Georgetown Law Professor Randy Barnett on the Constitution and Originalism

On November 4th, 2017, Randy Barnett spoke at the Buckley Program’s conference on The Constitution and the Courts.

Randy Barnett is a professor of legal theory at the Georgetown University Law Center and as well as Director of the Georgetown Center for the Constitution. He is a leading scholar in constitutional originalism, and has written twelve books, including his most recent: “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People,” released in 2016. A graduate of Harvard Law, he worked for years as a prosecutor in the Cook County States’ Attorney’s Office in Chicago. He has been the recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, and has been a visiting professor at Penn, Northwestern, and Harvard Law School.

By: Sophia Morales

Sophia: You’re director at the Georgetown Center for the Constitution – could you start by telling me a little bit about your organization?

Randy: We’ve been at Georgetown since 2012, with the mission to examine how written constitutions can be faithfully interpreted and applied. The center is committed to the idea of originalism as the appropriate method of interpretation. That’s the approach, but there are still disagreements among originalists, and everyone working at the center is dedicated to pursuing and exploring different theoretical interpretations. One of our main goals is to bring some diversity to the law school in the form of diverse views on the constitution, which is why we have our student fellows program. We also have annual lectures, an originalist bootcamp where  law students can study originalism for a week in the summer, and a new book prize named for Justice Thomas Cooley.

Sophia: What would you consider the biggest challenge to interpreting the Constitution in the present day?

Randy: The biggest challenge is winning the debate over whether to interpret the constitution according to its original meaning or whether judges should get to update it. Originalism is actually doing well in the debate right now, but we’re trying to make the argument more widely known, to advocate it, and to develop it – which is a lot of what we focus on at the Center for the Constitution. We don’t have all the answers. For example, there’s some debate about exactly what the scope of meaning is – is it limited to the public meaning? Does it include its legal meaning? Does it include the practices at the time?

Sophia: In your opinion, what do we need to keep in mind when interpreting the Constitution?

Randy: The meaning of the constitution should remain the same until it’s properly changed by amendment. We have to remember that the Constitution is the law which governs those who govern, and those who are to be governed by it can’t change those laws any more than we can change the laws that govern us. The amendment in article five of the constitution is the way we should be able to change it – judges and congressmen can’t do so because they are the ones who are supposed to be governed by it.

Sophia: Is there any Constitutional issue in particular that you feel is especially misinterpreted on a wide scale?

Randy: There is a lot about the Constitution that is either misinterpreted or ignored. Among them are the enumerated powers of Congress which Congress has greatly exceeded. That’s the biggest one. If we could bring Congress back within its powers, the states could do a lot more, and the competition between states could protect freedom better than the courts can. Freedom is the most important thing we have to protect. It states clearly in the Declaration of Independence that the purpose of government is to secure individual liberties and the purpose of the Constitution is to hold the government to that function.

Sophia: You mentioned that appointment of justices to the supreme court is hugely important in defending originalism. Do you think that things are looking up under the current administration?

Randy: I think we dodged a huge bullet. The courts under President Obama had really moved away from originalism, and if we had 8 more years of that than ⅔ of appointments to the supreme court would be anti-originalist. President Trump has honored his commitment to appoint originalist judges, and he deserves a lot a credit for that. There’s a lot of good news right now. In the short run, we’re getting some great judges, and academics have been developing the theory of originalism to make it more resistant to criticism. There were a few people in opposition back when Bork was nominated, and now only one has testified against Gorsuch – that’s largely a result of the progress that has been made on the theory of originalism. It’s a lot harder to disparage.

Sophia Morales is a junior in Trumbull College.