Randy Barnett is a model of concision.

"We don’t need @jaketapper or anyone else to tell us Biden has been increasingly senile since the 2020 election. We need them to tell us who was actually running the federal government from 2020-2024 and how they did it. You’re not coming clean until you come clean about that."

At X.

"One of the more perplexing criticisms we have received is that under our account of the common law rule, the freed people would not be citizens...."

"If our understanding of the rule fails to account for that, then that understanding cannot be right. But our account of the rule does extend birthright citizenship to the newly freed people. To reiterate, by social compact, we do not mean the explicit consent from both parties to citizenship as would be required for a contract between private parties. We mean that allegiance of some kind has been exchanged for protection, remedying the defects of the state of nature. Any child born to someone who had entered into that kind of social compact with America would be a citizen. The newly freed people obviously qualify. In our view, enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless. It was a failure on America's part that it did not provide the protection that it owed in return for that allegiance...."

Write Randy Barnett and Ilan Wurman, at The Volokh Conspiracy, responding to critics of their NYT op-ed, "Don't Assume Trump is Wrong About Birthright Citizenship."

There's a lot more to the Barnett and Wurman response, and here's my post from 3 days ago linking to their original NYT piece.

"Trump Might Have a Case on Birthright Citizenship."

So say lawprofs Randy E. Barnett and Ilan Wurman (in the NYT).

That's a free-access link so you can read the whole thing, which is very tightly written and hard to excerpt. A lot depends on the idea, expressed by Lincoln’s first attorney general, that "The Constitution uses the word ‘citizen’ only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other."

Then Barnett and Wurman ask: "Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws?"

ADDED: Ilya Somin responds with "Birthright Citizenship - A Response to Barnett and Wurman/Their argument for denying birthright citizenship to children of undocumented immigrants born in the US has multiple weaknesses, including that it would also have denied it to former slaves" (Reason).

Taking it well.

If Trump wins, what’s your prediction about how well Democrats will take it? #Resistance https://t.co/eLTDe4meWi

— Randy Barnett (@RandyEBarnett) September 2, 2024

I love that little smile she gets when she sees the opening and how many openings she sees.

She’s way above the average member of Congress in how she questions a witness. Most give speeches or ask prepared questions without an ability to follow up. VP? https://t.co/DBAKc0GYMw

— Randy Barnett (@RandyEBarnett) May 15, 2024

"I think the Commission's summary of the case against court-packing (pp. 79-84) includes much stronger arguments than its overview of the case for it (pp. 74-79)."

"But then again, I myself am a longtime opponent of the idea. Readers can judge the arguments in the report for themselves. The report does reject arguments that court-packing is unconstitutional, such as that advanced in co-blogger Randy Barnett's testimony before the Commission (see also Joshua Braver's response to Randy here). The Commission's conclusion on this point reflects the dominant view among legal scholars, though Randy and Michael Rappaport have offered serious arguments on the other side. I wish they were right, but so far remain unpersuaded."

I'm reading "Biden Supreme Court Commission Issues Final Report/The report doesn't endorse court-packing or term limits. But it's generally more to the latter than the former. It also provides valuable overview of a wide range of SCOTUS-related issues" — by Ilya Somin (at Reason).

If Court-packing ever happens, it will be the Supreme Court that decides whether Court-packing is unconstitutional, and if this happens soon, with the current configuration of the Court, I doubt that "the dominant view among legal scholars" will matter much. 

I feel like quoting the Thoreau adage again — last quoted 10 days ago — "Any man more right than his neighbors constitutes a majority of one already." In this light, Randy Barnett is the majority. Or will be to any Supreme Court that finds itself on the receiving end of a packing plan.

From Barnett's testimony (linked above):

"Here’s hoping the lock down governors who’ve enjoyed exercising their emergency powers will actually take measure to protect public safety. Any bets?"

Randy Barnett tweets.

Here's the argument... in a nutshell.

15/ J. O'Connor cites NFIB and King v. Burwell to show that "Individual Mandate is inseverable from the entirety of the ACA" (with a citation to @RandyEBarnett) pic.twitter.com/5EmePfTqAe

— Josh Blackman (@JoshMBlackman) December 15, 2018

"What if right-leaning jurists listened to their critics on the left, and adopted a 'living Constitution' approach instead of relying on what the Framers understood the text to mean? "

Glenn Reynolds has a go at answering a question asked by Randy Barnett.

One idea is that "the constitutional civil liberties doctrines developed by judges throughout the 20th Century" don't fit the post-9/11 conditions.

Another would be to decide that the administrative state — "a bloated bureaucracy with serious accountability problems" — violates separation of powers.

And maybe the one-person-one-vote approach to legislative apportionment would no longer be seen as an Equal Protection requirement.

And maybe the privacy rights decisions could be seen as "written against a background of hysteria about a 'population explosion'" that no longer exists.

[T]he United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.

The "living constitutionalist" liberals are mostly confident that the Constitution only grows in their direction and thus that conservatives can't get anywhere with their theory.

(That's similar to the way "progressives" feel complacently good about progress — visualizing it out there in the future as a place we want to go. How do they know we'll like it when we get there? Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?)

Are Georgetown lawprofs Randy Barnett and Nick Rosenkranz "flipping a lefty campus-activist trope on its head"?

So says Jesse Singal at  New York Magazine about the email they sent after their colleague Gary Peller saw fit to send out an email setting himself apart from the law school's email that said the law school was mourning Justice Scalia. Peller wrote that Scalia didn't deserve to be "lionized or emulated" because he "bullied lawyers, trafficked in personal humiliation of advocates and openly sided with the party of intolerance in the ‘culture wars’ he often invoked." Barnett and Rosenkranz then wrote that they were upset at Peller's email, heard from from conservative students about "how traumatized, hurt, shaken and angry" they were, and said:

All we can do, really, is convey our solidarity with our wonderful students. We share your pain. We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life. But make no mistake: civil discourse at Georgetown has suffered a grievous blow. It is a time for mourning indeed.

Singal's takes the position that Barnett and Rosenkranz "are adopting campus lefty-speak in the service of a conservative argument."

After all, while some of the concerns about “trigger warnings” and fragile college students are overstated, it’s undeniably true that within a segment of the campus left, a particularly high-strung idea about dissenting views has taken hold: namely, that dissenting views on hot-button issues... actually do psychological harm to students who are exposed to them.... Barnett and Rosenkranz seem to be trying to tap into this idea with their encouragement of students to stay strong in the face of “pain” and “anger” and “traumatization” at … one professor’s email. 

Singal finds it "interesting" that Barnett and Rosenkranz didn't restrict themselves to "'traditionally' conservative argument," like respect for the dead and veneration of the Court. They deployed the kind of arguments that that lefties normally use against conservatives — empathy about emotional damage to fragile young students.

I don't know whether Barnett and Rosenkranz thought about appropriating a left-wing approach. On the text that I'm seeing, they were responding to students, and it was the students who made it about their hurt feelings. Taking it from there, Barnett and Rosenkranz didn't go far into left-speak. They mostly said: Be strong. It would have been funny if they'd gone all out "flipping a lefty campus-activist trope on its head," but humor wouldn't have fit the occasion of the Justice's death, so we don't get to see the extent to which they may have seen that potential.

"Imagine what it takes to live your whole professional and personal life as a 'justice-in waiting.'"

Josh Blackman and Randy Barnett say in a Weekly Standard article titled "The Next Justices/A guide for GOP candidates on how to fill Court vacancies."

Stanford law professor Pamela Karlan was viewed by many on the left as a dream candidate for the Supreme Court. However, in light of her well-documented record of supporting various hot-button liberal causes, she was never even nominated for the Ninth Circuit Court of Appeals. Karlan was the antithesis of the “Little Supreme.” But did she regret it? Not at all: “Would I like to be on the Supreme Court?” she asked rhetorically. “You bet I would. But not enough to have trimmed my sails for half a lifetime.” We are not suggesting that Karlan should be a Supreme Court nominee, but she exposed the truth about SCOTUS-wannabes who “trim their sails” and limit their potential based on a fear of a future confirmation hearing: Such persons lack the character a justice needs.

Karlan explained this with her characteristic forcefulness: “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” Imagine what it takes to live your whole professional and personal life as a “justice-in waiting.” These SCOTUS-wannabes spend their careers seeking the approval of others, in the hopes that one day they will be nominated because of their friendships across the political spectrum....

"The political theory announced in the Declaration of Independence can be summed up... First come rights, and then comes government."

Lawprof Randy Barnett says adding 4 bullet points:

• The rights of individuals do not originate with any government, but pre-exist its formation.

• The protection of these rights is both the purpose and first duty of government.

• Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.

• At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.

"John Roberts is charming and matinee-idol handsome, but does he stand a chance against Ruth Bader Ginsburg with her lace gloves and her questions about society offering skim-milk equality?"

Asks Linda Hirshman in a New Republic article titled "John Roberts' Legacy Problem/Like it or not, liberal decisions are the ones that history celebrates. Just ask Notorious R.B.G."

Hirshman has this quote from Randy Barnett: "We have a media that is so uniformly Democratic, that if you’re a conservative, you’re sort of like a battered spouse... The left controls academia and the law schools and pop culture through Hollywood."

To that, Hirshman adds:

The legal profession—which holds the meetings, conferences, seminars, where so many Supreme Court justices make appearances—also skews liberal... [L]awyers as a group give more donations to the Democrats than the Republicans and to liberal causes rather than conservative causes. This pattern applies at all levels of the profession; as Barnett correctly perceived, elite law professors tend to fall way left on the political spectrum, but even big firm partners give more to D than R. And the pattern does not diminish as you move away from the experience of the Sixties. Younger lawyers actually skew more left than their elders. 

Of course, judges know this. It's in their self interest, if they want to look good in history, to skew left, like the legal academics. You know, I've been here in legal academia since 1984, 9 years before Ruth Bader Ginsburg took her seat on the Supreme Court. She was a federal Court of Appeals judge then and had been since Jimmy Carter appointed her in 1980. And I can remember law professors expressing dismay that she was such a disappointment, that after her first-class women's rights advocacy as a law professor, she'd turned into such a conservative.

"The New York Times is lawyering again in defense of the Affordable Care Act in an editorial tendentiously titled 'More Specious Attacks on Reform.'"

"Hence the tendentious title of this post," writes Randy Barnett, in a post titled "Another 'specious' defense of Obamacare."

In reality, legal arguments typically have two sides and dismissing one as specious (or frivolous) is almost always unwarranted and undermines the credibility of the critic, in this case the editorial writer of the Times. The editorial gets off on the wrong foot here.

There is an old argumentative tactic of characterizing the opponent's argument as frivolous, not passing the "laugh test," etc. Sometimes that should work, but it's overused, notably in the NYT.

In this case, the argument the NYT would like readers to feel free to dismiss out of hand is based on the Origination Clause.

Did you watch the big debate tonight?

You know: the Gary Johnson vs. Jill Stein debate. Of course, I didn't. I was at the Bob Dylan concert. But my son John watched and even live-blogged it. Of course, it's over now, but you can still read the live-blog:

10:24 - Johnson says in his closing statement: "Vote for the person you believe in. That's how you change this country for the better. I'm more liberal than Obama when it comes to civil liberties. I'm more conservative than Romney when it comes to dollars and cents. . . . I made a name for myself [as governor] by being a penny-pincher. . . . I don't know if there's a more important vote right now if you want to register your distaste with what's happening in this country." Johnson ends by asking for 5% of the vote, which will let the Libertarian Party get more ballot access and receive federal matching funds. So, the libertarian's slam-dunk argument for why you should vote for him is that it will let him receive federal-government benefits.

Meanwhile, over at the Wall Street Journal, Randy Barnett makes the argument to libertarians: "Libertarian activists need to set aside their decades-old knee-jerk reactions to the two major parties, roll up their sleeves, and make the Republican and Democratic parties more libertarian."

Randy Barnett talks about winning on the Commerce Clause, but losing the Obamacare case.

"[F]or ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong..."

"... it was about limiting the power of the government by overturning the coercive mandate. That objective was not achieved."

I'm just another lawprof, but I think the Commerce Clause decision matters a lot. Yes, Congress can work around its limit by tapping the taxing power, but it's not politically easy to tax.

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

"No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda..."

"... and Certain Commentators Should be Embarrassed for Suggesting Otherwise."

And from Randy Barnett:

President Obama’s two statements urging the Supreme Court to uphold the Affordable Care Act came the week after the vote was presumably taken by the justices in conference.  Since then we have been subjected to a seemingly endless stream of pundits, professors, and politicians urging the Court for “nonlegal” reasons... to uphold the Act.  All of these statements presuppose that the conference vote was to invalidate the mandate, or there would have been no reason to speak now.  Hence, the specific pressure on Chief Justice Roberts by Senataor Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference.

I think Randy is implying that the news of the vote leaked from the conference.

"[I]f the Democrats, who called this hearing, hoped to blunt the momentum of the legal challenges by showing that the lawsuits had no merit, they failed in their objective."

Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)

Randy says:

If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges. 

Clearly, we've advanced beyond "Are you serious? Are you serious?"

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."

Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing. 

He listened, he really, really listened!

Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.  

Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.

Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater.