Is ObamaCare constitutional? “If you ask any constitutional law professor whether Congress can do something, the answer is always yes,” says Randy Barnett. But Mr. Barnett, who teaches legal theory at Georgetown, isn’t just any law professor. A self-described “radical libertarian,” he is the author of a 2004 book, “Restoring the Lost Constitution,” that argues for a fundamentally new approach to jurisprudence.
Since the New Deal, Supreme Court justices have generally assumed a law is constitutional and overruled it only when it infringes on an individual right that is enumerated in the Constitution (free speech) or not (privacy). “If you’re talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable,” Mr. Barnett says.
Instead, Mr. Barnett would have the court adopt a “presumption of liberty,” placing the burden on the government to show that a law has a clear basis in Congress’s constitutional powers. “The easiest way to explain it is, it would basically apply to all liberty the same basic protection we now apply to speech,” he says.
It’s an attractive theory to those of us with libertarian sympathies—a group that seems to be growing in reaction to the Obama administration’s unprecedented expansion of federal power. But Mr. Barnett, 58, readily admits there is virtually no chance the high court will embrace it during his lifetime. “On the Supreme Court now, probably only Clarence Thomas would be willing to question what the law professors call the ‘post-New Deal settlement.’”
No one can accuse this theorist of being an ivory-tower intellectual lacking real-world experience. As a child, he was an avid fan of the 1960s TV series “The Defenders” and aspired to become a criminal lawyer. This he did, taking a job out of law school as a Chicago prosecutor. But he also had a scholarly side: “I realized that one day I would want to be a law professor, [a job] in which I could write about these things—not so much to tell people what I thought was just, but to figure out for myself what justice really is.”
“I became sort of pulled into the constitutional law world,” he says, an area of study to which he was initially cool. “I was trained in law school to believe that all the good parts of the Constitution were gone. And if they’re not going to respect the good parts, I’m not really all that concerned about the remaining parts.”
One of those “good parts” is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In 1998, Judge Charles Breyer of California’s Northern District (younger brother of Justice Stephen Breyer) asked lawyers in a medical marijuana case to brief him on its Ninth Amendment implications. The defense lawyer, Robert Raich, came to Mr. Barnett, one of the few scholarly experts on the subject, for help.
In 2004, Mr. Barnett appeared for the first and only time before the Supreme Court, arguing the case of Gonzales v. Raich on behalf of Mr. Raich’s then-wife, who had been busted by the Drug Enforcement Administration for growing marijuana for her personal medical consumption.
Did the federal government really have the power to do this? In Wickard v. Filburn (1942), the Supreme Court had held that it was constitutional to force a farmer to destroy “excess crops” rather than use them himself. But Mrs. Raich was not a commercial farmer. Nonetheless, in 2005, by a 6-3 vote, the court held that the federal government’s authority under the Commerce Clause—which authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”—”includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.”
Raich continued a jurisprudential trend, started during the New Deal and interrupted only by a couple of narrow decisions by the Rehnquist court, of construing Congress’s power under the Commerce Clause very broadly. This is why ObamaCare proponents are so confident it will pass constitutional muster.
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