For generations, constitutional interpretation in the United States has been subject to an ideological divide — between those who view the founding document as a living text that defers to politicians and accommodates any new legislative fashion, on one hand; and those who see it as a framework for protecting fundamental rights and individual sovereignty on the other. In the third annual Liggio Lecture, presented during Atlas Network’s 2015 Liberty Forum & Freedom Dinner, constitutional scholar Randy Barnett explained how a growing legal movement of institutions and scholars is devoted to restoring the U.S. Constitution to its rightful position as the defender of individual liberty.
“Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals,” the New Republic explained in a recent profile. “This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections—minimum wages, food-safety regulations, child-labor laws—that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.”
Barnett has been at the forefront of this constitutional movement since he published his groundbreaking 2003 book Restoring the Lost Constitution: The Presumption of Liberty. He argues that the U.S. Supreme Court has largely abdicated its responsibility to review laws to ensure they pass constitutional muster, beginning in the progressive era of the early 20th century. Presidents on both the left and right began appointing Supreme Court justices who would reflect popular will rather than thwart it. As judicial opinions stray continually further afield from the Constitution’s limited enumeration of government power, however, Barnett insists that it’s time for judges to stop deferring to legislators and officials, instead holding government to its constitutional mandate.
Randy Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, and Director of the Georgetown Center for the Constitution.
“Looking to the past, we find shockingly troubled times, be it the Revolutionary War — the burning of the White House by the British — the perpetuation of slavery and the vitriolic political struggle that culminated in a deadly Civil War — the re-imposition of racial subordination by a Jim Crow regime that would last another century — the conflagration of two devastating world wars, interrupted by a devastating economic depression — the struggle against the totalitarian forces of National Socialism, with its genocide of my people — and then against the international Communist movement with its own multiple genocides of millions — and now the fight against a religiously-motivated totalitarian ideology that revels in killing Americans because of what we stand for,” Barnett wrote recently for Atlas Network partner the Fund for American Studies. “The 50s brought us Korea, the 60s brought Vietnam, and the 70s brought us Jimmy Carter and disco. Now those were troubled times! And, throughout our history, the Constitution has been bent, folded, spindled and mutilated in ways that have eliminated whole clauses comprising what I call the ‘lost Constitution.’”
The difference today, Barnett reminds us, is that there are now two active sides in this fundamental debate, with a growing legal presence on the side of restoring the constitution to its fundamental role of protecting individual rights rather than providing a blank check to politicians who want to shape the world to their will.
The annual Liggio Lecture, named in honor of the late Leonard Liggio, Atlas Network's long-time executive vice president of academics, is a highlight of Liberty Forum & Freedom Dinner. In 2014, John Tomasi of Brown University presented the annual lecture on “Market Society: The Tiny Tim Defense.”