Randy Barnett

If you want to go deeper into this topic, as we will in a future episode of this series, you could also read Dr. Pastrito's 2021 book, America Transformed, or his colleague, Dr. Kevin Slack's War on the American Republic.

In his 2015 book on similar themes called By the People, Charles Murray recommends the classical liberal constitution and how progressives rewrote the constitution, both by law scholar Richard Epstein, Restoring the Lost Constitution by law professor Randy Barnett, and The Dirty Dozen by Robert Levy and William Miller.

Here's Dr. Pastrito.

The way the big controversies are, the way they tend to go today, is that it's a fight between the two unelected branches of government, the courts and the bureaucracy, over which of them is going to control policy.

But in fact, Rothbard kept plugging away on extending the libertarian framework with pieces throughout the 1970s.

One on punishment is cited and extended in Randy Barnett's new book on libertarian legal theory.

Society Without a State appeared in 1978.

Quest for the Historical Mises appeared in 1981.

exactly.

And so this, uh, I mean this, my participation in this paper grew in part out of a seminar I taught here at Chicago on the original meaning of the privileges of immunities clause, which is just something I, you know, there've been a lot of books by, you know, Randy Barnett and Chris Green and Kurt Lash, all set different things.

And I said, well, why don't we just get, get together and try to read them all and figure out what's going on.

And, you know, one – I mean, there are several fascinating things about just trying to dive into this, all of which, you know, you know well, which is, you know, everybody kind of recounts a lot of the same pieces and then emphasizes different parts of them and there are sort of weird contradictions.

Well, of course, it's the 11th year of the United States independence, but it wasn't the 11th year of the declarations having some kind of ruling significance.

So I don't think we can look to it for any significant role in our legal system, although I very much wish we could do what Randy Barnett, professor at Georgetown, has suggested, which is to say, treat the declaration as creating a presumption of liberty.

Yes, the government can prevail if it can show that there's a need.

to do whatever it is that's being challenged, but the presumption should be that of liberty.

mistaken decision.

That is part of the legal system in which I operate and have done for 40 years as a judge, but it galls me every time that the citizens coming before the court have the burden of proof in this.

So in any event, like Randy Barnett suggested, a presumption of liberty.

Let the government prove its case.

To say this would buy into this kind of incorporation that simply is not part of the 14th Amendment.

I mean, look, Randy Barnett says it is.

I don't think so.

I agree with Raoul Berger on this particular situation.

It's depressing.

Uh, but, uh, uh, I'd been at the Cato Institute libertarian think tank for nearly 15 years, but got an opportunity to have a different kind of impact, to head up this, this Center for the Constitution at, at Georgetown Law that had been founded by Randy Barnett, uh, uh, a, a leading constitutional, uh, scholar, and I thought, "This is interesting.

I'll, I'll, I'll do this." Uh, a few days before I was to start that new role, uh, was when Justice Breyer announced his retirement from the Supreme Court.

Oh.