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Randy E. Barnett (born February 5, 1952) is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States. He writes about the libertarian theory of law and contract theory, constitutional law, and jurisprudence.

After attending Northwestern University in Evanston, Illinois, and Harvard Law School in Cambridge, Massachusetts, Barnett worked as a prosecutor in Chicago, Illinois. Barnett's first academic position was at the Chicago-Kent College of Law of the Illinois Institute of Technology. He later became the Austin B. Fletcher Professor of Law at Boston University, where he served as the faculty adviser for the Federalist Society. He joined the faculty of Georgetown University Law Center in 2006. Barnett is a Senior Fellow of the Cato Institute and the Goldwater Institute. His book The Structure of Liberty 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. In 2009, he drafted the Bill of Federalism, 10 proposed amendments to the US Constitution designed to limit federal power and strengthen individual rights.

Contents 1 Jurisprudence 2 Constitutional theory 2.1 Ninth Amendment 3 Contract theory 4 Criticism 5 Biographical information 6 Footnotes 7 Bibliography 7.1 Books 7.2 Articles 7.3 Movies 8 See also 9 External links

[edit] Jurisprudence

In The Structure of Liberty, Randy Barnett 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 adjudication and enforcement of law, with market 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)

[edit] Constitutional theory

Barnett has also done work on the theory of the United States Constitution, culminating in his book Restoring the Lost Constitution. He argues for an originalist theory of constitutional interpretation, and for constitutional construction based on a presumption of liberty (not popular sovereignty).

Barnett was also a lead lawyer for the plaintiffs in Ashcroft v. Raich / Gonzales v. Raich, which won a victory before the Ninth Circuit, ruling that federal action against legal marijuana patients violated the Commerce Clause. Barnett's side, however, lost when the Supreme Court 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 and Ninth Amendments 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.

[edit] Ninth Amendment

Barnett is a proponent of the view that the Ninth Amendment's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote:^[1]

“

The purpose of the Ninth Amendment was to ensure that all [enumerated and unenumerated] individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal powers.

”

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:

“

It was only with passage of the Fourteenth Amendment ... that the federal government obtained any jurisdiction to protect the unenumerated retained natural rights of the people from infringement by state governments.

”

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 (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.^[2]

The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. In 2003, Professor Barnett wrote:^[3]

“

Just as the Fourteenth Amendment extended protection of the enumerated rights of the first eight amendments to violations by state governments, so too did it extend federal protection of the pre-existing unenumerated rights "retained by the people."

”

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.

[edit] 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 rule, 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.

[edit] Criticism

Austrian School economist and libertarian legal theorist Walter Block has criticized Barnett's arguments for the inalienability of certain rights.^[4]

[edit] Biographical information

Barnett is married to Beth Barnett and they have one son, Gary, and one daughter, Laura. Gary Barnett attends Georgetown University Law Center, while Laura Barnett currently lives in Washington, D.C. and works for the Institute for Humane Studies.

[edit] Footnotes

[edit] Bibliography

[edit] Books

• Restoring the Lost Constitution: The Presumption of Liberty (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)

[edit] 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).

[edit] Movies

• InAlienable (2008) – Assistant to Crystal Barry (Marina Sirtis) (InAlienable IMDB entry)

[edit] See also

• Libertarian theories of law
• Libertarianism
• Classical liberalism
• Contract theory
• Default rule
• Philosophy of law
• Lawrence v. Texas
• Lysander Spooner

[edit] External links

• RandyBarnett.com
• The Structure of Liberty
• Co-blogger at volokh.com
• LysanderSpooner.org (page set up by R. Barnett)
• Randy Barnett at the Internet Movie Database