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Randy E. Barnett (born February 5, 1952) is a lawyer, a law professor at Georgetown University Law Center, and a legal theorist in the United States. He is noted for his libertarian theory of law and his work on contract theory, constitutional law, and jurisprudence.

After attending Northwestern University in Evanston, Illinois, and Harvard Law School in Cambridge, Massachusetts, Barnett worked as a prosecutor in Chicago, Illinois. Barnett's first academic position was at the Chicago-Kent College of Law of the Illinois Institute of Technology. He later became the Austin B. Fletcher Professor of Law at Boston University, where he served as the faculty adviser for the Federalist Society. He joined the faculty of Georgetown University Law Center in 2006. Barnett is a Senior Fellow of the Cato Institute and the Goldwater Institute. His book The Structure of Liberty won the Ralph Gregory Elliot Book Award in 1998.

Contents 1 Jurisprudence 2 Constitutional theory 2.1 Ninth Amendment 3 Contract theory 4 Biographical Information 5 Footnotes 6 Bibliography 6.1 Books 6.2 Articles 7 See also 8 External links

In The Structure of Liberty, Randy Barnett offers a libertarian theory of law and politics. Barnett calls his theory the liberal conception of justice, emphasizing the relationship between legal libertarianism and classical liberalism. Barnett argues that private adjudication and enforcement of law, with market forces eliminating inefficiencies and inequities, is the only legal system that can provide adequate solutions to the problems of interest, power, and knowledge.

Barnett discusses theories of constitutional legitimacy and methods of constitutional interpretation in Restoring the Lost Constitution.

There have been several criticisms and reviews of Barnett's theory, including:

• N. Stephen Kinsella, Knowledge, Calculation, Conflict, and Law, 2 Q.J. AUSTRIAN ECON.).
• Richard Epstein, "The Libertarian Quartet", REASON, Jan. 1999 (avail. online at: http://reason.com/9901/bk.re.thelibertarian.shtml).
• David N. Mayer, Book Review, The Structure of Liberty, 20 CATO J.).
• Lawrence B. Solum, Book Review, The Structure of Liberty: Justice and the Rule of Law, 97 Mich. L. Rev.).
• John K. Palchak & Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order, 38 GONZ. L. REV.).

Barnett has also done work on the theory of the United States Constitution, culminating in his book Restoring the Lost Constitution. He argues for an originalist theory of constitutional interpretation, and for constitutional construction based on a presumption of liberty.

Barnett was also a lead lawyer for the plaintiffs in Gonzales v. Raich, which won a victory before the Ninth Circuit, ruling that federal action against legal marijuana patients violated the Commerce Clause. Barnett's side, however, lost when the Supreme Court ruled on June 6, 2005, that Congress had the power to prevent states from legalizing medical marijuana.

Barnett is also known for his work on the history and original meaning of the Second and Ninth Amendments to the United States Constitution. Barnett has advanced the view that the Second Amendment protects an individual right to bear arms, albeit one subject to federal regulation under Congress's power to organize the militia in Article I, Sec. 8 of the Constitution.

Barnett is a leading proponent of the view that the Ninth Amendment's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote:^[1]

“

The purpose of the Ninth Amendment was to ensure that all [enumerated and unenumerated] individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal powers.

”

Regarding what stature and force natural rights had before some of them were enumerated, Barnett says that federal courts did not have authority to enforce such rights against the states. He wrote in the same 2006 article:

“

It was only with passage of the Fourteenth Amendment ... that the federal government obtained any jurisdiction to protect the unenumerated retained natural rights of the people from infringement by state governments.

”

A related issue is whether the original unamended Constitution gave federal courts authority to enforce unenumerated natural rights against congressional regulation of the federal district. Barnett has given different answers to this question. On the one hand, Professor Barnett has indicated that federal courts did have such authority, when he said that enumerated rights "had the same stature and force" in the district even before they were enumerated. On the other hand, Barnett has indicated that the case of Bolling v. Sharpe (dealing with integration of public schools in the District of Columbia) should perhaps be overturned, which suggests that federal courts did not have authority to enforce natural rights against congressional regulation of the federal district.^[2]

The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. In 2003, Professor Barnett wrote:^[3]

“

Just as the Fourteenth Amendment extended protection of the enumerated rights of the first eight amendments to violations by state governments, so too did it extend federal protection of the pre-existing unenumerated rights "retained by the people."

”

If no such federal constitutional protection of unenumerated rights existed in the federal district prior to the Fourteenth Amendment, then only enumerated rights may have been extended by the Fourteenth Amendment.

Barnett is also known for his work in contract theory. In that field he has advanced a distinctive theory of contract formation that emphasizes the intention to be bound as the key to contract law. He is also known for his work on the idea of a default rule, i.e. a rule of contract law that binds the parties if their contract does not cover the eventuality or condition that is the subject of the default rule.

Barnett is married to Beth Barnett and they have one son and one daughter. His son Gary Barnett attends Georgetown University Law Center. His daughter Laura Barnett is currently living in Washington, D.C. and works for the Institute for Humane Studies.

1. ^ Randy Barnett, The Ninth Amendment: It Means What It Says, 85 Texas Law Review 1 (2006)
2. ^ Legal Affairs Debate Club, Constitution in Exile? Cass Sunstein and Randy Barnett Debate. (May 4, 2005)
3. ^ Randy Barnett, Proper Scope of the Police Power, 79 Notre Dame Law Review 429 (2004)

• Restoring the Lost Constitution: The Presumption of Liberty (2004)
• The Structure of Liberty: Justice and the Rule of Law (1998)
• Contract Cases and Doctrine (1995, 2ed 1999, 3ed 2003)
• Perspectives on Contract Law (1995, 2ed 2001)

• Randy Barnett, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (Social Science Research Network 2003).
• Randy Barnett, "Restitution: A New Paradigm of Criminal Justice" (Ethics 87, no. 4, July 1977).

• Libertarian theories of law
• Libertarianism
• Classical liberalism
• Contract theory
• Default rule
• Philosophy of law
• Lawrence v. Texas
• Lysander Spooner

• RandyBarnett.com
• The Structure of Liberty
• Co-blogger at volokh.com
• LysanderSpooner.org (page set up by R. Barnett)