Scalia’s and Thomas’ Influence On the Court (Randy Barnett)

In an older interview revisited, I wanted to isolate this comment about the importance of tow Supreme Court Justices and their influence on the Court. Links to the original REASON-TV interview can be found via my post: “Why Merrick Garland Should NOT Be on SCOTUS.”

3rd Party Option Is Realized (RPT Positions)

I suggest that the lover of our U.S. history and Constitution (and other founding documents) listen to this extended interview with professor Barnett via ReasonTV. Here is a snippet that caught my ear from the interview that has ALL the relevance a day after “The Donald” won the delegates in Indiana:

Here is the Professor “3rd Party” column:

Is it time for a new third party? Not yet. But if Donald Trump gets the Republican nomination, then a new third party will be an imperative — and the time for organizing it is now.

I have long vocally opposed third parties as irrational in our two-party system. They inevitably drain votes away from the major party closest to them, thereby benefiting the major party that is even worse. But strategies must adjust to circumstances. If Trump wins the GOP nominations, one of two things will happen, either of which would be disastrous for the Constitution and for the country.

If Trump wins, he’s made clear he cares nothing for the constitutional constraints on the president, or on government generally. His ignorance of our republican Constitution — to match his ignorance of much else — and his strong-man approach to governance would make Trump’s election a political cataclysm second only to Southern secession in its danger to our constitutional republic.

For this reason, millions of patriotic Americans who would ordinarily vote GOP — including most conservatives and all constitutionalists — will never vote for him…


…And let’s be frank. By refusing to credit the legitimate concerns of ordinary Americans, the GOP establishment created Donald Trump. And many K Street Republicans will rush to embrace him because they know he has no principles and will be happy to deal.

What the nation needs is a new party that is expressly dedicated to upholding theConstitution of the United States, however it may cut politically — a party that can attract principled conservatives, but also any American who is tired of crony capitalism, runaway government and rule by an out-of-touch political class.

Should such a party split the GOP vote and throw the election to Hillary, this beats a Trump presidency, which would inevitably remake the Republican Party in the Donald’s own image. And, if Republicans hold onto Congress, divided government under Hillary beats one-man rule by a demagogue and his party.

Could we see a “Rand Paul” figure stand in for the real conservative? People like George Will and others can get behind the movement. National Review and the Weekly Standard can start support this option, called maybe The Federalist Party: Defending Intent Since 1776. We shall see.

Here is an interview with Dr. Barnett about his most recent book, “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People,” Dennis Prager asks some great questions for the layman to access the main idea behind the book:

(During the actual interview portion the audio changes quite a bit. Whatever phone the Professor was on I tried to even out a bit… be forewarned)

  • (Video Description) During the first hour and the third, Dennis Prager was talking about the “heartbeat” of America, it’s philosophy. What is conservatism? Later, Prager interviews author and professor Randy Barnett (Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution). Take note as well that an article was discussed that the Professor wrote for USA Today, can be found here. For more clear thinking like this from Dennis Prager… I invite you to visit as well as Prager University.

Clear thinking in the above interview on our REPUBLIC is expressed as-well-as-is clear delineation between Cruz and Trump… which is why — at the risk of repeating myself… as of early morning on May 3rd — I have finally decided that I will NOT vote for Trump. He has mainstreamed conspiracy stories (RPT and National Review), he has expressed clearly the massive expansion of government over healthcare, free speech, and the like.

I have purchased some URLs to meet a need for a real third party choice:


The State of the Union ~ RPT has Decided NOT to Vote Trump

The Trump people are very similar to the social justice warriors (like #trigglpuff) that drown out reasoned discussion in the arena of free speech. In one call into the Medved Show (on my YouTube channel) a Trumper said if there were a brokered convention (which gave us Lincoln BTW) he would resort to violence. As society becomes more secular and moves away from a classical type of education that teaches people “how to think well,” we will see more emotive reasoning thrown behind opinions. One person told me Cruz did not have “compassion.” I mentioned that acting compassionately with government has gotten us our ever-growing unconstitutional nanny-state. I could care less if Cruz likes me… As long as he is doing his duty according to the document that runs our country and has a plan to curb it’s growth to date (for instance, his flat tax program, whereas Trump said he will raise taxes). Plus this gentleman was wrong (see the Federalist for instance). My view is that if Ted is following and acting oon the spirit of the Constitution… which may, to the modern feminized society seem uncharitable (un loving), it will be in fact the MOST compassionate thing Ted Cruz could do.

I hope another (if it is not Cruz) will be supplemented at the Convention. It is in the hands of the delegates.

Dennis Prager speaks to “American Philosophy” and then has the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center where he teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution–Randy Barnett–on:

“If we are to be mothered, mother must know best…. In every age the men who want us under their thumb, if they have any sense, will put forward the particular pretension which the hopes and fears of that age render most potent. They ‘cash in.’ It has been magic, it has been Christianity. Now it will certainly be science…. Let us not be deceived by phrases about ‘Man taking charge of his own destiny.’ All that can really happen is that some men will take charge of the destiny of others…. The more completely we are planned the more powerful they will be.”


“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. Their very kindness stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severley, because we have deserved it, because ‘ought to have known better,’ is to be treated as a human persons in God’s image.”

C.S. Lewis, God in the Dock (Grand Rapids, MI: W.B. Eerdmans, 2002), 292. (See some helpful links via the Independent Institute. Also Walter Willaims section quoting Lewis.)

This disconnect is amazing to me. What this exchange did for me was solidify that I cannot vote for Trump. Period.

Malcolm Muggeridge (a British journalist, author, satirist, media personality, soldier-spy and, in his later years, a Catholic convert and writer)said it best:

  • “If God is ‘dead,’ somebody is going to have to take his place. It will be megalomania or erotomania, the drive for power or the drive for pleasure, the clenched fist or the phallus, Hitler or Hugh Heffner.”

Ravi Zacharias, The Real Face of Atheism (Grand Rapids, MI: Baker Books, 2004), 32.

Here is a great interview with Professor Randy Barnett:

Here is the video description from

In his forthcoming book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Randy E. Barnett, the intellectual leader of a consciously libertarian legal movement that has hugely reshaped how courts interpret the law, lays out his case for “judicial engagement,” in which judges actively challenge and invalidate laws and policies that infringe on individual rights and freedom. Our Republican Constitution is a powerful rebuke to democratic majoritarianism, which holds that legislators have b

A professor at Georgetown Law School, Barnett has also been at the center of two major Supreme Court cases in the 21st century. He was the lead in 2005’s Raich case, in which the Court ruled that Congress’ power under the Commerece Clause was immense. And, as he recounts in gripping and compelling fashion in his new book, Barnett helped to create the nearly successful (and in his telling, partly successful) challenge to the individual mandate at the heart of President Obama’s controversial health care reform.

Born in 1952, Barnett grew up in the Chicago area, attended Northwestern as an undergad (he majored in philosophy), and went to law school at Harvard, where he was a classmate of Supreme Court nominee Merrick Garland. Garland, he says, is a smart, nice guy who would be terrible from a libertarian perspective because of his reflexive deference to lawmakers under virtually any circumstance. “As a matter of judicial philosophy,” says Barnett. I think he would not be a good justice for us to have”. In the early 1970s, he was associated with the Center for Libertarian Studes and economist Murray Rothbard, whom he says continues to shape his thinking in important ways.

An alumnus of the Institute for Humane Studies and an active participant in the Federalist Society, Barnett is the author the highly regarded and controversial academic books The Structure of Liberty (1998) and Restoring the Lost Constitution (2004). Intended for a general audience, Our Republican Constitution is simultaneously intellectually rigorous and a real page-turner, filled with dramatic anecdotes that illustrate Barnett’s powerful and provocative argument that routine deference to elected legislators is the wrong way to interpret the Constitution or create a rich and flourishing society.

Barnett sat down with Nick Gillespie at Reason’s D.C. headquarters for a wide-ranging conversation about his experiences working in his father’s laundry, his favorite Supreme Court case (that would be Lochner), how he developed his nascent libertarianism at a time when few people called themselves such, why he thinks a new political party may be a necessity, why he thinks Donald Trump is an authoritarian, and why he believes Ted Cruz understands how the Constitution limits government power.

Why Merrick Garland Should NOT Be on SCOTUS

  • For Reason’s full, hour-long interview with Barnett with downloadable links, go HERE

Georgetown Law’s Randy Barnett says his former Harvard Law classmate, Merrick Garland, is “qualified” for the Supreme Court.

But that doesn’t mean the Senate should confirm him.

Basic qualifications for a seat on the Supreme Court are “necessary but not sufficient,” says Barnett, whose new book, Our Republican Constitution, lays out his case for “judicial engagement,” in which judges actively challenge and invalidate laws and policies that infringe on individual rights and freedom. Our Republican Constitution is a powerful rebuke to long-dominant democratic majoritarianism, which holds that legislators have broad powers to effectively do whatever they want. Judges, in this reading of law, should defer to the wishes of lawmakers and government agencies.

Since the confirmation of recently deceased Antonin Scalia, Senate hearings have rightly focused not just a nominee’s “qualifications,” explains Barnett, but on his or her “judicial philosophy.” And on that score, he says, Garland would be terrible for people who care about limiting and restraining government. “He is a deference guy, par excellence. He defers to the EPA, he defers to administrative agencies, that guy defers like crazy,” says Barnett. “And for that reason, I do not think he would be a good justice for us to have.”


Reason: We’re going through a kind of a non-confirmation confirmation period. Do you think that—

Randy Barnett: My section mate in law school, Merrick Garland.

Reason: Okay. Well, I was going to ask you—is Merrick Garland Supreme Court worthy and is it wrong to deny him even a confirmation hearing?

Randy Barnett: Merrick Garland who was my classmate was one of the stars of the section. He was one of the gunners in the class that would challenge the professors the entire year. We all looked up to him and a couple of other people who were like in that upper echelon and he’s a very very decent human being. Would be a wonderful adherent to the democratic Constitution. He is a deference guy. Par excellence. He defers to the EPA. He defers to administrative agency. That guy defers like crazy. And for that reason, as a matter of judicial philosophy, I think he would not be a good justice for us to have, so I would be opposed to him. But on character and fitness grounds and ability grounds—

But you see, part of the problem is evaluating justices on the basis of so-called “qualifications.” As long as everybody was in agreement in the democratic Constitution, the post-New Deal understanding of what constitutions should be, which Republicans and Democrats were all in agreement about, then at that point, all you’re interested in is qualifications—how smart are you, how good are you, because everybody basically agrees, but now we have a fundamental disagreement about the Constitution, starting with the Scalia appointment and, I mean, to some extent with Rehnquist, but Rehnquist, then Scalia, then Thomas, we have a disagreement about the Constitution.

Now, qualifications aren’t enough. What you need is what Joe Biden used to say you have to look for and that is judicial philosophy and that gets us back to originalism. That is what a justice should be—an originalist, first and foremost.

Reason: Let me ask this—

Randy Barnett: So let me just say—qualifications are necessary but they’re not sufficient.

Reason: This is a political question, not a legal one or a judicial one, but does it make sense for— Then is it legitimate for the Republican Senate essentially to forestall, to run the clock out on Garland’s appointment or confirmation possibility. Is it legal to do that, and I guess it is, but is it proper to do that simply because you don’t want to give the sitting president a shot at it?

Randy Barnett: It’s every bit as constitutional. I mean, it’s completely constitutional. In fact, I haven’t heard a serious argument. Nobody makes a serious argument that it’s not constitutionally permitted. It’s all an argument about, as you say, whether it’s proper or not and the Senate is as entitled to veto or fail to consent to a nominee as the president is to select somebody. The president did not select me or someone like me, he selected my classmate Merrick, and therefore he discriminated against me and he went with Merrick instead and it’s a perfectly appropriate for the Senate to say we disagree about him and whether there needs to be a hearing or not actually at that point I would say there should not be a hearing because given that we are in the election cycle, given that this appointment’s going to last far beyond this president’s tenure, it’s something that ought to be made an issue at the next election. It’s something that the people as voters, the electorate, should have a say-so in how this Court’s going to look in the future.

(Reason Page 7)