Author Archive | Randy Barnett

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 […]

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 […]

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 […]

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 […]

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 […]

[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 […]

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 […]

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 […]

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 […]

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 […]

Good to know our betters know what’s best for us:

Question:  From whom or what is Section 3 of DOMA defending traditional marriage? Honest answer:  From states who have recognized same sex marriage. See the federalism problem yet?

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. […]

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 […]

Here is a new video promoting the Institute for Justice summer “boot camp” for freedom fighting law students: