Liberty and Randy Barnett on Minnesota Public Radio

Randy Barnett, author of Restoring the Lost Constitution, talks to MPR's Kerri Miller on Midmorning today. Here is the audio.

I met Barnett years ago at an IHS seminar when he was still a young professor at Chicago-Kent School of Law. He's come up in the world, arguing in front of the Supreme Court in the California medical marijuana case (Gonzales v. Raich) and landing a new position as Professor of Legal Theory at Georgetown Law Center. I read his book on the constitution a year ago November, and it comes closest to my starting point in thinking about government.

In this interview on MPR, Randy and Kerri have a wonderful conversation on the topic of liberty. I was particularly pleased to hear that Barnett's legal case defending the use of medical marijuana lives on. According to Barnett, after his defeat in the Supreme Court last year, he is rearguing the case in the 9th Circuit on the basis of individual rights, instead of the commerce clause.

In short, Barnett argues for a "presumption of liberty". He writes:

The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers. Judicial redaction has created a substantially different constitution from the one written on parchment that resides under glass in Washington. Though that Constitution is now lost, it has not been repealed, so it could be found again.

Barnett also edited two volumes of essays on the Ninth Amendment The Rights Retained by the People Volume I Volume II. For those who are not familiar with the 9th amendment, here it is:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Barnett does not argue that the United States Constitution is perfect. For example, we both see Article I, Section 8, Clause 8, as a defect (Restoring the Lost Constitution, p. 355). He does argue that changes must be made deliberately with debate and amendment, not by ignoring the language.