Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at
Georgetown University
Georgetown University is a private university, private research university in the Georgetown (Washington, D.C.), Georgetown neighborhood of Washington, D.C. Founded by Bishop John Carroll (archbishop of Baltimore), John Carroll in 1789 as Georg ...
, where he teaches constitutional law and contracts, and is the director of the Georgetown Center for the Constitution. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States’ Attorney's Office in Chicago. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.
Barnett's publications includes eleven books, more than one hundred articles and reviews, as well as numerous op-eds. His most recent book is ''The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit'' (2021) (with Evan Bernick). His other books on the Constitution are ''An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know'' (2019) (with Josh Blackman), ''
Restoring the Lost Constitution: The Presumption of Liberty'' (2nd ed. 2013), ''The Structure of Liberty: Justice and the Rule of Law'' (2nd ed. 2014), ''Our Republican Constitution: Securing the Liberty and Sovereignty of We the People'' (2016), and ''Constitutional Law: Cases in Context'' (3rd ed. 2018) (with Josh Blackman). His books on Contracts are ''The Oxford Introductions to U.S. Law: Contracts'' (2010), ''Contracts: Cases and Doctrine'' (6th ed. 2016) (with Nate Oman).
In 2004, he argued the medical marijuana case of ''
Gonzalez v. Raich'' before the U.S. Supreme Court. In 2012, he was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act in NFIB v. Sebelius. He’s appeared in numerous documentaries, including PBS’s ''Constitution USA with Peter Sagal'' and ''A More or Less Perfect Union'' with Judge Douglas Ginsburg; and he portrayed a prosecutor in the 2010 science-fiction feature film, ''InAlienable: The Movie''. He blogs on the
Volokh Conspiracy
The Volokh Conspiracy ( ) is a blog co-founded in 2002 by law professor Eugene Volokh, covering legal and political issues from an ideological orientation it describes as "generally Libertarianism in the United States, libertarian, Conservatism i ...
.
Life and career
Randy Barnett was born on February 5, 1952, in
Chicago, Illinois
(''City in a Garden''); I Will
, image_map =
, map_caption = Interactive Map of Chicago
, coordinates =
, coordinates_footnotes =
, subdivision_type = Country
, subdivision_name ...
. After high school, he attended
Northwestern University
Northwestern University is a private research university in Evanston, Illinois. Founded in 1851, Northwestern is the oldest chartered university in Illinois and is ranked among the most prestigious academic institutions in the world.
Charte ...
, graduating in 1974 with a
B.A.
Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four yea ...
in
philosophy
Philosophy (from , ) is the systematized study of general and fundamental questions, such as those about existence, reason, knowledge, values, mind, and language. Such questions are often posed as problems to be studied or resolved. Some ...
. He then studied law at the
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
, graduating with a
J.D. in 1977. After law school, Barnett returned to Chicago and worked as an Illinois state prosecutor for
Cook County, Illinois
Cook County is the most populous county in the U.S. state of Illinois and the second-most-populous county in the United States, after Los Angeles County, California. More than 40% of all residents of Illinois live within Cook County. As of 20 ...
. He spent the 1981–82 academic year as a research fellow at the
University of Chicago Law School
The University of Chicago Law School is the law school of the University of Chicago, a private research university in Chicago, Illinois. It is consistently ranked among the best and most prestigious law schools in the world, and has many dist ...
, then, in the fall of 1982, began his academic career as an assistant professor of law at the
Chicago-Kent College of Law
Chicago-Kent College of Law is the law school affiliated with the Illinois Institute of Technology. It is the second oldest law school in the state of Illinois. It is ranked 91st among U.S. law schools, and its trial advocacy program is ranked in ...
. In 1993, Barnett was hired as a professor of law at the
Boston University School of Law. In 2006, Barnett left Boston and began teaching at the
Georgetown University Law Center
The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
, where he remains today.
Jurisprudence
In ''The Structure of Liberty'', Barnett offers a
libertarian theory of law and politics. Barnett calls his theory "the liberal conception of justice" and emphasizes the relationship between legal libertarianism and
classical liberalism
Classical liberalism is a political tradition
Political culture describes how culture impacts politics. Every political system is embedded in a particular political culture.
Definition
Gabriel Almond defines it as "the particular patt ...
. He argues private adjudication and enforcement of law, with
market
Market is a term used to describe concepts such as:
*Market (economics), system in which parties engage in transactions according to supply and demand
*Market economy
*Marketplace, a physical marketplace or public market
Geography
*Märket, an ...
forces eliminating inefficiencies and inequities, to be the only legal system that can provide adequate solutions to the problems of interest, power, and knowledge.
He discusses theories of constitutional legitimacy and methods of constitutional interpretation in ''Restoring the Lost Constitution''.
There have been several criticisms and reviews of his theory, including
Stephan Kinsella
Norman Stephan Kinsella (; born 1965) is an American intellectual property lawyer, author, and deontological anarcho-capitalist. His legal works have been published by Oxford University Press, Oceana Publications, Mises InstituteQuid Pro Book ...
,
Richard Epstein
Richard Allen Epstein (born April 17, 1943) is an American legal scholar known for his writings on torts, contracts, property rights, law and economics, classical liberalism, and libertarianism. He is the Laurence A. Tisch Professor of Law at ...
,
David N. Mayer,
Lawrence B. Solum
and John K. Palchak and Stanley T. Leung.
Supreme Court cases
Barnett was also lead lawyer for the plaintiffs in ''Ashcroft v. Raich'' (later ''
Gonzales v. Raich''), which he won before the
Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
, which ruled that federal action against legal
marijuana
Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various tra ...
patients violated the Commerce Clause. Barnett's side, however, lost on appeal at the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
, which ruled that Congress had the power to enforce federal
marijuana prohibition in states that had legalized
medical marijuana
Medical cannabis, or medical marijuana (MMJ), is cannabis and cannabinoids that are prescribed by physicians for their patients. The use of cannabis as medicine has not been rigorously tested due to production and governmental restrictions ...
.
He was also involved in the famous Affordable Care Act case
National Federation of Independent Business v. Sebelius
''National Federation of Independent Business v. Sebelius'', 567 U.S. 519 (2012), was a List of landmark court decisions in the United States, landmark United States Supreme Court decision in which the Court upheld Congress's power to enact most ...
.
Constitutional theory
Barnett has also done work on the theory of the United States Constitution, culminating in his books ''
Restoring the Lost Constitution'' and ''Our Republican Constitution''. He argues for an
originalist
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
theory of
constitutional interpretation
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
and for constitutional construction based on a
presumption of liberty, not
popular sovereignty
Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
.
Barnett also focuses on the history and original meaning of the
Second
The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds ...
and
Ninth Amendments to the United States Constitution. He has advanced the Standard Model interpretation that the Second Amendment protects an individual right to bear arms, subject to federal regulation under Congress's power to organize the militia in
Article I, Section 8 of the Constitution.
Ninth Amendment
Barnett is a proponent of the view that the
Ninth Amendment's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote:
Regarding what stature and force natural rights had before some of them were enumerated, Barnett says that federal courts did not have authority to enforce such rights against the states. He wrote in the same 2006 article:
A related issue is whether the original unamended Constitution gave federal courts authority to enforce unenumerated natural rights against congressional regulation of the federal district. Barnett has indicated that federal courts had such authority and that enumerated rights "had the same stature and force" in the district even before they were enumerated. He has indicated that the case of ''
Bolling v. Sharpe'' (dealing with integration of public schools in the
District of Columbia
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
) is hard to justify textually from the Constitution, and if it were to be overturned, Congress would create more laws desegregating the district, which would be justified in his view of the Constitution.
The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution.
Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868.
Text of the clause
The cl ...
of the Fourteenth Amendment. In 2003, Barnett wrote:
If no such federal constitutional protection of unenumerated rights existed in the federal district prior to the Fourteenth Amendment, only enumerated rights may have been extended by it.
Repeal Amendment
Barnett has proposed a Repeal Amendment to the United States Constitution, which would give two thirds of the states the power to repeal any federal law or regulation.
[Barnett, Randy and Howell, William J. (2010-09-16) he Case for a "Repeal Amendment" '']Wall Street Journal
''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...
'' According to Barnett, the proposed amendment "provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse."
[ He described the intent of the amendment as follows:
Barnett's proposal has received interest from many politicians and academics, even those who do not share his ]libertarian
Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's e ...
beliefs. " number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor
Eric Ivan Cantor (born June 6, 1963) is an American lawyer and former politician who represented Virginia's 7th congressional district in the United States House of Representatives from 2001 to 2014. A Republican, Cantor served as House Minori ...
" have endorsed the proposal, as has Attorney General of Virginia
The attorney general of Virginia is an elected constitutional position that holds an executive office in the government of Virginia. Attorneys general are elected for a four-year term in the year following a presidential election. There are no ...
Ken Cuccinelli
Kenneth Thomas Cuccinelli II ( ; born July 30, 1968) is an American lawyer and politician who served as the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security from 2019 to 2021. A member of the Republican Party, h ...
. Republican Congressman Rob Bishop
Robert William Bishop (born July 13, 1951) is an American politician who served as the U.S. representative for from 2003 to 2021. A member of the Republican Party, he became the dean of Utah's congressional delegation after the retirement of O ...
of Utah
Utah ( , ) is a state in the Mountain West subregion of the Western United States. Utah is a landlocked U.S. state bordered to its east by Colorado, to its northeast by Wyoming, to its north by Idaho, to its south by Arizona, and to it ...
introduced the amendment in the House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
. University of Texas Law Professor Sanford Levinson
Sanford Victor Levinson (born June 17, 1941) is an American legal scholar known for his writings on constitutional law. A professor at the University of Texas Law School, Levinson is notable for his criticism of the United States Constitution as ...
has said that the Repeal Amendment "ha the merit of recognizing that structures matter.".
Bill of Federalism
The Bill of Federalism is a list of ten proposed amendments An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
to the United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
by Barnett. It would enshrine in the Constitution certain ideas based on states' rights
In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
and free market
In economics, a free market is an economic system in which the prices of goods and services are determined by supply and demand expressed by sellers and buyers. Such markets, as modeled, operate without the intervention of government or any o ...
libertarianism. Barnett drafted the bill in response to the Tea Party movement
The Tea Party movement was an American fiscally conservative political movement within the Republican Party that began in 2009. Members of the movement called for lower taxes and for a reduction of the national debt and federal budget defi ...
's emphasis on limiting federal powers. The present draft of the document was published on May 13, 2009 and incorporated much of the feedback that Barnett had received in response to the previous draft. The document is an expansion of an earlier 'Federalist Amendment' that Barnett composed as part of an article he wrote in the ''Wall Street Journal
''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...
''.
Barnett advocates for the states to call for a Constitutional Convention in which they would propose the amendments comprising the bill. Alternatively, the United States Congress could propose the amendments to the states, as they have done every time a Convention to propose amendments has been called for.
The amendments, summarized by number below, would do the following;
# Disallow federal income taxes
An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Ta ...
(repeal Sixteenth Amendment), as well as gift, estate, and consumption
Consumption may refer to:
*Resource consumption
*Tuberculosis, an infectious disease, historically
* Consumption (ecology), receipt of energy by consuming other organisms
* Consumption (economics), the purchasing of newly produced goods for curren ...
taxes; allow FairTax; require a three-fifths supermajority
A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
to raise or set new taxes
# Set limits on the Interstate Commerce Clause
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
# Disallow unfunded mandate In the United States, federal mandates are orders that induce "responsibility, action, procedure or anything else that is imposed by constitutional, administrative, executive, or judicial action" for state and local governments and/or the private se ...
s and conditions on funding.
# Close a constitutional loophole
A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.
Originally, the word meant an arrowslit, a narrow ver ...
that allows treaties to override established limits on power
# Extend free speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
consideration to campaign contributions
Campaign finance, also known as election finance or political donations, refers to the funds raised to promote candidates, Political party, political parties, or policy initiatives and referendums. Political parties, charitable organizations, a ...
and to cover any medium of communication (including the Internet
The Internet (or internet) is the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a '' network of networks'' that consists of private, pub ...
)
# Allow a resolution of three fourths of the states to rescind
In contract law, rescission is an Equity (law), equitable legal remedy, remedy which allows a contractual party to cancel the contract. Parties may rescind if they are the victims of a vitiating factor, such as misrepresentation, Mistake (contrac ...
any federal law or regulation.
# Establish term limits
A term limit is a legal restriction that limits the number of terms an officeholder may serve in a particular elected office. When term limits are found in presidential and semi-presidential systems they act as a method of curbing the potenti ...
for Senators and Representatives.
# Provide the President with a line-item veto
The line-item veto, also called the partial veto, is a special form of veto power that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. Many countries have different ...
to balance the budget on any year in which it is unbalanced.
# Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
# Restrict judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
by mandating an originalist
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
method of interpretation.
History
On April 16, 2009, Barnett appeared on the Glenn Beck Show to address the question, "What redress do states have who are tired of getting kicked around by the federal government?" Barnett proposed the idea of passing a constitutional amendment and argued that by threatening to hold a constitutional convention, the states could force Congress to propose the amendment to them.
Barnett then wrote an article for the ''Wall Street Journal'', "The Case for a Federalism Amendment." It was published in the editorial section on April 24, 2009. In it he expounded on his idea for forcing Congress to propose an amendment to the states, and included a draft for a five-sectioned "Federalist Amendment", which would strengthen states' rights
In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
and restrict federal power
Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments ( provincial, state, cantonal, territorial, or other sub-unit governments) in a single p ...
.
On May 13, 2009, Barnett released the intended final draft. Barnett removed amendment 3, which declared the existence of police powers of states. He condensed amendments 4 and 5, which disallowed income and estate taxes respectively, into one amendment now listed as number 1. That made room for two additional amendments not present in the earlier draft. One prevents treaties from enlarging Congress' power in what might be thought of as a Constitutional loophole
A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.
Originally, the word meant an arrowslit, a narrow ver ...
. Another applies the right to free speech to any medium, including the Internet, and also makes campaign contribution a form of protected free speech.
The Bill of Federalism Project has been incorporated as a nonprofit agency in the State of Tennessee.
Ratification strategy
Barnett would like the states to call for a Constitutional Convention. That was his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that to be a necessary step, as Congress would not voluntarily propose amendments that largely weaken its power.
Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.
Criticism
The John Birch Society
The John Birch Society (JBS) is an American right-wing political advocacy group. Founded in 1958, it is anti-communist, supports social conservatism, and is associated with ultraconservative, radical right, far-right, or libertarian ide ...
has criticized the idea of calling for a constitutional convention, calling it a "dangerous temptation" and a "threat to our Constitution."
Amendments of the Bill of Federalism
=Amendment I – Restrictions on Tax Powers of Congress
=
Section 1 of the amendment would disallow federal income
Income is the consumption and saving opportunity gained by an entity within a specified timeframe, which is generally expressed in monetary terms. Income is difficult to define conceptually and the definition may be different across fields. For ...
, gift, estate, and consumption
Consumption may refer to:
*Resource consumption
*Tuberculosis, an infectious disease, historically
* Consumption (ecology), receipt of energy by consuming other organisms
* Consumption (economics), the purchasing of newly produced goods for curren ...
taxes. It would explicitly permit a national sales tax
A sales tax is a tax paid to a governing body for the sales of certain goods and services. Usually laws allow the seller to collect funds for the tax from the consumer at the point of purchase. When a tax on goods or services is paid to a govern ...
, an idea which has been proposed in the United States as the FairTax. Section 2 would require a supermajority
A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
of three-fifths of both houses of Congress for any new tax or tax increase. Section 3 repeals the Sixteenth Amendment and delays the implementation of the whole amendment for five years after it is ratified to give Congress time to dismantle the IRS.
The amendment is partially a combination of the fifth and sixth amendments of the previous draft.
=Amendment II – Limits of Commerce Power
=
The Constitution grants Congress the power
Power most often refers to:
* Power (physics), meaning "rate of doing work"
** Engine power, the power put out by an engine
** Electric power
* Power (social and political), the ability to influence people or events
** Abusive power
Power may a ...
to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." That is amplified by the additional power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. ... " The amendment would overrule the current interpretation of the commerce clause by removing three applications of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.
# In ''Wickard v. Filburn
''Wickard v. Filburn'', 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New ...
'', the Supreme Court ruled that Congress could regulate the production of wheat by a farmer named Roscoe Filburn despite the fact that Filburn did not intend to sell any of the wheat across state lines. The court ruled that since in the aggregate, unregulated wheat could have an effect on interstate commerce, it was covered by the commerce clause.
# The Court has held, "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." In one instance, the Court upheld federal safety regulations of vehicles used in intrastate commerce, on the grounds that they run on highways of interstate commerce.
# In '' Gonzales v. Raich'', the court ruled that the commerce clause extended to noneconomic regulatory schemes of congress.
=Amendment III – Unfunded Mandates and Conditions on Spending
=
The first clause of the amendment would disallow unfunded mandates so Congress could not make laws, even within its power, if they would require the states or their political subdivisions, such as cities, to spend money unless they were fully reimbursed by Congress.
The court has ruled in '' Printz v. United States'' that the federal government cannot directly force a state to pass any law or regulation. However, by the precedent set in ''South Dakota v. Dole
''South Dakota v. Dole'', 483 U.S. 203 (1987), was a case in which the United States Supreme Court considered the limitations that the Constitution places on the authority of the United States Congress when Congress uses its authority to influence ...
'', Congress can make routine, unrelated funding conditional upon state compliance with regulation that Congress cannot itself enact. The National Minimum Drinking Age Act
The National Minimum Drinking Age Act of 1984 () was passed by the United States Congress and was later signed into law by President Ronald Reagan on July 17, 1984. The act would punish any state that allowed persons under 21 years to purchase a ...
was the subject of ''Dole'' and uses such a mechanism, as did the National Maximum Speed Law
The National Maximum Speed Limit (NMSL) was a provision of the federal government of the United States 1974 Emergency Highway Energy Conservation Act that effectively prohibited speed limits higher than . It was drafted in response to oil price ...
while it was still law. The second clause of the amendment would prevent Congress from using conditional funding to induce the states to enact any law if it would "restrict the liberties of its citizens."
=Amendment IV – No Abuse of the Treaty Power
=
The Constitution grants to the president the Treaty Clause
The Treaty Clause of the United States Constitution (Article II, Section 2, Clause 2) establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States ...
power "by and with the Advice and Consent of the Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, to make Treaties
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
, provided two thirds of the Senators present concur." The Constitution also grants to the Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Based on that clause, the Supreme Court held in ''Missouri v. Holland
''Missouri v. Holland'', 252 U.S. 416 (1920) is a United States Supreme Court decision on the extent to which international legal obligations are incorporated into federal law..
The case centered on the constitutionality of the Migratory Bird Tre ...
'' that Congress can make laws implementing a treaty even if such laws would otherwise be outside of Congress' power to enact. Many thought the decision to be unwise and feared that the federal government could essentially bypass any Constitutional limits by simply enacting treaties granting itself any powers that it saw fit. Such concerns led to the Bricker Amendment
The Bricker Amendment is the collective name of a number of slightly different proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. None of these amendments ever passed Congress. Each of them ...
of the 1950s, designed to restrict the treaty power. The Bricker Amendment came up a single vote short of the two thirds majority it needed.
The amendment would similarly overturn ''Missouri'', preventing any treaty from enlarging Congress' power. However, the Supreme Court's 1957 '' Reid v. Covert'' decision reversed ''Missouri'' in that treaties must respect the Constitution, to be valid.
=Amendment V – Freedom of Political Speech and Press
=
The amendment would expand the scope of the right to free speech to apply to campaign contributions, thereby making it illegal for charges or imprisonment in terms of campaign finance laws. It would make laws such as McCain-Feingold illegal. McCain-Feingold made it illegal for anybody not directly connected with a campaign to voice issues related to that campaign within 30 days of a primary election and 60 days within a general election. The amendment also extends freedom of speech rights to the internet.
=Amendment VI – Power of States to Check Federal Power
=
The amendment would provide for the states to have a collective veto power over congress without having to go through the courts. At least 38 of the 50 states would disapprove of an act of congress. It continues to attract political support as the " Repeal Amendment."
=Amendment VII – Term Limits for Congress
=
The amendment would simply limit the terms of any representative or senator. A representative would be limited to six terms, plus one year of a previous representative's term. Meanwhile, senators would be limited to two terms, plus three years of a previous senator's term.
That is based on the 22nd Amendment of the US Constitution which limits the President to two terms in office and two years of another President's term, for a total of ten years.
=Amendment VIII – Balanced Budget Line Item Veto
=
The amendment requires a line-item veto
The line-item veto, also called the partial veto, is a special form of veto power that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. Many countries have different ...
to be established for the President. Section 1 establishes a definition of an unbalanced budget by stating that it is when public debt at the end of one fiscal year (September 30 of the calendar year) is greater than the preceding one. Section 2 allows the President to approve or disapprove of any part of any separate legislation except one that allows for the operation of Congress or the judiciary. Section 3 simply sends the disapproved items to the US House for separate consideration. Section 4 forces Congress to pass a line-item veto law after the amendment is ratified. The amendment is a direct result of an overturned law that Bill Clinton
William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
had in his second term as president.
=Amendment IX – The Rights Retained by the People
=
The amendment is a direct cousin of the Tenth Amendment, but it applies to the people of the U.S. and not the states.
Section 1 puts the Declaration of Independence
A declaration of independence or declaration of statehood or proclamation of independence is an assertion by a polity in a defined territory that it is independent and constitutes a state. Such places are usually declared from part or all of th ...
into coded law. That includes its preamble, which allows for people to live their lives the way they see fit. The proposed right of "making binding contracts of their choosing" would appear to resurrect the legal doctrine of economic due process, which during the Lochner era
The ''Lochner'' era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's o ...
, was used by the Supreme Court to strike down a wide variety of state and federal laws affecting business, including child-labor and minimum-wage laws.
Section 2 allows all legal persons of the United States to challenge any law that restricts their rights, and puts the burden of proof (fact) on federal, state, and local governments to argue otherwise. Any attempt to establish the constitutionality of any law is thus rested within the government.
=Amendment X – Neither Foreign Law nor American Judges May Alter the Meaning of Constitution
=
The amendment establishes a strict interpretation of the Constitution as written and bans the practice of some judges having a broad interpretation including establishing foreign laws into their decisions, which could change the meaning of an article or section of the Constitution.
=Amendment XIV
=
With Evan Bernick, Barnett reviews the history and sources of the amendment as well as its misunderstanding and legal misuse in the Belknap Press title ''The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit''. Barnett's reading of Lysander Spooner
Lysander Spooner (January 19, 1808May 14, 1887) was an American individualist anarchist, abolitionist, entrepreneur, essayist, legal theorist, pamphletist, political philosopher, Unitarian and writer.
Spooner was a strong advocate of the labor ...
was instrumental in changing his constitutional theory.
Contract theory
Barnett also writes about contract theories. He has advanced a theory of contract formation that emphasizes the intention to be bound as the key to contract law. He also has worked on the idea of a default rule {{inline, date=June 2021
In legal theory, a default rule is a rule of law that can be overridden by a contract, trust, will, or other legally effective agreement. Contract law, for example, can be divided into two kinds of rules: ''default rules'' ...
, a rule of contract law that binds the parties if their contract does not cover the eventuality or condition that is the subject of the default rule.
Criticism
Austrian School
The Austrian School is a heterodox school of economic thought that advocates strict adherence to methodological individualism, the concept that social phenomena result exclusively from the motivations and actions of individuals. Austrian school ...
economist and libertarian legal theorist Walter Block
Walter Edward Block (born August 21, 1941) is an American Austrian School economist and anarcho-capitalist theorist. He currently holds the Harold E. Wirth Eminent Scholar Endowed Chair in Economics at the School of Business at Loyola Universit ...
has criticized Barnett's arguments for the inalienability of certain rights.[Block, Walter. "A Libertarian Theory of Inalienability: A Critique of ]Rothbard
Murray Newton Rothbard (; March 2, 1926 – January 7, 1995) was an American economist of the Austrian School, economic historian, political theorist, and activist. Rothbard was a central figure in the 20th-century American libertarian ...
, Barnett, Smith
Smith may refer to:
People
* Metalsmith, or simply smith, a craftsman fashioning tools or works of art out of various metals
* Smith (given name)
* Smith (surname), a family name originating in England, Scotland and Ireland
** List of people wi ...
, Kinsella, Gordon, and Epstein The surname Epstein ( yi, עפּשטײן, Epshteyn) is one of the oldest Ashkenazi Jewish family names. It is probably derived from the German town of Eppstein, in Hesse; the place-name was probably derived from Gaulish ''apa'' ("water", in the sen ...
." ''Journal of Libertarian Studies''. Volume 17, no. 2. Spring 2003
/ref>
Family
Barnett is married to Beth Barnett. Their son, Gary Barnett, attended Georgetown University Law Center
The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
and now works as a prosecuting attorney in Brooklyn
Brooklyn () is a borough of New York City, coextensive with Kings County, in the U.S. state of New York. Kings County is the most populous county in the State of New York, and the second-most densely populated county in the United States, be ...
, New York. Their daughter, Laura Barnett, lives in Washington, D.C.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
and works for the Institute for Humane Studies
The Institute for Humane Studies (IHS) is a non-profit organization that promotes the teaching and research of classical liberalism in higher education in the United States. IHS offers funding opportunities, programs, and events for faculty and g ...
.
Bibliography
Books
* '' Our Republican Constitution: Securing the Liberty and Sovereignty of We the People'' (2016)
* '' Restoring the Lost Constitution: The Presumption of Liberty'' (2004)
* '' The Structure of Liberty: Justice and the Rule of Law'' (1998)
* '' Contract Cases and Doctrine'' (1995, 2d ed 1999, 3d ed 2003, 4th ed 2008)
* '' Perspectives on Contract Law'' (1995, 2d ed 2001, 3d ed 2005)
Articles
"Justice Kennedy's Libertarian Revolution: Lawrence v. Texas"
(Social Science Research Network 2003).
* Barnett, "Restitution: A New Paradigm of Criminal Justice" (''Ethics'' 87, no. 4, July 1977).
*
Movies
* InAlienable
''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
(2008) Assistant to Crystal Barry (Marina Sirtis
Marina Sirtis (; born 29 March 1955) is a British actress. She is best known for her role as Counselor Deanna Troi on the television series '' Star Trek: The Next Generation'' and four ''Star Trek'' feature films, as well as other appearances ...
)
''InAlienable'' IMDB entry
References
External links
RandyBarnett.com
Appearances at the U.S. Supreme Court
from the Oyez Project
The Oyez Project at the Illinois Institute of Technology's Chicago-Kent College of Law is an unofficial online multimedia archive of the Supreme Court of the United States, especially audio of oral arguments. The website "aims to be a complete a ...
*
*
{{DEFAULTSORT:Barnett, Randy
1952 births
Living people
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