Author Archive | Randy Barnett

More on Slavery , the Civil War, and Libertarians

Kudos to Jacob Levy on Bleeding Heart Libertarians, and Ilya (here and here) and Jonathan (here) for their trenchant critiques of the Neo-Confederate sympathies of some who call themselves libertarians.  I agree with Jacob that this is an issue more important for libertarian activists and intellectuals to forthrightly address and forcefully reject than are other pathologies (e.g. birtherism) typically arising at the fringes of ideological movements:

Confederatistas aren’t ignoring libertarian principles or classical liberal arguments altogether. They’re (IMHO, of course– sprinkle imputed “IMHOs” as liberally through this post as you like, since I’m talking about my own priorities and not about the world) misusing them, abusing them, drawing the wrong lessons from them, prioritizing them badly.  And they’re doing so in a way that runs deep in American political culture and history, not in an irrelevant fringy way.


In my view the Confederatistas perpetuate the white southerners’ two-century-long scam of dressing up the cause of racial dominance in classical liberal clothes, perverting the goal of liberty into the project of slavery.  This has been a defining fact of American political life; it has served to discredit some of those classical liberal values and institutions, while also perpetuating a story in which the freedom of African-Americans (postbellum as well as antebellum) lies somehow outside the calculus of American liberty.

I recommend you read the whole thing — especially if you consider yourself to be a libertarian.  I know from my own history in the libertarian movement that there are pockets of libertarians who accept this type of Southern revisionism.  I have myself been criticized by these folks as a “nationalist” libertarian because I accept the Fourteenth Amendment as good law that ought to be followed (far more than it is) despite it being inimical to […]

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Thoughts on Orin’s Thoughts on Existing Fourth Amendment Doctrine

I want to thank Orin for his most informative and helpful analysis of how existing Fourth Amendment doctrine might govern the NSA telephone and Internet surveillance programs.  But….  Actually there is no “but.”  I just figured readers were expecting one. Orin’s analysis is very useful and provides lots of food for thought. Of particular relevance to the argument I advanced in the Wall Street Journal is the existing doctrinal treatment of seizures as distinct from subpoenas.  And it is not clear that data seizures by the CFPB fall under the same existing doctrines that might justify a national security program like PRISM.

Of course, existing doctrine can change in response to new situations, as it always has.  We can ask whether existing doctrine governing, say, pen registers, was created with a program like PRISM in mind?  Do the features of these programs remove them from the rationales that led to previous doctrines governing practices, whether seizures or subpoenas, that are different in scale or kind?  The capability to derive personal privacy-invading profiles from metadata alone might distinguish the two technologies.

Constitutional doctrine is a constitutional construction that is formulated by judges to put the text of the Constitution into effect. Though the meaning of the text of the Constitution may be “fixed,” constitutional construction is always “living” and evolving.  How well does current doctrine work in this new situation (assuming it is relevantly new)?  For example, the Katz doctrine that moved away from the “trespass” model of searches to protecting the “reasonable expectation of privacy” may well have been good insofar as it expanded privacy protection beyond the physical trespass upon one’s “persons, houses, papers and effects” or the physical seizure thereof, but very bad insofar as this judicially-created construction is used to weaken it.  

None of these thoughts, however, […]

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Are the NSA Blanket Data Seizures and the FISA Court’s Approval Unprecedented?

In challenging the constitutionality of the Affordable Care Act in our Heritage Foundation paper, we adopted the Congressional Research Service’s conclusion that such a purchase mandate was literally “unprecedented.”  This claim assumed some significance for three reasons.  If accurate, it might make a constitutional challenge a case of first impression not governed directly by previous judicial decisions.  It also meant that, if compelled purchases were held unconstitutional, it would not affect the exercise other previously approved powers and would make such a ruling less disruptive of existing practice and, therefore, easier for a court to adopt.  Moreover, as I note in two forthcoming articles (drafts available here and here), the Rehnquist Court’s New Federalism represented a “this far and no farther (without compelling justification that would not lead to a national police power)” approach that put the onus on the government to provide a rationale for any expansion of Congressional power beyond what has already been authorized that would not lead to a national police power akin to that of states.  If the purchase mandate was “farther,” the government would have to provide a judicially administrable limiting principle.

Of course, some contested whether purchase mandates were unprecedented, claiming that the Militia Act of 1792 or the 1798 “Act for the Relief of Sick and Disabled Seamen” constituted relevant historical instances of compelled purchases.  In the end, no court found these examples compelling, and all tended to treat the insurance purchase mandate as something truly new, exceptional, and requiring justification.  As a result, our constitutional objections got a more receptive hearing than most law professors expected, eventually being adopted in substance by five justices in NFIB v Sebelius.

On Friday, I published an op-ed in the Wall Street Journal (available here) questioning the constitutionality of the blanket seizures […]

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Unprecedented? My WSJ Op-Ed on the NSA & CFPB Blanket Data Seizures

My op-ed in tomorrow’s Wall Street Journal op-ed on the unconstitutionality of the blanket seizures of private data by the NSA and the CFPB is now online here.  Although I believe this type of mass data seizures may be unprecedented, I don’t make that claim in this column.  But if it is, it makes a legal challenge more feasible.  In my column, I also question whether the approval of these programs in secret “ex parte” proceedings and opinions by the FISA court is a denial of the “due process of law.”

Here is a taste:

 By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call “informational privacy.” Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual “terms of service.” These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers’ trust.


With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.

Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property “without due process of law.” Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of


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My First Appearance at FreedomFest in Las Vegas

Later this week, I will be speaking at FreedomFest at the Planet Hollywood hotel in Las Vegas.  I am looking forward to attending for the first time and seeing friends.  If you are attending here are the programs I will be on:

Friday at 5pm:  I will be the judge in a moot trial: “The Republican Party On Trial,” featuring Steve Moore of the Wall Street Journal as the prosecutor, and Dinesh D’Souza as defense attorney.  Witnesses will be Rand Paul and Steve Forbes and Matt Kibbe for the prosecution and Senator Rand Paul and Grover Norquist for the defense.

On Saturday at 1:30pm, I will be on a panel with Tim and Christina Sandefur on the current legal challenges to Obamacare.

At 4:00pm on Saturday, I will be in a panel discussing the recent revelations about data collection by the NSA and the CFBC.

The whole schedule is here.

If you are a VC reader be sure to come up and say hello. […]

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Federalism Marries Liberty in the DOMA Decision

[With permission of SCOTUSBlog, I am cross-posting my analysis of today’s Windsor DOMA decision, Federalism Marries Liberty in the DOM Decision.  Other essays have or will be posted by William Duncan – Marriage Family Law Foundation, Larry Tribe – Harvard Law School, Suzanne Goldberg – Columbia Law School, Helen Alvare – George Mason University School of Law, Gerard Bradley – Notre Dame Law School, John Eastman – Chapman University School of Law, Eric Restuccia and Aaron Lindstrom – Michigan Solicitor General’s Office, Steve Sanders – Indiana University Maurer School of Law, and Paul Smith – Jenner & Block.]

Because the logic of Justice Kennedy’s opinion for the majority in Windsor is novel, it is likely to confuse observers as it seems to have confused the dissenters.  So in this post, I want to lay bare this logic, by explaining how it resembles, but also differs from, the federalism argument we made in our “Federalism Scholars” amicus brief (cited by the Court at page 23).

In our brief, we contended that DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate […]

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CONSTITUTION USA with Peter Sagal Premiers Tonight on PBS

A new 4-part miniseries, CONSTITUTION USA with Peter Sagal premiers tonight on PBS (check your local listings).  Here is the preview of tonight’s episode on Federalism:

Watch A More Perfect Union – Preview on PBS. See more from Constitution USA with Peter Sagal.

Last summer I was flown to O’Hare, where Sagal picked me up to drive 90 minutes to an old barn in DeKalb County that was chosen to replicate the setting of Roscoe Filburn’s farm, in Wickard v. Filburn. Known best for moderating the NPR show, “Wait, Wait, Don’t Tell Me,” he is a fascinating character who told me about his career as a screen writer. We filmed my interview on a very hot day in the open barn with each of us sitting on our own bale of hay.  By the time Sagal interviewed me, he had done lots of interviews and, judging by their questions, he and his producer clearly knew lots about the Constitution.  He began the interview, “So, Roscoe Filburn had a farm…” and I then interjected “E – I – E -I – O.” When I attended the sneak preview at the Capital Visitors Center recently, the producer told me that he thought at the time that this was a good sign. Actually, the interview was a hoot. I don’t know how much of my interview will be included, but I am told I appear in tonight’s premier episode on Federalism.  Here is a short clip:


Watch Randy Barnett on Federalism on PBS. See more from Constitution USA with Peter Sagal.

 I also don’t know how balanced the series will be.  The two principal consultants are Penn historian Richard Beeman (at the preview, he took a gratuitous shot at the Tea Party) and Yale law professor Akhil Amar. But those who […]

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Remembering Salmon P. Chase

This afternoon, I return to DC from London where I spoke to the conference of the Liberty League on Sunday.  It was a remarkable group of student and other attendees.  It feels odd to be here on the day that Margaret Thatcher died.  Last night I attended a performance of The Audience with the marvelous Helen Mirren as Queen Elizabeth.  The play depicts the weekly audiences she holds with the Prime Minister, twelve in all so far.  It was a wonderful performance, if very mildly left of center as may be the Queen herself for all I know.  Madame Thatcher was not portrayed entirely sympathetically, though neither were any of the PM’s, with the possible exception of the Queen’s favorite, Edward Heath Harold Wilson.  For some reason, Peter Morgan, the author — who opened last night’s performance with a short respectful notice of Thatcher’s passing — chose not to represent Tony Blair at all among the PMs who were portrayed, though several caustic remarks about him were offered during the play.

Today, I remember another much-maligned but now nearly forgotten politician, Salmon P. Chase, as my paper on Chase just appeared in the Case Western Law Review.  You can read it here.   Here is the abstract and table of contents:

The name Salmon P. Chase is barely known and his career is largely forgotten. In this Article, I seek to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why his is a career worth both remembering and honoring, I offer some possible reasons why his remarkable achievements have generally unremembered today.


Introduction: Constitutional Abolitionism………………………..654

I. Chase’s Rise to the Chief Justiceship ………………………………..656

A. Chase’s Early Years……………………………………………………………… 656

B. […]

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Answers to Ed Whelan’s Questions

Over on Bench Memos Ed Whelan asks some questions.

QUESTION:  So, Randy and Jonathan, do you agree with your co-signatory Ilya Somin that if DOMA is invalidated on federalism grounds, a couple that enters into a lawful same-sex marriage in one state will be entitled to receive federal marriage benefits when they move to a state that does not recognize same-sex marriages? Do you agree, in other words, that the federalism argument that you’re advancing against DOMA would have the federalism-defeating effect of nationalizing federal marriage benefits for same-sex marriages?

ANSWER:   Ed, thanks for asking for our views on this question.  Jonathan, and also Dale, can speak for themselves, but I do not agree with Ilya about this, for the reason you intimate.  I agree with you here when you say “I doubt that Somin is actually correct on this point (which he merely asserts).”  As you know, I often agree with you, as I did about the standing issue with respect to Proposition 8.  But this provides me the opportunity to stress that the signatories of the federalism scholars brief hold a variety of views on the Constitution and federalism in general, and on same-sex marriage in particular.  What we all agree about is that Section 3 of DOMA — as drafted — is unconstitutional for the reasons we expressed in our brief, which we all actively participated in drafting.   No doubt there are other issues like this one on which we will disagree.

QUESTION:  Or do you agree with SSM supporter Noah Feldman that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation”?

ANSWER:  I do not agree about with Noah Feldman about this.  Your own position contemplates the bifurcation of state marriage regulations and federal benefits, which you apparently


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The Chief Justice’s Excellent Hypothetical: Under Our System of Federalism, Can You Be Both Married and Unmarried at the Same Time?

In oral argument yesterday, the Chief Justice asked Solicitor General Verrilli what Ed Whelan on Bench Memos thought was a killer question:

CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

Or do you think that they couldn’t do that?

GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?

GENERAL VERRILLI: I don’t think it would raise a federalism problem.

Writes Ed:  “But it can’t be the case that a federal definition of marriage for purposes of federalism law presents a federalism problem under DOMA but not under the Chief’s hypothetical.”

I think Ed is right about this, but it is the Solicitor General who is wrong.  Congress no more has the power to expand the definition of marriage than it has to contract it.  This is because defining marriage — like defining property — is a traditional function of the states.  Consider how Paul Clement opened his argument:

I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.

This is wrong.  If Paul is right, then one can be married under federal law and unmarried under state law.  Imagine how this […]

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Is There A General Definitions Power?

In his post Nick again asserts that Congress has an power to define terms for purposes of federal law:  “If DOMA is unconstitutional, it is because this particular federal definition of “marriage” offends some substantive constitutional provision. But that has nothing to do with federalism.”  But there is no enumerated Definitions Power in the Constitution.  Any definition of terms must be part of Congress’s: “power to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers.  Whether any particular definition results in a claim of power that improperly extends beyond Congress’s power to interfere with the reserved powers of the states is a matter than needs to be considered statute by statute.  In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law.  Most definitions can easily be shown to be both necessary and proper to an enumerated power.

Nick asks, “So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two?” Yes exactly.  It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them, and regardless of whether it was a condition on federal spending.  And we know why. Because Congress was seeking to defend the traditional definition of marriage.  Hence the name: The Defense of Marriage Act.  But “the defense of marriage” is not among the purposes or “objects” for federal laws that are delegated by the Constitution to Congress.  Here is what John Marshall said about this possibility in McCulloch

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass


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Why Proponents of Proposition 8 Should Have Standing to Defend It

Ed Whelan has a post today on Bench Memos rejecting the argument made by Walter Dellinger (and endorsed to some degree by Michael McConnell) in an amicus brief that proponents of Proposition 8 defining marriage as limited to a man and wife lack standing to defend the proposition they sponsored and campaigned successfully to see adopted by the voters of California.  Although I disagree with both Ed and my colleague Nick Rosenkranz about whether Congress has a general Definitions Power that enables it to define any term “for purposes of [any and all] federal law” regardless of whether such a definition improperly invades the traditional province of the states, I agree with Ed here. Walter’s brief is forceful, as is to be expected from him, and from my Georgetown colleague Irv Gornstein who is counsel of record, but it fails to come to grips with a fundamental issue.  This is an issue that Ed glosses over in his more technical reply to Walter, but which is strongly emphasized by Ed Meese and John Eastman in their amicus brief to which Ed links. The principle is this:  In some states, the people — or more accurately the voters on their behalf — have a constitutional power to enact laws and amend the state constitution by popular initiative or referenda.  This is a power specifically intended to be used when the purported “agents” of the people in any branch of state government are not doing what the voters want, whether this be to make new or enforce existing law.  In these states, in addition to the general power to defeat current state office holders, or impeach state supreme court justices, citizens have the added power to put constraints on these government actors by the initiative process. Proposition 8 was a specific example […]

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