Episode 540: Randy E. Barnett
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How Originalism and Libertarianism Changed the Legal Landscape
What does it take to go from a criminal prosecutor to a pioneer of the “originalism” movement and one of the top constitutional law scholars in America?
Randy Barnett is a professor of law at Georgetown University and the director of Georgetown Center for the Constitution. He has written numerous books including, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, and most recently a memoir called A Life for Liberty: The Making of an American Originalist.
Randy and Greg discuss his journey from private to public law, how he discovered and furthered the originalism movement, and his influential roles in landmark cases such as the 2004 medical marijuana challenge before the U.S. Supreme Court and the 2012 Affordable Care Act challenge. They also delve into the nuances of constitutional law and the structural challenges within legal academia.
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Episode Quotes:
What motivates justices beyond doctrine
19:35: What really motivates these justices, apart from the doctrine, which I think doesn't really motivate them, that means the law is not motivating. And what really motivates them is what I call constitutional principle. They carry within their minds some fundamental constitutional principles. And those principles kind of dictate what they think the right answer is. And at that point, they will start marshaling doctrine on behalf of that. But it isn't merely the policy outcome of the case. That's the difference. For the—what? For the legal realists, the pure legal realists. It's just, "What outcome do I like?" But for most justices, it's, "What constitutional principles do I hold dear that I want to see vindicated, or do I believe will be undermined if the other side should prevail?" That's a big difference.
What is originalism?
12:37: Originalism is the view that the meaning of the constitution should remain the same until it is properly changed by amendment.
Can contract law theory help you understand constitutional theory better?
09:46: Being able to do contract law theory and to be able to do it at all enabled me to do constitutional theory way better than people who have known nothing but constitutional law. And if I can put this more in a vernacular, constitutional law is largely bullshit.
The empty concept of activism in legal discourse
29:03: The term activism is a completely empty concept. It is more, like what you said earlier, a label to be peeled off and stuck on a decision that you don't like. And it's a sort of process objection, which allows you to avoid having to talk about the merits of the constitutional argument. You say, "Oh, this judge is overstepping their authority. They're engaged in activism," without, and without having to say, "Well, what's wrong with what they said about the constitution?" Or whatever. And so, because it's empty, anybody can hurl it.
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