Randy Barnett

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Randy Barnett
Randy Barnett
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Randy E. Barnett (born February 5, 1952) is a lawyer, a law professor at Georgetown University Law Center, and a legal theorist in the United States. He writes about the libertarian theory of law and contract theory, constitutional law, and jurisprudence.

After attending Northwestern University in Evanston, Illinois, and Harvard Law School in Cambridge, Massachusetts, Barnett worked as a prosecutor in Chicago, Illinois. Barnett's first academic position was at the Chicago-Kent College of Law of the Illinois Institute of Technology. He later became the Austin B. Fletcher Professor of Law at Boston University, where he served as the faculty adviser for the Federalist Society. He joined the faculty of Georgetown University Law Center in 2006. Barnett is a Senior Fellow of the Cato Institute and the Goldwater Institute. His book The Structure of Liberty won the Ralph Gregory Elliot Book Award in 1998.

Contents

[edit] Jurisprudence

In The Structure of Liberty, Randy Barnett offers a libertarian theory of law and politics. Barnett calls his theory the liberal conception of justice, emphasizing the relationship between legal libertarianism and classical liberalism. Barnett argues that private adjudication and enforcement of law, with market forces eliminating inefficiencies and inequities, is the only legal system that can provide adequate solutions to the problems of interest, power, and knowledge.

Barnett discusses theories of constitutional legitimacy and methods of constitutional interpretation in Restoring the Lost Constitution.

There have been several criticisms and reviews of Barnett's theory, including:

  • N. Stephen Kinsella, Knowledge, Calculation, Conflict, and Law, 2 Q.J. AUSTRIAN ECON. 49 (1999).
  • Richard Epstein, "The Libertarian Quartet", REASON, Jan. 1999.
  • David N. Mayer, Book Review, The Structure of Liberty, 20 CATO J. 279 (2000).
  • Lawrence B. Solum, Book Review, The Structure of Liberty: Justice and the Rule of Law, 97 Mich. L. Rev. 1780 (1999)
  • John K. Palchak & Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order, 38 GONZ. L. REV. 289 (2002)

[edit] Constitutional theory

Barnett has also done work on the theory of the United States Constitution, culminating in his book Restoring the Lost Constitution. He argues for an originalist theory of constitutional interpretation, and for constitutional construction based on a presumption of liberty (not popular sovereignty).

Barnett was also a lead lawyer for the plaintiffs in Gonzales v. Raich, which won a victory before the Ninth Circuit, ruling that federal action against legal marijuana patients violated the Commerce Clause. Barnett's side, however, lost when the Supreme Court ruled on June 6, 2005, that Congress had the power to prevent states from legalizing medical marijuana.

Barnett also focuses on the history and original meaning of the Second and Ninth Amendments to the United States Constitution. Barnett has advanced the view that the Second Amendment protects an individual right to bear arms, albeit one subject to federal regulation under Congress's power to organize the militia in Article I, Sec. 8 of the Constitution.

[edit] 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:[1]

“ The purpose of the Ninth Amendment was to ensure that all [enumerated and unenumerated] individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal powers. ”

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:

“ It was only with passage of the Fourteenth Amendment ... that the federal government obtained any jurisdiction to protect the unenumerated retained natural rights of the people from infringement by state governments. ”

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 given different answers to this question. On the one hand, Professor Barnett has indicated that federal courts did have such authority, when he said that enumerated rights "had the same stature and force" in the district even before they were enumerated. On the other hand, Barnett has indicated that the case of Bolling v. Sharpe (dealing with integration of public schools in the District of Columbia) should perhaps be overturned, which suggests that federal courts did not have authority to enforce natural rights against congressional regulation of the federal district.[2]

The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. In 2003, Professor Barnett wrote:[3]

“ Just as the Fourteenth Amendment extended protection of the enumerated rights of the first eight amendments to violations by state governments, so too did it extend federal protection of the pre-existing unenumerated rights "retained by the people." ”

If no such federal constitutional protection of unenumerated rights existed in the federal district prior to the Fourteenth Amendment, then only enumerated rights may have been extended by the Fourteenth Amendment.

[edit] Contract theory

Barnett also writes about contract theories. In that field 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, i.e. 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.

[edit] Criticism

Austrian School economist and libertarian legal theorist Walter Block has criticized Barnett's reasoning for his challenge to the legality of the death penalty, which Barnett reasons are illegitimate because the individual's right to life is inalienable and therefore "non-forfeitable" even in cases where the forfeiture is through voluntary action on the part of the individual. Block argues that by this reasoning, even suicide ought to be illegal since such an act constitutes a forfeiture of one's life.[4]

[edit] Biographical Information

Barnett is married to Beth Barnett and they have one son and one daughter. His son Gary Barnett attends Georgetown University Law Center. His daughter Laura Barnett is currently living in Washington, D.C. and works for the Institute for Humane Studies. He also teaches a Contracts course to first year students at Georgetown University Law Center.

[edit] Footnotes

  1. ^ Randy Barnett, The Ninth Amendment: It Means What It Says, 85 Texas Law Review 1 (2006)
  2. ^ Legal Affairs Debate Club, Constitution in Exile? Cass Sunstein and Randy Barnett Debate. (May 4, 2005)
  3. ^ Randy Barnett, Proper Scope of the Police Power, 79 Notre Dame Law Review 429 (2004)
  4. ^ Block, Walter. "A Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein." Journal of Libertarian Studies. Volume 17, no. 2. Spring 2003. [1]

[edit] Bibliography

[edit] Books

[edit] Articles

[edit] Movies

InAlienable(film), 2008, Barry's Assistant [2], [3]

[edit] See also

[edit] External links