Randy Barnett
Encyclopedia
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
, where he teaches constitutional law and contracts, and a legal theorist in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. He writes about the libertarian theory of law
Libertarian theories of law
Libertarian theories of law build upon classical liberal and individualist anarchist doctrines.The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of...
and contract theory
Contract theory
In economics, contract theory studies how economic actors can and do construct contractual arrangements, generally in the presence of asymmetric information. Because of its connections with both agency and incentives, contract theory is often categorized within a field known as Law and economics...
, constitutional law
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, and jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
.
After attending Northwestern University
Northwestern University
Northwestern University is a private research university in Evanston and Chicago, Illinois, USA. Northwestern has eleven undergraduate, graduate, and professional schools offering 124 undergraduate degrees and 145 graduate and professional degrees....
in Evanston, Illinois, and Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
in Cambridge, Massachusetts, Barnett worked as a prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
in Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
, Illinois. Barnett's first academic position was at the Chicago-Kent College of Law
Chicago-Kent College of Law
Chicago–Kent College of Law, the law school affiliated with Illinois Institute of Technology, is nationally recognized for the scholarship and accomplishments of its faculty and student body. It is the second oldest law school in the state of Illinois. Many of the applications of technology in the...
of the Illinois Institute of Technology
Illinois Institute of Technology
Illinois Institute of Technology, commonly called Illinois Tech or IIT, is a private Ph.D.-granting university located in Chicago, Illinois, with programs in engineering, science, psychology, architecture, business, communications, industrial technology, information technology, design, and law...
. He later became the Austin B. Fletcher Professor of Law at Boston University
Boston University
Boston University is a private research university located in Boston, Massachusetts. With more than 4,000 faculty members and more than 31,000 students, Boston University is one of the largest private universities in the United States and one of Boston's largest employers...
, where he served as the faculty adviser for the Federalist Society
Federalist Society
The Federalist Society for Law and Public Policy Studies, most frequently called simply the Federalist Society, is an organization of conservatives seeking reform of the current American legal system in accordance with a textualist and/or originalist interpretation of the U.S. Constitution...
. He joined the faculty of Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
in 2006. Barnett is a Senior Fellow of the Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
and the Goldwater Institute
Goldwater Institute
The Goldwater Institute is a Phoenix, Arizona-based conservative public policy research organization established in 1988. The president is Darcy A. Olsen. The Goldwater Institute advances public policies with emphasis on lower taxes, limited government spending, school choice, and a reduction in...
. His book The Structure of Liberty
The Structure of Liberty
The Structure of Liberty is a book by legal theorist Randy Barnett which 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...
won the Ralph Gregory Elliot Book Award in 1998. In 2008 he was awarded a Fellowship in Constitutional Studies by the John Simon Guggenheim Memorial Foundation
John Simon Guggenheim Memorial Foundation
The John Simon Guggenheim Memorial Foundation was founded in 1925 by Mr. and Mrs. Simon Guggenheim in memory of their son, who died April 26, 1922...
.
Jurisprudence
In The Structure of Liberty, Randy Barnett offers a libertarianLibertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
theory of law and politics. Barnett calls his theory "the liberal conception of justice", emphasizing the relationship between legal libertarianism and classical liberalism
Classical liberalism
Classical liberalism is the philosophy committed to the ideal of limited government, constitutionalism, rule of law, due process, and liberty of individuals including freedom of religion, speech, press, assembly, and free markets....
. Barnett argues that private adjudication and enforcement of law, with market
Market
A market is one of many varieties of systems, institutions, procedures, social relations and infrastructures whereby parties engage in exchange. While parties may exchange goods and services by barter, most markets rely on sellers offering their goods or services in exchange for money from buyers...
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 Quarterly Journal of Austrian Economics. 49 (1999).
- Richard Epstein, "The Libertarian Quartet", Reason Magazine, Jan. 1999.
- David N. Mayer, Book Review, The Structure of Liberty, 20 Cato Journal. 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)
Constitutional theory
Barnett has also done work on the theory of the United States Constitution, culminating in his book Restoring the Lost ConstitutionRestoring the Lost Constitution
Restoring the Lost Constitution: The Presumption of Liberty is a 2003 book about the United States Constitution written by Randy Barnett, a professor of law at the Georgetown University Law Center. In the book, Barnett outlines his theory of constitutional legitimacy, interpretation and construction...
. He argues for an originalist
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
theory of constitutional interpretation, and for constitutional construction based on a presumption of liberty (not popular sovereignty
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
).
Barnett was also a lead lawyer for the plaintiffs in Ashcroft v. Raich/Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, which won a victory before the Ninth Circuit, ruling that federal action against legal marijuana
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
patients violated the Commerce Clause. Barnett's side, however, lost when the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
and Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
s to the United States Constitution. Barnett has advanced the Standard Model interpretation 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.
Ninth Amendment
Barnett is a proponent of the view that the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote:
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:
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 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. Barnett has indicated that the case of Bolling v. Sharpe
Bolling v. Sharpe
Bolling v. Sharpe, 347 U.S. 497 , is a landmark United States Supreme Court case which deals with civil rights, specifically, segregation in the District of Columbia's public schools. Originally argued on December 10–11, 1952, a year before Brown v. Board of Education, 347 U.S...
(dealing with integration of public schools in the District of Columbia) is hard to justify textually from the Constitution, and if it were to be overturned due to this, Congress would create more laws desegregating the district, which would be justified in his view of the Constitution.
The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the Privileges or Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....
of the Fourteenth Amendment. In 2003, Professor Barnett wrote:
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.
Repeal Amendment
Barnett has proposed a "Repeal Amendment" to the United States Constitution, which would give two-thirds of the states the power to repeal any federal law or regulation. According to Barnett, the proposed amendment "provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse." He described the intent of the amendment as follows:
"The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.
Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.
The Repeal Amendment would help restore the ability of states to protect the powers 'reserved to the states' noted in the 10th AmendmentTenth Amendment to the United States ConstitutionThe Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
. And it would provide citizens another political avenue to protect the 'rights... retained by the people' to which the Ninth AmendmentNinth Amendment to the United States ConstitutionThe Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about."
Barnett's proposal has received interest from many politicians and academics, even those who do not share his libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
beliefs. "[A] number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor
Eric Cantor
Eric Ivan Cantor is the U.S. Representative for Virginia's 7th congressional district, serving since 2001. A member of the Republican Party, he became House Majority Leader when the 112th Congress convened on January 3, 2011...
" have endorsed the proposal, as has Attorney General of Virginia
Attorney General of Virginia
The Attorney General of Virginia is an executive office in the Government of Virginia. Attorneys General are elected for a four-year term in the year following a presidential election . There are no term limits restricting the number of terms someone can serve as Attorney General...
Ken Cuccinelli
Ken Cuccinelli
Kenneth Thomas 'Ken' Cuccinelli II is a U.S. politician and the Attorney General of Virginia. From 2002 until January 16, 2010 he was a Republican member of the Senate of Virginia, representing the 37th district in Fairfax County...
. Republican Congressman Rob Bishop
Rob Bishop
Robert William "Rob" Bishop is the U.S. Representative for , serving since 2003. He is a member of the Republican Party, and a member of the Tea Party Caucus.-Early life, education, and early career:...
of Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
introduced the amendment in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
. University of Texas Law Professor Sanford Levinson
Sanford Levinson
Sanford Victor Levinson is a prominent American liberal law professor and acknowledged expert on Constitutional law and legal scholar and professor of government at the University of Texas Law School...
has said that the Repeal Amendment "ha[s] the merit of recognizing that structures matter.".
Background
The Constitution is the Supreme Law of the United States. Article V
Article Five of the United States Constitution
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification....
of the Constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment
Twenty-first Amendment to the United States Constitution
The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...
was ratified by State Conventions.
Resolution
Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.
Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.
Criticism
The John Birch Society
John Birch Society
The John Birch Society is an American political advocacy group that supports anti-communism, limited government, a Constitutional Republic and personal freedom. It has been described as radical right-wing....
has criticized the idea of calling for a constitutional convention, calling it a "dangerous temptation" and a "threat to our Constitution." Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.
Amendment I - Restrictions on Tax Powers of Congress
Section 1 of this amendment would disallow federal income
Income tax in the United States
In the United States, a tax is imposed on income by the Federal, most states, and many local governments. The income tax is determined by applying a tax rate, which may increase as income increases, to taxable income as defined. Individuals and corporations are directly taxable, and estates and...
, gift
Gift tax
A gift tax is a tax imposed on the gratuitous transfer of ownership of property. The United States Internal Revenue Service says a gift is "Any transfer to an individual, either directly or indirectly, where full consideration is not received in return."When a taxable gift in the form of cash,...
, estate
Estate tax in the United States
The estate tax in the United States is a tax imposed on the transfer of the "taxable estate" of a deceased person, whether such property is transferred via a will, according to the state laws of intestacy or otherwise made as an incident of the death of the owner, such as a transfer of property...
, and consumption
Consumption tax
A consumption tax is a tax on spending on goods and services. The tax base of such a tax is the money spent on consumption. Consumption taxes are usually indirect, such as a sales tax or a value added tax...
taxes. It would explicitly permit a national sales tax
Sales tax
A sales tax is a tax, usually paid by the consumer at the point of purchase, itemized separately from the base price, for certain goods and services. The tax amount is usually calculated by applying a percentage rate to the taxable price of a sale....
, an idea which has been proposed in the United States as the FairTax
FairTax
The FairTax is a tax reform proposal for the federal government of the United States that would replace all federal taxes on personal and corporate income with a single broad national consumption tax on retail sales. The Fair Tax Act would apply a tax once at the point of purchase on all new goods...
. Section 2 would require a supermajority
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...
of three-fifths of both houses of Congress for any new tax or tax increase. Section 3 repeals the Sixteenth Amendment
Sixteenth Amendment to the United States Constitution
The Sixteenth Amendment to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results...
, and delays the implementation of the whole amendment for five years after it is ratified, to give Congress time to dismantle the IRS.
This amendment is partially a combination of the fifth and sixth amendments of the previous draft.
Amendment II - Limits of Commerce Power
The Constitution grants Congress the power
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This is amplified by the additional power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." This amendment would overrule the current interpretation of the commerce clause by removing three present applications of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.
- In Wickard v. FilburnWickard v. FilburnWickard v. Filburn, 317 U.S. 111 , was a U.S. Supreme Court decision that recognized the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S...
, the Supreme Court ruled that Congress could regulate the production of wheat by a farmer named Roscoe Filburn, despite the fact that Filburn did not intend to sell any of this wheat across state lines. The court ruled that since in the aggregate, unregulated wheat could have an effect on interstate commerce, it was thus covered by the commerce clause. - The Court has held that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." In one instance, the Court upheld federal safety regulations of vehicles used in intrastate commerce on the grounds that they run on highways of interstate commerce.
- In Gonzales v. RaichGonzales v. RaichGonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
, the court ruled that the commerce clause extended to non-economic regulatory schemes of congress.
Amendment III - Unfunded Mandates and Conditions on Spending
This first clause of this amendment would disallow Unfunded Mandates, meaning that the Congress could not make laws, even those within the scope of their power, that would require the states (or cities etc.) to spend money, unless Congress is willing to reimburse the States fully.
The court has ruled in Printz v. United States
Printz v. United States
Printz v. United States, 521 U.S. 898 , was a United States Supreme Court ruling that established the unconstitutionality of certain interim provisions of the Brady Handgun Violence Prevention Act.-The Gun Control Act of 1968:...
that the federal government cannot directly force a state to pass any law or regulation. However, by the precedent set in South Dakota v. Dole
South Dakota v. Dole
South Dakota v. Dole, 483 U.S. 203 , was a case in which the United States Supreme Court considered federalism and the power of the United States Congress under the Taxing and Spending Clause.-Background:...
, Congress can make routine, unrelated funding conditional upon state compliance with regulation that Congress cannot itself enact. The National Minimum Drinking Age Act
National Minimum Drinking Age Act
The National Minimum Drinking Age Act of 1984 was passed on July 17, 1984 by the United States Congress as a mechanism whereby all states would become thereafter required to legislate the age of 21 years as a minimum age for purchasing and publicly possessing alcoholic beverages...
was the subject of Dole and presently uses this mechanism, as did the National Maximum Speed Law
National Maximum Speed Law
The National Maximum Speed Law in the United States was a provision of the 1974 Emergency Highway Energy Conservation Act that prohibited speed limits higher than . It was drafted in response to oil price spikes and supply disruptions during the 1973 oil crisis...
while it was law. The second clause of this amendment would prevent Congress from using conditional funding to induce the states to enact any law if it would "restrict the liberties of its citizens."
Amendment IV - No Abuse of the Treaty Power
The Constitution grants to the president the power
Treaty Clause
Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which become treaties between the United States and other...
"by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The Constitution also grants to the Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Based on this clause, the Supreme Court held in Missouri v. Holland
Missouri v. Holland
Missouri v. Holland, 252 U.S. 416 , the United States Supreme Court held that protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the...
that Congress can make laws implementing a treaty, even if such laws would otherwise be outside of Congress' power to enact. Many thought this decision unwise, fearing that the Federal Government could essentially bypass any Constitutional limits by simply enacting treaties granting themselves any powers they saw fit. These concerns led to the Bricker Amendment
Bricker Amendment
The Bricker Amendment is the collective name of a series of proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. These amendments would have placed restrictions on the scope and ratification of treaties and executive agreements entered into by...
of the 1950s, designed to restrict the treaty power. The Bricker Amendment came up a single vote short of the two thirds majority it needed.
This amendment would similarly overturn Missouri, preventing any treaty from enlarging Congress' power. Note, however, that the Supreme Court's 1957 Reid v. Covert
Reid v. Covert
Reid v. Covert, , is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate...
decision reversed Missouri, at least in part.
Amendment V - Freedom of Political Speech and Press
This amendment would expand the scope of the right to free speech to apply to Campaign Contributions, thereby making it illegal for charges or imprisonment in terms of campaign finance laws. This Amendment would make laws such as McCain-Feingold illegal. McCain-Feingold made it illegal for anybody not directly connected with a campaign to voice issues related to that campaign within 30 days of a primary election and 60 days within a general election. This amendment also extends freedom of speech rights to the internet.
Amendment VI - Power of States to Check Federal Power
This amendment would provide for the states to have a collective veto power over congress without having to go through the courts. In this wording, identically would mean that a collection of 38 out of 50 states would disapprove of an act of congress. This amendment continues to attract political support as the "Repeal Amendment."
Amendment VII - Term Limits for Congress
This amendment would simply limit the terms of any Congressman or Senator. Under this Amendment, a Congressman's term would be limited to six two year terms, plus one year of a previous Congressman's term. Meanwhile, Senators would be limited to two six year terms, plus three years of a previous Senator's term.
This is based on the 22nd Amendment of the US Constitution which limits the President to two 'four year' terms in office and two years of another person's term for a total of 10 years.
Amendment VIII - Balanced Budget Line Item Veto
This amendment requires a line-item veto
Line-item veto
In United States government, the line-item veto, or partial veto, is the power of an executive authority to nullify or cancel specific provisions of a bill, usually a budget appropriations bill, without vetoing the entire legislative package...
to be established for the President. Section one of this amendment establishes a definition of an unbalanced budget stating that it is when public debt at the end of one fiscal year (September 30 of the calendar year) is greater than the preceding one. Section two allows the President to separately approve or disapprove of any part of any legislation except that which allows for the operation of congress or the judiciary. Section three simply sends the disapproved items to the US House for separate consideration. Section four allows Congress to pass a line-item veto law after the amendment is ratified. This amendment is a direct result of an overturned law that former President Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
enjoyed in his second term in office.
Amendment IX - The Rights Retained by the People
This amendment is a direct cousin of the 10th Amendment though it applies to the people of the US and not the states.
Section one puts the Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
into coded law. This includes the preamble which allows for people to live their lives the way they seem fit. Note that the proposed right of "making binding contracts of their choosing" would appear to resurrect the legal doctrine of "economic due process," which during the Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
was used by the Supreme Court to strike down a wide variety of state and federal laws affecting business, including child-labor and minimum-wage laws.
Section two allows any legal person of the United States to rise up and challenge any law that restricts their rights and gives the burden of truth to the United States federal government or any state government. This means that any attempt to establish the constitutionality of any law is rested with the government.
Amendment X - Neither Foreign Law nor American Judges May Alter the Meaning of Constitution
This amendment establishes a strict interpretation of the Constitution as written, and bans the practice of some judges having a broad interpretation including establishing foreign laws into their decisions, which could change the meaning of a certain article or section of the Constitution.
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 ruleDefault rule
In legal theory, a default rule is a rule of law that can be overridden by a contract, trust, will, or other legally effective agreement. Contract law, for example, can be divided into two kinds of rules: default rules and mandatory rules. Whereas the default rules can be modified by agreement of...
, 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.
Criticism
Austrian SchoolAustrian School
The Austrian School of economics is a heterodox school of economic thought. It advocates methodological individualism in interpreting economic developments , the theory that money is non-neutral, the theory that the capital structure of economies consists of heterogeneous goods that have...
economist and libertarian legal theorist Walter Block
Walter Block
Walter Edward Block is a free market economist and anarcho-capitalist associated with the Austrian School of economics.-Personal history and education:...
has criticized Barnett's arguments for the inalienability of certain rights.
Biographical information
Barnett is married to Beth Barnett and they have one son, Gary, and one daughter, Laura. Gary Barnett attended Georgetown University Law CenterGeorgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
and now works as a prosecuting attorney in Brooklyn
Brooklyn
Brooklyn is the most populous of New York City's five boroughs, with nearly 2.6 million residents, and the second-largest in area. Since 1896, Brooklyn has had the same boundaries as Kings County, which is now the most populous county in New York State and the second-most densely populated...
, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
. Laura Barnett lives in Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
and works for the Institute for Humane Studies.
Books
- Restoring the Lost Constitution: The Presumption of LibertyRestoring the Lost ConstitutionRestoring the Lost Constitution: The Presumption of Liberty is a 2003 book about the United States Constitution written by Randy Barnett, a professor of law at the Georgetown University Law Center. In the book, Barnett outlines his theory of constitutional legitimacy, interpretation and construction...
(2004) - The Structure of Liberty: Justice and the Rule of Law (1998)
- Contract Cases and Doctrine (1995, 2ed 1999, 3ed 2003, 4th ed 2008)
- Perspectives on Contract Law (1995, 2ed 2001, 3d ed 2005)
Articles
- Randy Barnett, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (Social Science Research Network 2003).
- Randy Barnett, "Restitution: A New Paradigm of Criminal Justice" (Ethics 87, no. 4, July 1977).
Movies
- InAlienableInAlienable (film)InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
(2008) Assistant to Crystal Barry (Marina SirtisMarina SirtisMarina Sirtis is a British-American actress of Greek descent. She played the role of the human/Betazoid Commander Deanna Troi, ship's counselor, on the television and film series Star Trek: The Next Generation.-Life:...
) (InAlienable IMDB entry)
See also
- Libertarian theories of lawLibertarian theories of lawLibertarian theories of law build upon classical liberal and individualist anarchist doctrines.The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of...
- LibertarianismLibertarianismLibertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
- Classical liberalismClassical liberalismClassical liberalism is the philosophy committed to the ideal of limited government, constitutionalism, rule of law, due process, and liberty of individuals including freedom of religion, speech, press, assembly, and free markets....
- Contract theoryContract theoryIn economics, contract theory studies how economic actors can and do construct contractual arrangements, generally in the presence of asymmetric information. Because of its connections with both agency and incentives, contract theory is often categorized within a field known as Law and economics...
- Default ruleDefault ruleIn legal theory, a default rule is a rule of law that can be overridden by a contract, trust, will, or other legally effective agreement. Contract law, for example, can be divided into two kinds of rules: default rules and mandatory rules. Whereas the default rules can be modified by agreement of...
- Philosophy of law
- Lawrence v. TexasLawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
- Lysander SpoonerLysander SpoonerLysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...
External links
- RandyBarnett.com
- The Structure of Liberty
- Co-blogBlogA blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...
ger at volokh.com - LysanderSpooner.org (page set up by R. Barnett)