Randy Barnett’s absorbing new memoir begins, like any good story, in medias res: with his trailblazing oral argument before the U.S. Supreme Court, in the landmark Gonzales v. Raich case, on behalf of individual freedom — a fitting vignette for a book bearing the title A Life for Liberty.
A constitutional law professor at Georgetown and one of America’s leading originalist scholars, Barnett charts his personal, legal, and philosophical development from his childhood in Calumet City, Illinois, through college at Northwestern and law school at Harvard. He also chronicles how he first caught the originalism bug and how it and his Raich performance propelled him to academic success. His enjoyable, lovingly illustrated, and charmingly self-deprecating account of his life is equal parts raucous romp and ideological treatise.
Raised in the ’50s and ’60s in Cal City, a Chicago suburb hard-up against the Indiana state line that played home to the Blues Brothers and Al Capone’s bootleggers, Barnett attended school as one of the only Jewish children in the neighborhood. He imbibed his father’s combativeness and “razor-sharp critical thinking faculties” and his mother’s traditionalism and dedication, standing out as a young debater on behalf of Barry Goldwater’s quixotic White House bid. He stared down antisemitic bullies in the majority-Polish Catholic town, rising to become student council president in high school.
At Northwestern, Barnett began to cultivate the libertarian philosophy he still espouses. Encounters with Ayn Rand’s and Murray Rothbard’s writing led him to understand that “to embrace libertarianism as the best possible way to increase liberty and human flourishing was to be persuaded of it not in a single, astounding, mystical experience but through devotion to reason and logic.” His mentor, the philosophy legend Henry Babcock Veatch, nurtured his commitment to analytical rigor.
And at Harvard Law, Barnett discovered how libertarianism and law could best be integrated, even as he began to appreciate academia’s progressive bent. He was fortunate to rub elbows with Rothbard himself, as well as legal conservatives such as Richard Epstein and Charles Fried, but also with liberal lions such as Ronald Dworkin and Lloyd Weinreb. Yet he confesses his grades were poor and that he lined up neither a cushy law firm job nor a prestigious clerkship after graduation. Instead, he returned to Chicago to become a prosecutor, obtaining practical experience at trial.
But the academy beckoned. Barnett’s love for teaching and pursuing broader ideas led to his first posting at the Chicago-Kent School of Law, thanks to a helping hand from Epstein. There, his students “forced me to be a better teacher, a better communicator of the basics,” and he developed expertise in contract and constitutional law. He soon moved on to Boston University and then, in 2005, to Georgetown, where he currently teaches. “I really only began to love teaching law when I got to Georgetown,” Barnett admits, because his students’ “pushback makes teaching more stimulating for me. It forces me to think harder about what I am saying.”
That final move to an undeniably top-tier school reflected not only the Raich argument but Barnett’s blossoming interest in originalism, which was sparked by a 1986 conference organized by a budding Federalist Society. He took up the Ninth Amendment, which reserved to the people the unenumerated rights “retained by the people,” publishing a seminal law review article. And when he came across the argument by Lysander Spooner, a mid-19th-century abolitionist philosopher, that what matters isn’t what lawmakers intended when drafting legislation but how the meaning of that legislation was understood at the time of its enactment. “Identifying the public meaning of the words in the text,” he writes, “was much more manageable” than discerning the legislators’ intent.
Barnett would go on to publish numerous scholarly books and articles about both the theory and practice of originalism. These professional triumphs led him in the early 2000s to the Raich case, which Barnett unqualifiedly acknowledges as the signature moment of his career and which embodied the essence of his ideological thrust at vindicating individual rights threatened by the state. Angel Raich grew marijuana in California solely for her own personal medical use at a time when the Golden State, but not the federal government, authorized such use. Raich, whose husband had previously collaborated with Barnett on a related case, sued the Department of Justice and the Drug Enforcement Administration for exceeding their powers under the Constitution’s commerce clause.
Drama unfolded during the appeal when the massive law firm brought in to handle the case balked at designating Barnett the team’s principal oral advocate. But the client’s wishes prevailed, to Barnett’s personal and professional satisfaction: “I was the better choice,” he writes, “precisely because I had the credibility with the conservative justices with whom I shared a commitment to reining in federal power.”
The blow-by-blow of the oral argument is riveting in Barnett’s retelling, and while the high court ultimately ruled against Raich, he identifies several silver linings. First, he had the privilege of arguing in front of his family, noting that “perhaps the greatest part of this singular moment was knowing that my dad, my first mentor, was there to witness it.” Second, he seems to have greatly enjoyed himself parrying the justices’ tough questions. And third, he struck two blows for liberty: first, by cementing the Supreme Court’s commitment to earlier precedents that limited commerce clause legislation to explicitly economic activity, and second, by swelling the sea change in public opinion of the personal consumption of cannabis. (Amusingly, Barnett maintains that he nevertheless has never himself smoked marijuana.)
On the strength of Raich, in the early 2010s, Barnett became the public face of the argument, initially deemed ludicrous but subsequently validated, that Obamacare was unconstitutional because its individual insurance mandate violated the commerce clause. “On the government’s theory,” Barnett contends, “if it could make you buy insurance because it was convenient to the regulation of the national economy, what couldn’t it make you do?” Here, once again, the Supreme Court recognized Barnett’s constitutional principle but notoriously upheld Obamacare on dubious technical grounds.
A disappointed Barnett then set about, from his perch in Washington, to ensure a genuinely originalist majority controlled the high court. He played important roles in the confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all of whom forthrightly identified as originalists during their confirmation hearings — a first since the failed 1987 Bork nomination. Even Democratic-appointed Supreme Court Justices Elena Kagan and Ketanji Brown Jackson have, however grudgingly, espoused originalism.
Barnett concludes by sagely observing that “while there will never come a time when our liberty is permanently secured,” there “may well come a time when our liberty is permanently lost.” His memoir represents a well-deserved victory lap in the latter half of a roundly successful and fulfilling career, but he reminds us that there’s still much work to be done.
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Michael M. Rosen is an attorney and writer in Israel and a nonresident senior fellow at the American Enterprise Institute.