Published on June 7, 2016
1. Financial Myth Busting with Dawn J. Bennett Dawn J. Bennett Interviews Randy Barnett, Law Professor and Author
2. Dawn J. Bennett, host of Financial Myth Busting and founder and CEO of Bennett Group Financial Services, recently interviewed Randy Barnett, law professor and author. In the interview, Barnett discusses his new book, Republican Constitution: Securing the Liberty and Sovereignty of We the People, the passage of Obamacare, and more.
3. • Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts. • He is the recipient of the Guggenheim Fellowship in Constitutional Studies and the Bradley Prize. • He has authored 11 books, including his most recent title, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. About Randy Barnett
4. A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic. Barnett’s Latest Book
5. "I've heard all my life that we live in a republic and not a democracy, but I was never entirely clear on what the difference was. And if you look up republic in the dictionary, it's defined by many dictionaries as representative democracy, so that really doesn't help you very much. What I discovered in the course of trying to figure out what the appropriate role of judges is in our country, under our constitution, is that republicanism took on a new meaning when we had our constitution,” explains Barnett. “And it's a meaning based on two different readings of 'We, the people.' So let's just take 'We, the people.' If you think of 'We, the people' as a group, and then 'We, the people' as a group are supposed to rule according to their will, the will of the people, so to speak, the only way that works is if a majority of the people get their way; that's how the will of the people is reflected. And so we need a democratic constitution that provides a mechanism by which the majority can express their will. In such a society, in such a constitution, judges are problematic, because they're not elected, they're not representative, and if they invalidate a law, they're getting in the way of the will of the people…" Democratic Constitution vs. Republican Constitution
6. "So judges are bad. And a republic conception of 'We, the people' is based on 'We, the people' as individuals, each of whom have unalienable rights to life, liberty, and the pursuit of happiness. And then the next line of the declaration says: 'To secure these rights, governments are instituted among men'. So first come rights, and then comes governments, and the government's purpose is to secure out pre-existing rights, and we need a constitution, a republican constitution, to both empower the government, so they can secure our rights, but also to protect us from the government's violating our rights. And in that world, judges play a very important role, because they, too, are serving the people, and part of the job they have is when the rights of the individual citizen are being violated by the government, judges should be able to step in and protect us from our servants in the legislature. In other words, the legislature does not express our will. They are not us. They are our servants and need to be held in line, and judges play a very important role in that." Democratic Constitution vs. Republican Constitution
7. Dawn J. Bennett: So Randy, since the beginning days of the American Republic—I want to make sure I've got this right—'We, the people' have been viewed both as individuals and as a group, and that's what leads us to two different constitutional visions, right? Randy Barnett: Well, I think in the very beginning, 'We, the people' was viewed as an individual, primarily. As I describe in the book, it was only in the 1820s and '30s with the formation of the new democratic party, which is the one that we have today, did they come up with this notion of the will of the people, which they really took from Rousseau. Rousseau was not a philosopher that influenced the founders; the founders were influenced by Locke and a bunch of other enlightenment philosophers. But Rousseau had this notion of the popular will or the will of the people, and they organized their political party around the idea that they, that one party—they called themselves the democracy—that party would represent the will of the people, their party alone. And that's kind of where that will of the people idea became popularized for the first time in the United States, was in the 1820s and '30s. We the People
8. Bennett: The founders' vision actually extolled life, liberty, and property and happiness, but again, in this world today, in 2016, that triad is no longer being honored anymore; would you say that's true? Barnett: Well, it's being honored a lot less than it should be. I mean, we wouldn't have a functioning society at all if we didn't have private property and we didn't have contracts; we do have private property, we do have contracts. But the more they get interfered with unreasonably by the government, the less well they do their job. And so we live in a country where our economy and out interactions are not as prosperous or as good as they could be if we really did have a more robust protection of our property, as well as our ability to enter into contracts of our choosing. The Founders’ Vision
9. Bennett: Now, Randy, you represented the National Federation of Independent Business and its lawsuit against Kathleen Sebelius. I think you were seeking to have ObamaCare declared unconstitutional. Barnett: Correct. Bennett: Unfortunately Chief Justice Roberts, for a second time, disagreed. Do you think he's lost sight of the constitution as a document meant to protect individual rights, as opposed to the supposed collective right? Obamacare
10. Barnett: Yes. Very good question. This book was immediately provoked by my role in the ObamaCare case, where we got five justices to agree with us that an individual insurance mandate was beyond the power of congress to enact. So we had five votes; normally, when you win on the law, you win the case. But one of those votes, Chief Justice Roberts, turned around, and he said because he owed deference to the will of the majority in congress, he was going to give the statute a meaning that was not its natural meaning, but another meaning, a permissible meaning, which is that you had an option to buy health insurance, even though the statute said requirement, and you didn't have to pay a tax if you don't, even though the statute said penalty, and because of that he could uphold the law. And why was that? Because it was the job of the courts to defer to the majority will in congress if he possibly could. That is the democratic constitution. So what I wrote the book about was to explain; it's not enough to get the constitution right—we had five votes for getting the constitution right—you also need to get the role Obamacare
11. Bennett: You know, the Affordable Care Act seems to be full of what I would call inartful drafting. And in my understanding, it was written behind closed doors, rather than through the traditional legislative process, and it was also passed using unusual parliamentary procedures. Does that mean that the act really doesn't reflect the type of care and deliberation that one might expect of such a big, important legislation? Barnett: Oh, absolutely. In fact, in my view, it was never intended to become law; it was intended to get 60 votes in the senate, and then, with the senate voting out their bill—the house had already voted out a completely different bill—it would go to conference committee. They would then agree on what the real bill was going to be, and who know what that would've been? Then they'll go back to both houses, and everybody would vote for that bill. But what happened is that Senator Ted Kennedy died, there was a replacement election, and the Tea Party organized to elect Scott Brown, who denied the Democrats the 60 vote threshold they needed in the senate, and as a result, the house had to either accept the senate bill in its entirety or get nothing at all, and they chose the senate bill. But what we got was a half-baked measure that was only meant to get out the door of the senate. Inartful Drafting
12. Bennett: So isn't that bypassing the political process established by the constitution? Barnett: Well, it was all done under the rules. The house was free to accept the senate's version. It isn't the way it's normally done, but it was done to get around the Tea Party's effort to use elections and the normal procedures to block the implementation of what was an unpopular law then and remains an unpopular law to this day. So it wasn't unconstitutional, the way it was passed, but they overrode every safeguard a republican constitution puts in the way of enacting legislation. Was Obamacare Unconstitutional?
13. To learn more about Barnett’s book and to view his full interview with Dawn J. Bennett on Financial Myth Busting, please click here. Learn More