What’s at Stake in the ACB Confirmation Hearings?

Constitutional lawyer Randy Barnett simplifies the looming debates over competing judicial philosophies

23 min readOct 12, 2020

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This week, the Senate is scheduled to kick off confirmation hearings for Judge Amy Coney Barrett. The stakes are high, with the seat of the most prominent liberal Supreme Court Justice, Ruth Bader Ginsburg, potentially being filled by a conservative in the mold of her mentor, Antonin Scalia.

Georgetown Constitutional Law Professor Randy Barnett argued before the late Justice Ginsburg, and knows Ginsburg’s prospective replacement personally. While he was on the opposite side of the ideological divide from Justice Ginsburg, he honored her recently in a Washington Post column as a gracious presence, who assisted him in an oral argument before the Supreme Court. And while Barnett and Barrett’s judicial philosophies are more closely aligned, Barrett debated some of the finer points of Professor Barnett’s book Our Republican Constitution insofar as he argues against judicial restraint when it comes to defending economic liberties.

I was delighted to have Professor Barnett join me to discuss why the Supreme Court has become so heavily politicized and how the stakes have gotten so high.

Many believe that a future Justice Barrett could be the divisive vote on a number of key issues — not just Roe v. Wade but also Obamacare. Since when did nine unelected officials determine the fate of our entire lives?

Don’t miss this special edition of the show of #ideasnotattitude – listen above, or read the transcript below.

Transcript

Bob Zadek: How did we get to a point in our country’s history where Americans are required to understand the dynamic of the Supreme Court if they wish to intelligently participate in government? Is it healthy that a branch of government with no budget or power to enforce its rulings, composed of nine, unelected public servants has become so important?

To help us understand these complex issues, I am thrilled to welcome the show this morning, Professor Randy Barnett — a legal scholar, and practicing lawyer for many years, who now teaches Con Law, contracts, and legal theory at Georgetown Law School in Washington DC.

His books include Our Republican Constitution: Restoring our Last Constitution, and The Structure of Liberty. His most recent book, entitled An Introduction to Constitutional Law: One Hundred Supreme Court Cases Everyone Should Know, is a must read for anybody who is even remotely curious about how our government really works. Randy will help us understand the dynamics of the confirmation battle over Justice Barrett, what this means to the court and what this means to all of us.

Thank you so much for all of the scholarship you have made available to me and everyone else who has read your books.

Randy, welcome to the show this morning.

Randy Barnett: Well Bob, thanks very much for those extremely kind words. They make my day, they make my weekend, and they make my week.

Originalism vs. “Living Constitutionalism”

Bob Zadek: You are a strong advocate for a concept of interpretation of the Constitution which has been called “originalist” — looking at the original meaning of the Constitution. The alternative philosophy, which you and I do not subscribe to, is called the “living Constitution.” Help us understand those two very different interpretations.

Randy Barnett: It’s not that complicated. Originalism is the view that the meaning of the Constitution should remain the same, until it is properly changed by amendment, and not by judges.

There isn’t just one living constitutionalist theory, there are competing theories, but essentially, it is the opposite of this. The meaning of a written Constitution can and should be updated by judges to reflect the changing times and troubles and problems that we and every society faces. It is a judicial updating view of the Constitution, rather than a view that the Constitution’s meaning is fixed, and the judges are subject to that meaning as opposed to be able to determine that meaning for themselves.

Bob Zadek: There have been hundreds and perhaps thousands of important Constitutional law issues that the Supreme Court and the lower courts have had to wrestle with over our 231-year history. Apply those two abstractions, if you can, to how an originalist would decide the issue based upon the Constitution, and how one who advocates a living constitution would decide an issue.

Randy Barnett: The most important one is probably the meaning of the Commerce Clause and the Necessary and Proper Clause, but I’d like to use that one second and basically use an easier to understand example that requires less explanation: that is the meaning of “the right to keep and bear arms” in the Second Amendment. An originalist would argue that the meaning of that right is the same today as it was in 1791, when the Second Amendment was was ratified, and also that the right to keep and bear arms is the same today as it was in 1868, when the 14th Amendment was ratified, that says, “no state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities was the individual right to keep and bear arms. That’s what an originalist would say.

Now, there are people who are opposed to gun rights, who argued that the original meaning of the Second Amendment was actually not an individual but rather was a collective. That is an originalist argument that they are making, so that’s okay. I think it’s wrong, but it’s okay for them to make that argument because they’re making an originalist argument about what the public meaning was of the right to keep and bear arms. They argue that it has a military-only meaning. What a living constitutionalist would say is that the Second Amendment is at best a starting point of a judicial analysis or a single factor to be considered, along with all other factors to be considered, and that with the changing times and with changing circumstances the law should be changed.

For example, the Founders would not have imagined that weapons would become as lethal as they are or that people would have become as violent as they are or whatever you would say has changed since between then and now. If they were alive today, they would say that public safety might require strong restrictions on the right to keep and bear arms today.

Of course, a living constitutionalist doesn’t have to say what the framers would say. They can simply say, “That’s what we say.”

They would say we should not be bound by the dead hand of the past, that we should not let our gun policy be restricted by what some people who long ago thought gun policy should be. It should be decided today by the legislature and there should be no constitutional right that stands in the legislature’s way.

Bob Zadek: So therefore, the originalist would say that if society feels that a certain provision inserted in the constitution is wrong, given life in America today, there is a solution. It is a political document, and there is a mechanical way to change it. If you feel there is no individual right to bear arms, or that should be limited, there’s a way to do it. It’s not as if it cannot be changed. There is a mechanical way to do it, and it is not by what some Justice today determines should be the 21st-century application of that. The solution is to change it.

Randy Barnett: It is not as if originalism says we are stuck with the dead hand from the past. The wrong way to change it is just to shrug it off and to change it by judicial reinterpretation. The Constitution has been changed 27 times. It’s been changed in significant ways. The 14th Amendment created a federal power to police states so that they would not violate the rights of their own people, which is a power that the federal government largely lacked before 1868. In the Progressive Era, we saw the establishment of a power in Congress to tax incomes, which has had a huge effect on our structure of government, I think for the worse, but it was done the right way through a constitutional amendment, which allowed Congress to tax incomes.

“If judges can undo the original Constitution, why couldn’t they just undo any amendment that would change it?”

If the Supreme Court were ever to enforce the original meaning of the Constitution and that meaning completely flew against modern contemporary opinion, I would predict a rapid amendment. They would have the virtue of having a text that judges can follow in the future when they have to interpret the meaning of the new amendment. In fact, anyone who proposes a new amendment surely wants that amendment to be read as it was meant to be read at the time it was enacted, or else why propose the amendment itself? If judges can undo the original Constitution, why couldn’t they just undo any amendment that would change it?

The privileges or immunities clause says that “no state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.” That seems quite important. But because they disagreed with the scale and scope of that change to the Constitution, judges undid that provision five years after it was enacted in the Slaughterhouse Cases. Any lawyer will tell you that you cannot plead the privileges or immunities clause today because of stare decisis and precedent which says that essentially it has no meaning.

The judges didn’t agree with what the Republicans did when they enacted the 14th Amendment. They thought it was too radical. They thought it undermined our federalism and, therefore, they restored the meaning of the Constitution before the amendment which is a form of living constitutionalism.

An Argument for Originalism: Safeguarding the Voice of the People

Bob Zadek: There is an intellectual passion behind originalism. It’s not just Bears versus Giants versus Niners. Tell us why you are intellectually committed to originalism? Not just because it is conservative and perhaps we are conservative — it has nothing to do with that. There is a deeper, more important reason.

Randy Barnett: There are multiple reasons for originalism, but let me just identify two reasons. One has to do with the rule of law. Judges take an oath to adhere to a written constitution. We only give them power to do what they do in return for that promise they make to follow the Constitution. What a written constitution provides is a rule of law to govern those who govern us. The Constitution actually doesn’t govern us. With the exception of the 13th Amendment, which bans slavery, the Constitution does not bind we the people — the Constitution is the law that governs those who govern us. In the absence of that law, if those who were to govern us can make up whatever laws that govern them, it would be just the same way as if you and I could make up whatever laws that govern us for our convenience.

“What a written constitution provides is a rule of law to govern those who govern us.”

Not only that, we could change the law, as we wish to as it fits our needs of the moment. And I think everybody would agree that would be a very chaotic way to have a society, where each individual person would make up their own law. It would be like having living speed limits instead of a speed limit for everybody.

The other reason is simply because our particular Constitution happens to be a good constitution. And if that set of laws is followed, we’d be better off as a group than if we merely followed the law of the constitution that’s given to us by nine justices on the Supreme Court. The Constitution is actually a better document than what the Supreme Court can provide. If we were to follow the Constitution, it would reduce the significance and importance of the national election and would reduce the importance of who gets to be on the Supreme Court. It would allocate power to 50 states for social and economic policies.

We would not all be fighting to have our policies adopted at the national level or fighting to stop people with whom we disagree with from imposing their views on us. As a result, every national election is a fight to the death to prevent the people we disagree with from having their way and imposing their will on us. We would like to embody our will into law as well, but mostly it is a self defense. We are deathly afraid of what will happen if our political opponents get control of the central government. If we could have 50 states solutions, it would decentralize and defuse all of this intense social and political conflict that we’re now experiencing and make the Supreme Court a lot less important than it currently is.

“[E]very national election is a fight to the death to prevent the people we disagree with from having their way and imposing their will on us.”

Living Constitutionalism: A Usurpation of “We the People”

Bob Zadek: What makes it seem like our disagreement and polarization is more intense? I concluded that the problem was that the devolution of power from the states to Washington means the stakes in Washington elections get increasingly higher, because it’s a fight to the death. If you lose the battle in a national election, then the other side gets to impose their political philosophy on you. Whereas with diffused power at the state level, you are not painted into a corner. You are not stuck with having the choice of staying here or moving to another country, you can just vote with your feet. You have a safety valve. Before you get that angry, you just get up and move.

But when that option is not available, then you are betting the ranch every four or every two years. It involves the word the Founders feared the most, which is power — specifically a concentration of power. It’s a wonderful segue into the next topic, which is the incredible power that has devolved to the Supreme Court.

When you describe a living constitution, where you have the judges in effect, rewriting the Constitution as they think it should be written, you have just described a legislature.

A legislator is elected to take their judgment and use their judgment to write laws consistent with the Constitution, of course. But that’s not the job of a judge. That’s a legislative job. So as you and I have both observed, the Supreme Court has been brought into the battle and forced to become by abdication of the other branches to become a legislator, because the other two branches aren’t doing a good job. Therefore, the Supreme Court has become much more powerful than it was supposed to be during the Founding. They are now making social decisions on the lives of every American when their job was simply to preserve and defend the Constitution.

Doesn’t the Supreme Court seem to be accumulating, not by its own act but by default of the other branches, far more power than it was designed to handle? Is that a fair statement on what’s going on?

Randy Barnett: Yes and no. The Supreme Court’s power is the same as it has always been, which is the power of judgment to say whether something that the legislature is doing or the executive branch is doing is constitutional or unconstitutional. It is not something that was invented by John Marshall in Marbury vs. Madison. What has changed is the criteria that the court uses to decide whether something is constitutional or not, which gets us back to our originalism versus living constitutionalism.

Do they rely on the original meaning of the Constitution? What is that original meaning? Or do they rely on their own sense of what’s proper or improper — i.e., what violates a right or what doesn’t violate a right? Their discretion in exercising their power has been greatly expanded. As a result, they have made errors in both directions.

On the one hand, they have acknowledged rights that may not actually be rights, and thereby stopped legislators from doing things that perhaps they should or they ought to be able to do. But on the other hand, they have failed to enforce constraints on government, both at the federal and state level, that would stop the other branches from doing things that they shouldn’t be doing under our scope scheme of government.

“The Supreme Court is usurping the role of the people, not the role of the legislators, because the legislators also are supposed to be servants of the people as well.”

So it is complicated, because you have to get into a specific discussion of rights on the one hand or powers on the other hand. The methodological problem is that they’ve taken it upon themselves to make these calls. I don’t think I would analogize that with the legislature. I think I would analogize that with “We the People” ourselves, because we are the ones that are supposedly speaking through the Constitution. The Supreme Court is usurping the role of the people, not the role of the legislators, because the legislators also are supposed to be servants of the people as well.

Amy Coney Barrett and the Lost Presumption of Liberty

Bob Zadek: There are two very important words that we are going to segue into. The words are
“presumption,” as in a “presumption of unconstitutionality.” Presumption is a powerful word because it puts the burden on the other side to prove something. The related word is “deference.” Those words, of course, are related. You are an advocate of the court assuming a presumption of unconstitutionality. Please explain your view.

Randy Barnett: There are three approaches to this issue that the court has taken over the years. When a judge is deciding whether legislation is within the power of a legislature to enact — either their enumerated powers of Congress to enact or what’s called the state’s “police power,” which is a more general power — how much do they defer to the judgment of the legislature and how much do they essentially defer to the decision of the individual citizen to exercise the liberty that the statute is restricting?

Who gets the benefit of the doubt? Do they give the benefit of the doubt to the legislature when they restrict the liberties of the way the people? Or do they give the benefit of doubt to the people? Depending on who they give the benefit of the doubt to, the other party on the other side can add evidence and argument as to why they are right after all.

Let’s say the court gives the benefit of the doubt to the individual whose liberties are being restricted, they could still allow the court, the legislature or the government to come in and argue why what they are doing is within their proper powers. By the same token, if they give the benefit of the doubt to the legislature, then the citizens ought to be able to come into court and rebut that presumption that the law is not within the powers of the state. The first of these would be a presumption of liberty, the second would be a presumption of constitutionality, where the citizen has to come in and rebut the presumption with evidence and argument.

There is a third approach. Unfortunately, it is the approach that has been taken by the court in many cases. It is the approach that judge Barrett defends, under certain circumstances. That we presume laws to be constitutional, and we don’t allow citizens to come in and contest and rebut the presumption. As long as any reasonable person would think that the law was reasonable, then that is constitutional as far as we’re concerned.

“As long as any reasonable person would think that the law was reasonable, then that is constitutional as far as we’re concerned.”

The judges will get out of the way as long as there is a conceivable rational basis for the law. A citizen will not be able to come in and offer evidence and arguments to rebut a presumption of constitutionality, much less give the benefit of the doubt to the individual citizen.

Bob Zadek: When I take the word presumption, I ask our friends out there to recognize and understand and appreciate that the cornerstone of our criminal law is the presumption of innocence. Now, criminal law is crucial because it is the body of law, which empowers the state to take away our liberty — to take away our rights. The burden is on the state to prove that an individual committed a crime and should be deprived of her liberty.

Why is the burden on the state? Because liberty is more important. If we are going to err, we’d rather err on the side of preserving liberty than err on the side of taking away liberty. So therefore, the burden is on the state.

Randy, what you have said is the exact parallel except it’s not criminal law. Since every law in one way or another deprives us of liberty, to be consistent with the criminal law philosophy, the presumption should be for liberty.

The Pitfalls of Barett’s “Double Deference”

Bob Zadek: When Amy Barrett reviewed your book, The Republican Constitution, I think she specifically took issue with the concept of “deference.” Help us understand what her point was, because it gives us an insight into her constitutional view as compared to yours. What was the point she was trying to make?

Randy Barnett: I don’t want the listeners to be misled. I strongly support her confirmation as a Justice on the Supreme Court, notwithstanding the disagreement we have, which is very real. The reason I do is that not only do I believe she has the character to be on the Supreme Court, which is an important part of judicial character, and an important part of being a judge. She is an experienced law professor who has written great scholarship.

She’s an originalist. She understands what originalism is. I would have confidence that she would be an originalist on the court and would remain an originalist on the court. She would not be seduced by the power that Washington and the establishment can offer Supreme Court Justices. We disagree, but I disagree with many conservatives about this particular issue of deference.

Now, I will say that what this means on the upside for her is that where the Constitution is clear about either allowing something or prohibiting something, I think she will enforce the Constitution as it is written more likely than most other people who would be appointed to the Supreme Court. There is one wrinkle on this, Bob, and that is, it will depend on what her view of stare decisis, or precedent is. So that’s a separate question.

To the issue of deference, where we disagree, I think that Judge Barrett will enforce the rules of the Constitution, where those rules are clear. The issue is, what happens when there is a general injunction or Congress is exercising one of its powers, but does so in a way that is either unnecessary or improper?

Under those circumstances, I would expect her, as she explained in her commentary on my book, to be more deferential to the opinion of Congress. So, deference means that she would put the opinion of Congress, whether what it’s doing is within its powers, perhaps over what the opinion of the Supreme Court is. The way she puts it, however, is not quite like that. The way she puts it is to say that the Congress gets to make policy judgments. Courts are not competent or capable of making policy judgments. Stated that way, I do agree with her, but I don’t think it’s a policy judgment for a court to ask the Congress to explain just why it’s doing what it is doing, and why it is necessary and why it is proper, and then to have a court exercise independent judgment over that claim. That’s the reason why I resisted your analogy of the court to a legislature.

I don’t think making that assessment of the relative merits of Congress’s claim versus the relative merits of an individual plaintiff’s claim, that this action is either unnecessary or improper under the Constitution for it to implement. She would defer to Congress. The result of the deference that she and many other conservatives favor is that we have in effect a system not of single deference, but of double deference.

What is double deference? Double deference is that you go to the Supreme Court and you say, “Your Honor, this is not within the power of Congress, because it is either unnecessary or it’s improper, or it’s both, and Congress hasn’t adequately supported why it is necessary or proper.”

“Why is the Supreme Court upholding it? Well, because they’re deferring to Congress. What is the Congressman doing when you ask them about constitutionality? They are deferring to the Supreme Court.”

The Court says, “Oh, no, we’re going to defer to Congress on this issue, because we don’t want to get into the business of deciding that question.” Then you go across the street to the Capitol. You go up to a Congressman or a Senator and you say, “Okay, it’s up to you to decide whether this is within your power or not. Is it within your power?”

And what did they tell you each and every time? They say, “Yes, it’s within our power because the Supreme Court will uphold it.” Why is the Supreme Court upholding it? Well, because they’re deferring to Congress. What is the Congressman doing when you ask them about constitutionality? They are deferring to the Supreme Court. So each side is deferring to the other. Each side is pointing their finger to the other, and what drops out of the equation is the Constitution. What in particular drops out of the equation is constitutional limits on legislative power at the federal level and at the state level.

Bob Zadek: So with double deference, we end up with no advocate for the Constitution. Each side gets to deflect responsibility to the other. We end up with, in effect, no advocate for the Constitution.

Let us all remember, the Constitution is not merely parchment. The Constitution is our line of defense against expansive government depriving us of our rights. The Constitution does two things. It presents the mechanical building blocks for government, but it also says that in exchange for us ceding some power to the government that otherwise resides in us, we are giving that power under very strict controls and conditions. Once no branch of government is around to protect the Constitution from infringement, that means the barrier starts to crumble. So neither side cites the Constitution.

The Supreme Court says, “That’s what the legislature did. They must be right.”

The legislature says, “The Supreme Court did strike it down so we must have done the right thing.”

Neither side is citing the Constitution in support of their actions.

Randy Barnett: The Constitution just drops out because the Court is citing Congress, and then Congress is citing the Supreme Court. Originalism says that the Constitution should be constraining everybody — not just the Courts, but Congress as well. But if the courts don’t hold Congress to it, then Congress won’t hold itself to it. The courts do enforce the First Amendment. Because they enforce that, when Congress goes to pass a law that might infringe or restrict speech, they actually debate it. They actually have to make arguments and it becomes a subject of debate. Why? Because they know the Supreme Court is going to be looking over their shoulder.

“Originalism says that the Constitution should be constraining everybody — not just the Courts, but Congress as well. … If nobody’s checking your work, you can get away with a whole lot more than if somebody is checking your work. “

As a felony review assistant in the Cook County State’s Attorney’s office, I used to look over the shoulder of the police, because charges in Chicago cannot be brought unless a felony review assistant signs off on it. So the police knew before they came to me that I would be checking their work, and therefore that would cause them to do better work before they even asked for approval of felony charges. If nobody’s checking your work, you can get away with a whole lot more than if somebody is checking your work. And that’s really the role the Supreme Court is supposed to be playing.

The Heart of the Matter: Exposing Progressivism

Bob Zadek: It’s almost as if we the people need a public defender in every case, arguing and protecting the Constitution since the other branches will not do it. We need another branch of government to always be the guardian of the people’s rights under the Constitution, because you describe a system when there’s an abdication by both of the other branches of government, the legislative branch and the executive branch — what you have described as double deference.

What is it about the progressive worldview that makes them embrace a living Constitution and that makes conservative Americans embrace an originalist Constitution? Conservatives, for example, support gun rights. They are more protective of religious liberty. They are against unions and favor economic rights. But those don’t seem to have much in common. Those are individual positions on individual issues. So what is there about the living constitution that progressives embrace so much?

Randy Barnett: Progressives invented the concept of a living Constitution at the turn of the 20th century, between the 19th and 20th century. Woodrow Wilson was a living constitutionalist. He was quite candid about his motivations. He didn’t like the Constitution. He said that we should be living under a parliamentary system, and that this was a horse and buggy Constitution for a modern age.

Progressives viewed themselves as Social Darwinists, because Darwin and evolution was considered to be the highest form of scientific knowledge. Societies were like organisms. Just as organisms evolve to a higher state societies evolve to a higher state. The societies are living, breathing organisms, and so a Constitution should allow societies to evolve the way they ought to evolve to a higher and better state. That is the underlying root of the original idea of the living Constitution.

I think that’s exactly what motivates progressives today. Why be bound by the dead hand of a past when we ourselves today know better than they did about what society should require? Not only that, we shouldn’t be ruled by them, we should be ruled by ourselves today. As you know, Bob, this really means a rule by a majority as opposed to the minority in any particular society. Rule by ourselves doesn’t mean minority rule, it means majority rule, and that means the minority has to go along with it. That gets us back to where we were in the beginning of this conversation. To the extent we are going to have policy made by majorities, isn’t it better to have 50 state majority rules which you can choose with your foot than a one size fits all majority view where the only way to escape is to leave the country of your birth.

Bob Zadek: That’s a wonderful explanation. I would express the same thought, perhaps more harshly, that progressives simply reject much of America’s founding principles. However, a position that tears up the Constitution would not fly. So the progressives, having rejected much of what makes our country our country, they then say, “How do we go about paying lip service to the Constitution?”

It is a nonstarter to just reject it outright, so the way to reject it without rejecting it is just to minimize it, and to say, “Well, what they meant was this today.”

That is a far more subtle and very stealthy way to fundamentally change our government while giving the appearance of doing so under the existing form of government. That I think is what’s going on. It’s not as if progressives studied constitutional theory and came up with this intellectual argument. The Constitution is in the way, and this is the most politically expedient way of getting the Constitution out of the way — by simply interpreting it out of existence. So, therefore, the progressive point of view is simply radical change from founding principles into a different form of government, but to do so somewhat gradually and without the country being aware of it.

Randy Barnett: I couldn’t find any fault with anything you just said. I would think that that’s exactly right. I don’t think it’s overly harsh. I think it’s just calling it the way it is. Let’s put it this way, to put it down succinctly. If you told your spouse, “I love you, I love you dearly. And I want to fundamentally transform you,” then maybe that suggests you actually don’t love your spouse as long as you profess to do so. What you want is a different spouse.

Bob Zadek: I sincerely thank you both for all that you have taught me for your wonderful writings that inform the country about what’s going on. You have taken issues that may seem intimidating and complex, and made them accessible to all voters to the benefit of the entire country.

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