ZadekpediaRandy Barnett is a constitutional law professor at Georgetown Law School and a legal scholar whose work argues for a narrow reading of federal power and a “presumption of liberty” under the Constitution. He appears on the show both as a Cato University lecturer and as a guest on The Bob Zadek Show, where he discussed originalism, the living constitution, and the Supreme Court confirmation of Amy Coney Barrett.
On the show
1 appearance, 2020.
- 2020-10-09 · Amy Coney Barrett on Trial · 51:49 — Originalism and the Amy Coney Barrett Confirmation.
Their books discussed on the show
- An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (2019) — discussed 2020, 2020
- The Structure of Liberty (1998) — discussed 2020
Early mentions and the Commerce Clause
In an August 2014 episode, Bob Zadek described Barnett as a law professor who led the charge against Obamacare before the Supreme Court, naming him among the highlights of a week of lectures at Cato University Derek Khanna - What’s Stifling Innovation? (2014). The same episode’s introduction lists Barnett alongside Jeffrey Miron as part of the Cato University program.
A November 2014 episode with Damon Root places Barnett at the center of the libertarian legal movement’s challenge to the Commerce Clause. Root identifies Barnett as a law professor at Georgetown and the architect of the legal challenge to the individual mandate, noting that Barnett had argued for a narrow reading of the Commerce Clause for a long time and believed the federal government had grown too powerful under a broad reading Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014). Root recounts that in 2005 Barnett argued a medical marijuana case at the Supreme Court and lost, with Scalia and Kennedy voting against him in favor of broad Commerce Clause power. Seven years later, Root says, Barnett’s arguments had become the default conservative position, and the entire conservative movement lined up against Obamacare. Root also notes that Barnett’s arguments about the Commerce Clause were the same ones he had always been making.
Bob Zadek calls the 2005 medical marijuana decision, which he identifies as the Raich case, a terrible and painful decision Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Originalism and the living constitution
Barnett was interviewed in October 2020 about the philosophy of originalism versus living constitutionalism in the context of Amy Coney Barrett’s Supreme Court confirmation Amy Coney Barrett on Trial (2020). Bob Zadek introduces him as a legal scholar who was a practicing lawyer for many years and now teaches con law, contracts, and legal theory at Georgetown Law School. Zadek lists Barnett’s books, including Our Republican Constitution, Restoring Our Lost Constitution, The Structure of Liberty, and An Introduction to Constitutional Law, subtitled 100 Supreme Court Cases Everyone Should Know.
Barnett argues that progressives invented the concept of a living constitution at the turn of the 20th century, that Woodrow Wilson was a living constitutionalist who was candid about his motivations, and that Wilson said the country should be living under a parliamentary system and called the Constitution a “horse and buggy” constitution for a modern age Amy Coney Barrett on Trial (2020). Barnett says progressives viewed themselves as social Darwinists and thought societies were like organisms that evolve to a higher state, and that this is the deep underlying root of the original idea of the living constitution. He says progressives today are motivated by not wanting to be bound by the dead hand of the past, and that “ruled by ourselves” means majority rule, which means the minority has to go along with it. He argues that it is 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 offers his own view that progressives reject much of America’s founding principles and that the living constitution is a stealthy way to fundamentally change government while giving the appearance of doing so under the existing form of government. Barnett responds that he could not find any fault with what Zadek said and that it is not overly harsh. Barnett compares it to telling a spouse, “I love you, I love you dearly, and I want to fundamentally transform you,” which he says suggests you actually want a different spouse.
Across episodes
The episodes show no development in Barnett’s positions across the episodes. He is mentioned in 2014 as a Cato University lecturer and as the architect of the Commerce Clause challenge, and in 2020 he is interviewed about originalism and the living constitution.