Randy Barnett on Liberty at Notre Dame

We were fortunate today at Notre Dame Law School to host constitutional-law scholar (and blogger) Professor Randy Barnett. Professor Barnett's talk, sponsored by Notre Dame's very active Federalist Society, consisted of an outline and defense of his new book, "Restoring the Lost Constitution: The Presumption of Liberty." My colleague, Tricia Bellia, provided an insightful response.

Barnett's argument includes the claims that (a) the Supreme Court has interpreted incorrectly the Constitution's enumerated-powers provisions, thereby dramatically expanding the powers of the federal government, at the expense of individual "liberty," and (b) the Court has failed to appreciate and enforce the liberty-protecting limits that properly constrain the exercise of the "police power" by the States. In a nutshell, Barnett says that, at present, our constitutional landscape is "islands of individual liberty in a sea of government power" when it should consist of "islands of government power in a sea of individual liberty."

Barnett's arguments, and his new book, are important and provocative. Many of them, in my view, are convincing. Also, it has been interesting for me to reflect on how different understandings of what "freedom" really is, and what it is for (see generally, John Garvey, What Are Freedoms For) lead to different conclusions about the propriety of certain state actions, even among those who are sympathic -- as I am -- to many of Barnett's libertarian positions and premises. Professor Barnett's liberty-protecting theory proceeds, it appears, from claims about natural rights, the public-private distinction, and the "harm principle." Another freedom-protecting theory -- one that is no less committed than is Barnett to the moral priority of individual rights and private associations over the state -- might proceed instead from (Catholic?) claims about truth, virtue, and the common good. See, for example, Avery Cardinal Dulles's essay, "John Paul II and the Truth About Freedom," and George Weigel's paper, "A Better Concept of Freedom."

In any event, Professor Barnett's talk, like his work generally, was engaging, open-minded, and challenging. I would recommend that any "Mirror of Justice"-reading law students (and I hope there are a few!) take Barnett's claims very seriously. If you think he is wrong, be sure you can explain why.

Rick