up to you to decide whether this is within your power or not. Is it within your power?” And what do they tell you each and every time? They say, “Yes, it’s within our power. Why? Because the Supreme Court will uphold it.” They predict the Supreme Court will uphold it. Well, why is the Supreme Court upholding it? Well, because they’re deferring to Congress. And what is the congressman doing when you ask him about constitutionality? They’re deferring to the Supreme Court. And when each side is deferring to the other, each side is pointing their finger to the other, and what drops out of the equation is the Constitution. And what in particular drops out of the equation are constitutional limits on legislative power at the federal level and at the state level.
Bob Zadek: And so with double deference, we end up with no advocate for the Constitution. Each side gets to deflect responsibility to the other. “Don’t scold us, don’t punish us politically or in the media or whatever, because talk to the other guy, or talk to the other branch of government.” And so we end up with—in effect, we end up with—“We the People” end up with no advocate for the Constitution.
And let us all remember that the Constitution is not merely parchment. The Constitution is our line of defense against expansive government depriving us of our rights. The Constitution does two things: it presents the mechanical building blocks for government—the two-by-fours, three branches of Congress, bicameral legislation, executive—all that building blocks, the two-by-fours that build the structure. But it also—it also—says in exchange for us seeding some power to the government—power that otherwise resides in us—we are giving that power under very strict controls and conditions. That’s called the Constitution. And once nobody, no branch of government is around to protect the Constitution from infringement, that means the barrier starts to crumble. And I think that’s a fair summary of what happens when each branch—when nobody is around citing the Constitution as the basis for taking a position.
Randy Barnett: Yes, the Constitution just drops out.
Bob Zadek: Exactly.
Randy Barnett: Yeah, the Constitution just drops out because the Supreme Court’s citing Congress and then Congress is citing the Supreme Court. The Constitution drops out. And what originalism says is that it’s the Constitution that should be constraining everybody, not just the courts but Congress as well. But if the courts don’t hold Congress to it, then Congress won’t hold itself to it.
The courts do enforce the First Amendment—the freedom of speech, let’s say, or press or assembly. But say freedom of speech. Because they enforce that, when Congress goes to pass a law that might infringe or restrict speech, they actually debate it and they think about it. They actually have to make arguments, and it becomes a subject of debate. And why? Because they know the Supreme Court’s going to be looking over their shoulder. The way as a felony review assistant in the Cook County State’s Attorney’s Office, I used to look over the shoulder of the police because charges in Chicago—felony charges—cannot be brought unless a felony review assistant signs off on it. And so the police knew before they came to me that I would be checking their work, and therefore that would cause them to do better work before they even asked for approval of felony charges. If nobody’s checking your work, you can get away with a whole lot more than if somebody’s checking your work. And that’s really the role the Supreme Court is supposed to be playing.
Bob Zadek: It’s almost as if “We the People” need a public defender in every case arguing and protecting the Constitution, since the other branches—we need a fourth or fifth, depends on how you count the administrative branch—we need another branch of government sort of like independent counsel or like the Inspector General, just to always be the guardian of the people’s rights under the Constitution, because you describe a system where there’s an abdication by both of the other branches of government, the legislative branch and the executive branch. So that’s what is sort of missing in the equation when we have what you have described as double deference.
The Progressive Worldview [42:59]
Bob Zadek: Now, a question that—and this may be the last question we get to examine in detail—I never can understand, and perhaps you can help: why is it that, let’s say, progressives or one of the political parties—even though a political party does not describe a philosophy at all, it tells you nothing about one’s philosophy when you identify with a party, it’s just each party is a cobbled-together group of special interests that can hope to achieve a voting majority—but be that as it may. So we have two parties. What is there about the progressive worldview that makes them embrace a living constitution and the conservative Americans to embrace a living constitution? Because conservatives, for example, they support gun rights, for example; they are more protective of religious liberty; they are against unions, for example, favor economic rights. But those don’t seem to have much in common. Those are individual positions on individual issues. So what is there about a living constitution that progressives embrace so much? I have my own view, Randy, but I’d like to hear yours.
Randy Barnett: Well, progressives invented the concept of a living constitution at the turn of the 20th century, between the 19th and 20th century. Woodrow Wilson was a living constitutionalist, and he was quite candid about his motivations. He didn’t like the Constitution. He didn’t like it. He said that we should be living under a parliamentary system and that this was a “horse and buggy” constitution for a modern age. And progressives viewed themselves as social Darwinists because Darwin and evolution was considered to be the highest form of scientific knowledge. And societies were like organisms, they thought. And just as organisms evolve to a higher state, societies evolve to a higher state. And in the evolution of society to a higher state, because societies are living, breathing organisms, a constitution—not our Constitution, but a constitution—is needed that will allow societies to evolve the way they ought to evolve to a higher and better state.
That is the deep underlying root of the original idea of the living constitution. And so I mean, I think that’s exactly what motivates progressives today. Why be bound by the dead hand of a past when we ourselves today know better than they did about what society should require? And not only that, we shouldn’t be ruled by them because we should be ruled by ourselves today. And “ruled by ourselves,” as you know, Bob, really means ruled by a majority as opposed to the minority in any particular society, because “ruled by ourselves” doesn’t mean minority rule; it means majority rule. And that means the minority has to go along with it.
And that gets us back to where we were in the beginning of this conversation. To the extent we are going to have policy made by majorities, isn’t it better to have 50 state majority rules in which you can choose with your foot which one suits you best than to have one-size-fits-all majority rule where the only way to escape is to leave the country of your birth?
Bob Zadek: That’s a perfect explanation of how progressives have come to create and to promote the concept of a living constitution. I would express the same thought, perhaps more harshly, that progressives simply say, “We reject much of America’s founding principles. We reject it.” But a position that says, “Tear up the Constitution, let’s have a constitutional convention and do a do-over,” that would not fly. So the progressives, having rejected much of what makes our country our country—having rejected much of it, not all of it, but much of it—they then say, “How do we go about paying lip service to the Constitution because it is a non-starter to just reject it outright?” So the way to reject it without rejecting it is just to minimize it and to say, “Well, what they meant was this today.” That is a far more subtle, very stealthy way to fundamentally change our government while giving the appearance of doing so under the existing form of government. And that, I think, is what’s going on. It’s not as if progressives studied constitutional theory and came up with this intellectual argument. The Constitution is in the way, and this is the most politically expedient way of getting the Constitution out of the way by simply interpreting it out of existence. Now, that’s rather harsh and maybe too extreme—I don’t think it is, but it could be criticized as being extreme. But that, I think, is what’s going on. So the progressive point of view is simply radical change from founding principles into a different form of government, but to do so somewhat gradually and without the country being aware of it. Now, that might be too harsh, Randy, or too extreme, but that’s my view of what’s going on with the whole concept of living constitution.
Randy Barnett: Well, I couldn’t find any fault with anything you just said. I would think that that’s exactly right. I don’t think it’s overly harsh; I think it’s just calling it the way it is. I mean, let’s put it this way, to put it down succinctly: if you told your spouse, “I love you, I love you dearly, and I want to fundamentally transform you,” then maybe that suggests you actually don’t love your spouse as you profess to do. What you want is a different spouse.
Bob Zadek: That’s a perfect way to put it. You did a much better job than I did with my own thought. Thank you so much. Randy, we are rapidly running out of time. I want to take this opportunity to sincerely thank you, both for all that you have taught me, for your wonderful writings that inform the country about what’s going on. You have taken issues that may seem intimidating and complex and made them accessible to all voters, to the benefit of the entire country. This is Bob Zadek saying thank you so much to Professor Randy Barnett at Georgetown Law School for his books. Be sure to read his An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. Thank you so much to Randy.
Randy Barnett: You’re very welcome. Thanks, Bob.
Bob Zadek: And thank you to my friends out there for giving us an hour of your time this weekend morning. So long for now. I’ll be back again next Sunday morning.