Author Archive | Randy Barnett

Because I am facing a hard deadline for revisions for a second edition of Restoring the Lost Constitution, I have not been able to formulate a reply to the criticisms of the amicus brief I joined — along with co-bloggers Ilya, Jonathan and Dale — in which we contended that DOMA exceeded the enumerated powers of […]

Josh Blackman has posted here the excerpt from the transcript of second hour of Rand Paul’s filibuster floor speech in which he discusses Lysander Spooner, Lochner v. New York, Buchanan v. Warley, and the Presumption of Liberty: Ours wasn’t perfect. Our founders allowed and left slavery to occur. Interestingly, if you read the Constitution, I […]

I just uploaded to SSRN a paper, The Libertarian Middle Way, that will be the Afterword to a symposium on “Libertarianism and the Law” to be published in the Chapman Law Review. Abstract:  Libertarianism is sometimes portrayed as radical and even extreme. In this Aferword, I explain why libertarianism, though it may be radical, is far from […]

For some unknown reason that SSRN cannot explain, my paper, The Gravitational Force of Originalism, that I will be presenting this week at the Fordham conference on “The New Originalism and Constitutional Law,” disappeared from SSRN shortly after I blogged about it.  Perhaps it was the “repellent force of living constitutionalism” that drove it from the interweb.  At any […]

Thanks to Orin for his thoughtful post.  I don’t want to offer a lengthy response, but simply clarify a few matters. I only singled out Orin in my post as evidence that the failure of most law professors to anticipate the Supreme Court’s sympathy for our arguments did not stem wholly from the ideological echo […]

This morning, I did an hour-long talk show “Constitutionally Speaking” on New Hampshire Public Radio with University of Chicago law profesor Geoffrey Stone.  Naturally, the topic was the Second Amendment.  The focus of much of the discussion was the meaning of the Amendment, rather than its application to current gun control proposals, but we did […]

No one was more involved in the challenge to the Affordable Care Act than Ilya Shapiro.  Besides myself, I believe he was the only person who attended every court of appeals argument and we often sat together in the court room.  Here is the abstract of his new essay on the decision in NFIB v. […]

I have just posted to SSRN the paper, Who Won the Obamacare Case (and Why Did so Many Law Professors Miss the Boat)?, on which my forthcoming Dunwody Lecture at the University of Florida on March 22nd will be based.  It will appear in the Florida Law Review.  Here is the abstract. ABSTRACT: In this essay, […]

As Orin noted, today comes the news that Oxford NYU Professor Ronald Dworkin has passed away. I was a student in Dworkin’s jurisprudence class when he visited Harvard Law School, and remember fondly him debating my torts professor Charles Fried who questioned him from the student seats.  I thought then that Dworkin clearly won those exchanges. […]

Today, the Senate Subcommittee on the Constitution, Civil Rights and Human Rights is holding a hearing on proposals for new gun controls.  Below is my letter to the Ranking Member, Senator Ted Cruz, which expands upon a brief op-ed of mine, Gun Control Fails Rationality Test, that ran in the Washington Examiner a couple weeks ago: […]

Glenn Reynolds has a terrific, and very short, paper on SSRN on Ham Sandwich Nation: Due Process When Everything is a Crime, which I highly recommend.  (Conor Friedersdorf blogs about it here.)   Here is the key passage that summarizes the problem: Overcriminalization has thus left us in a peculiar place: Though people suspected of […]

I missed noting Lysander Spooner’s 205th birthday yesterday, but politics professor Helen Knowles didn’t.  You can check out her remembrance here and her new article about Spooner, Seeing the Light: Lysander Spooner’s Increasingly Popular Constitutionalism.  Here’s the abstract: In recent years, the rise in academic interest in “popular constitutionalism” has been accompanied by scholarly efforts to identify examples […]

The deadline to apply for the Georgetown Center for the Constitution Fellowship is February 1st. The Georgetown Center for the Constitution Fellowships is designed for a highly-qualified law graduate who intends to pursue an academic career.  We seek applicants who have shown an aptitude for independent scholarly research, as demonstrated by their scholarly work in […]

Searching for something else, I came across this PBS News Hour appearance of mine with Walter Dellinger on March 27th, the day the individual insurance mandate was argued in the Supreme Court.  I was struck by how close we both were to the actual outcome of the case, even in the heat of the moment. […]

As John just noted, author Robert Bork, a former-Yale law professor, who also served as Solicitor General of the United States and a as a judge on the DC Circuit Court of Appeals, died today at the age of 84.  He had been in ill-health for some time.  Bork flirted with libertarianism before becoming perhaps […]