Randy Barnett
Restoring the lost constitution
Liberty enforced by law.
Minarcho-CapitalistOne of 729 ideologies · enter the Minarcho-Capitalist hall →- Role
- Legal scholar
- Era
- b. 1952
- Region
- United States
- Social band
- Centre (no modifier)
- Placement
- +90 · −74 · −6
§ Where Randy Barnett stands
3 axesBarnett defends free markets through constitutional limits on economic regulation. Restoring the Lost Constitution (2004) argues that the Commerce Clause originally covered trade and exchange rather than all economic activity, and that the Fourteenth Amendment's Privileges or Immunities Clause protects economic liberty, and from 2010 he developed the argument that Congress could not compel individuals to buy health insurance.
Barnett's presumption of liberty, set out in Restoring the Lost Constitution (2004), would require government to show that any restriction of liberty is necessary and proper, rather than requiring citizens to prove a specific right. He has proposed a Repeal Amendment letting two-thirds of the states cancel federal laws, and his earlier The Structure of Liberty (1998) sketched a polycentric legal order with competing providers of law.
Barnett's social stance is libertarian rather than culturally driven. He represented medical-marijuana patients in Gonzales v. Raich (2005) and welcomed the Supreme Court's 2003 decision in Lawrence v. Texas striking down sodomy laws, but on grounds of liberty and original meaning rather than any progressive social programme, and he works closely with conservatives in the Federalist Society.
How close are you to Randy Barnett?
Three statements, one per axis. Answer them and we’ll drop you on the compass next to them.
§ The story
LivingRandy E. Barnett (born 1952) is an American legal scholar and one of the leading theorists of libertarian constitutionalism and originalism. Born in Chicago and educated at Northwestern University and Harvard Law School, he worked as a criminal prosecutor in Cook County, Illinois, before turning to teaching, first at Chicago-Kent College of Law and then at Boston University. In 2006 he joined Georgetown University Law Center, where he became Carmack Waterhouse Professor of Legal Theory and director of its Center for the Constitution.
Barnett's books, notably The Structure of Liberty (1998) and Restoring the Lost Constitution (2004), argue that the US Constitution should be read by its original public meaning and with a presumption of liberty that puts the burden on government to justify restrictions. He argued the medical-marijuana case Gonzales v. Raich before the Supreme Court in 2004, losing in 2005, and devised the Commerce Clause challenge to the Affordable Care Act's individual mandate, representing the National Federation of Independent Business in the lower courts. In NFIB v. Sebelius (2012) five justices accepted that argument, though the mandate survived as a tax.
Notable for
- 01'Restoring the Lost Constitution'
- 02Presumption of liberty
- 03Argued NFIB v. Sebelius
Key works & moments
- 1977Graduates from Harvard Law School, then prosecutes felonies in Cook County, Illinois.
- 1998Publishes The Structure of Liberty: Justice and the Rule of Law.
- 2004Argues Gonzales v. Raich before the Supreme Court; publishes Restoring the Lost Constitution.
- 2006Joins Georgetown University Law Center.
- 2012NFIB v. Sebelius accepts his Commerce Clause argument but upholds the mandate as a tax.
- 2016Publishes Our Republican Constitution.
§ Minds closest to Randy Barnett
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§ Also in the Minarcho-Capitalist hall
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§ Common questions
4 answersWhat is Randy Barnett's political ideology?
Randy Barnett is a libertarian constitutionalist who reads the US Constitution as a charter for protecting individual liberty: on the 99ideologies three-axis compass, a Minarcho-Capitalist. Economically he sits firmly on the market side (+90), defending economic liberty against federal regulation. On governance he is strongly libertarian (−74), placing a presumption of liberty against every law, and socially he sits close to the centre (−6), defending personal freedoms on grounds of liberty rather than of any cultural programme.
Is Randy Barnett left-wing or right-wing?
He is on the libertarian right. Barnett's case against the Affordable Care Act's mandate and his defence of economic liberty made him a hero to conservatives, and he is closely associated with the Federalist Society. But his libertarianism also leads him to positions the left shares: he represented medical-marijuana patients in Gonzales v. Raich and praised the decision striking down sodomy laws in Lawrence v. Texas. He describes himself as a libertarian rather than a conservative.
What is the presumption of liberty?
It is Barnett's proposal that courts should presume any exercise of liberty is protected unless the government shows that its restriction is both necessary and proper. Set out in Restoring the Lost Constitution (2004), it reverses the modern practice in which most laws are upheld if they have any rational basis, and it draws on the Ninth Amendment's protection of unenumerated rights. Barnett argues that this is how the Constitution was meant to bind government, so that citizens need not prove a right before acting.
Which minds are closest to Randy Barnett?
On the 99ideologies three-axis compass, the minds closest to Randy Barnett are Loren Lomasky (99% alike), The Night-Watchman State (archetype) (99% alike) and Tibor Machan (97% alike). The furthest is Pol Pot (0% alike).