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Randy E. Barnett (born February 5, 1952) is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States. He writes about the libertarian theory of law and contract theory, constitutional law, and jurisprudence.
Barnett was born into a Jewish, but largely non-observant family and lived in Calumet City, Illinois during his early years. 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 as the Carmack Waterhouse Professor of Legal Theory. Barnett is the founder and director of the Georgetown Center for the Constitution. 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. In 2008 he was awarded a Fellowship in Constitutional Studies by the John Simon Guggenheim Memorial Foundation. Barnett was a 2014 recipient of the Bradley Prize.
- 1 Jurisprudence
- 2 Constitutional theory
- 2.1 Ninth Amendment
- 2.2 Constitutional Conservatism and Judicial Constraint
- 2.3 Repeal Amendment
- 2.4 Bill of Federalism
- 2.4.1 History
- 2.4.2 Ratification Strategy
- 2.4.3 Amendments of the Bill of Federalism
- 184.108.40.206 Amendment I – Restrictions on Tax Powers of Congress
- 220.127.116.11 Amendment II – Limits of Commerce Power
- 18.104.22.168 Amendment III – Unfunded Mandates and Conditions on Spending
- 22.214.171.124 Amendment IV – No Abuse of the Treaty Power
- 126.96.36.199 Amendment V – Freedom of Political Speech and Press
- 188.8.131.52 Amendment VI – Power of States to Check Federal Power
- 184.108.40.206 Amendment VII – Term Limits for Congress
- 220.127.116.11 Amendment VIII – Balanced Budget Line Item Veto
- 18.104.22.168 Amendment IX – The Rights Retained by the People
- 22.214.171.124 Amendment X – Neither Foreign Law nor American Judges May Alter the Meaning of Constitution
- 3 Contract theory
- 4 Criticism
- 5 Bibliography
- 6 See also
- 7 Footnotes
- 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 Quarterly Journal of Austrian Economics. 49 (1999).
- Richard Epstein, "The Libertarian Quartet", Reason Magazine, Jan. 1999.
- David N. Mayer, Book Review, The Structure of Liberty, 20 Cato Journal. 279 (2000).
- Lawrence B. Solum, Book Review, The Structure of Liberty: Justice and the Rule of Law, 97 Mich. L. Rev. 1780 (1999)
- John K. Palchak & Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order, 38 GONZ. L. REV. 289 (2002)
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 (not popular sovereignty).
Barnett was an influential voice in the constitutional challenge made against the Affordable Care Act. Due to his vast experience with Commerce Clause litigation, Barnett provided invaluable legal guidance, resulting in the challenge that was ultimately brought before the Supreme Court. On June 28, 2012, the Supreme Court handed down its opinion in NFIB v. Sebelius, holding that the Affordable Care Act was unconstitutional as applied under the Commerce Clause but was allowable through Congress' powers under the Taxing and Spending Clause.
Barnett was also a lead lawyer for the plaintiffs in Ashcroft v. Raich/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 also focuses on the history and original meaning of the Second and Ninth Amendments to the United States Constitution. Barnett has advanced the Standard Model interpretation 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.
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 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. Barnett has indicated that the case of Bolling v. Sharpe (dealing with integration of public schools in the District of Columbia) is hard to justify textually from the Constitution, and if it were to be overturned due to this, Congress would create more laws desegregating the district, which would be justified in his view of the Constitution.
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:
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 before the Fourteenth Amendment, then only enumerated rights may have been extended by the Fourteenth Amendment.
Constitutional Conservatism and Judicial Constraint
Barnett has written on the need for judges to practice Constitutional Conservatism over Judicial Conservatism. The trouble with Judicial Conservatism, Barnett argues, is that it "admonishes judges to put their thumbs on the scale to uphold laws" and lends itself to the problems of double deference. Judges give deference to the Legislative Branch because it is presupposed that the Legislative Branch reflects the will of the people. In return, the Legislative Branch believes its actions are constitutional because the Judicial Branch has not ruled otherwise.
To avoid presuming that legislative acts reflect the public majority, Barnett advocates Constitutional Conservatism, an approach to judicial constraint that binds judges to the text of the United States Constitution. Barnett advocates that judges should be engaged in the law, striking down legislation that violates the Constitution and actively upholding legislation that is constitutionally supported, including enforcing the 9th and 14th Amendments.
Barnett has proposed a "Repeal Amendment" to the United States Constitution, which would give two-thirds of the states the power to repeal any federal law or regulation. According to Barnett, the proposed amendment "provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse." He described the intent of the amendment as follows:
The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.
Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.
The Repeal Amendment would help restore the ability of states to protect the powers 'reserved to the states' noted in the 10th Amendment. And it would provide citizens another political avenue to protect the 'rights ... retained by the people' to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.
Barnett's proposal has received interest from many politicians and academics, even those who do not share his libertarian beliefs. "[A] number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor" have endorsed the proposal, as has Attorney General of Virginia Ken Cuccinelli. Republican Congressman Rob Bishop of Utah introduced the amendment in the House of Representatives. University of Texas Law Professor Sanford Levinson has said that the Repeal Amendment "ha[s] the merit of recognizing that structures matter."
Bill of Federalism
|Bill of Federalism|
|Created||May 13, 2009|
|Purpose||"To restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people"|
The Bill of Federalism is a list of ten proposed amendments to the United States Constitution by Randy Barnett. It would enshrine in the Constitution certain ideas based on states' rights and free market libertarianism. Barnett drafted the bill in response to the Tea Party movement's emphasis on limiting federal powers. The present draft of the document was published on May 13, 2009, and incorporated much of the feedback that Barnett received in response to the previous draft. The document is an expansion of an earlier 'Federalist Amendment' that Barnett composed as part of an article he wrote in the Wall Street Journal.
On April 16, 2009, Randy Barnett appeared on the Glenn Beck Show to address the question, "What redress do states have who are tired of getting kicked around by the federal government?" Barnett proposed the idea of passing a constitutional amendment, and further argued that by threatening to hold a constitutional convention, the states could force Congress to propose the amendment to them.
Barnett then wrote an article for the Wall Street Journal entitled "The Case for a Federalism Amendment." It was published in the editorial section on April 24, 2009. In it he expounded on his idea for forcing Congress to propose an amendment to the states, and included a draft for a five-sectioned 'Federalist Amendment', which would strengthen states' rights and restrict federal power.
According to an interview he gave to PJTV, Barnett used the great volume of constructive feedback to further refine his ideas for the amendment. He also decided to disaggregate the amendment into multiple parts, in order that opposition to a few of the ideas would not sink the entire amendment. On May 13, 2009, Barnett released the intended final draft.
The Bill of Federalism Project has been incorporated as a nonprofit agency in the State of Tennessee
The Constitution is the Supreme Law of the United States. Article V of the Constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment was ratified by State Conventions.
Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.
Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.
The John Birch Society has criticized the idea of calling for a constitutional convention, calling it a "dangerous temptation" and a "threat to our Constitution." Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.
Amendments of the Bill of Federalism
Amendment I – Restrictions on Tax Powers of Congress
Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts, or estates, or upon aggregate consumption or expenditures; but Congress shall have power to levy a uniform tax on the sale of goods or services.
Section 2. Any imposition of or increase in a tax, duty, impost or excise shall require the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately be presented to the President of the United States.
Section 3. This article shall be effective five years from the date of its ratification, at which time the sixteenth Article of amendment is repealed.
Section 1 of this amendment would disallow federal income, gift, estate, and consumption taxes. It would explicitly permit a national sales tax, an idea which has been proposed in the United States as the FairTax. Section 2 would require a supermajority of three-fifths of both houses of Congress for any new tax or tax increase. Section 3 repeals the Sixteenth Amendment, and delays the implementation of the whole amendment for five years after it is ratified, to give Congress time to dismantle the IRS.
This amendment is partially a combination of the fifth and sixth amendments of the previous draft.
Amendment II – Limits of Commerce Power
The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.
The Constitution grants Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This is amplified by the additional power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ..." This amendment would overrule the current interpretation of the commerce clause by removing three present applications of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.
- In Wickard v. Filburn, the Supreme Court ruled that Congress could regulate the production of wheat by a farmer named Roscoe Filburn, despite the fact that Filburn did not intend to sell any of this wheat across state lines. The court ruled that since in the aggregate, unregulated wheat could have an effect on interstate commerce, it was thus covered by the commerce clause.
- The Court has held that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." In one instance, the Court upheld federal safety regulations of vehicles used in intrastate commerce on the grounds that they run on highways of interstate commerce.
- In Gonzales v. Raich, the court ruled that the commerce clause extended to non-economic regulatory schemes of Congress.
Amendment III – Unfunded Mandates and Conditions on Spending
Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.
This first clause of this amendment would disallow Unfunded Mandates, meaning that the Congress could not make laws, even those within the scope of their power, that would require the states (or cities etc.) to spend money, unless Congress is willing to reimburse the States fully.
The court has ruled in Printz v. United States that the federal government cannot directly force a state to pass any law or regulation. However, by the precedent set in South Dakota v. Dole, Congress can make routine, unrelated funding conditional upon state compliance with regulation that Congress cannot itself enact. The National Minimum Drinking Age Act was the subject of Dole and presently uses this mechanism, as did the National Maximum Speed Law while it was law. The second clause of this amendment would prevent Congress from using conditional funding to induce the states to enact any law if it would "restrict the liberties of its citizens."
Amendment IV – No Abuse of the Treaty Power
No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.
The Constitution grants to the president the power "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The Constitution also grants to the Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Based on this clause, the Supreme Court held in Missouri v. Holland that Congress can make laws implementing a treaty, even if such laws would otherwise be outside of Congress' power to enact. Many thought this decision unwise, fearing that the Federal Government could essentially bypass any Constitutional limits by simply enacting treaties granting themselves any powers they saw fit. These concerns led to the Bricker Amendment of the 1950s, designed to restrict the treaty power. The Bricker Amendment came up a single vote short of the two-thirds majority it needed.
This amendment would similarly overturn Missouri, preventing any treaty from enlarging Congress' power. Note, however, that the Supreme Court's 1957 Reid v. Covert decision reversed Missouri, at least in part.
Amendment V – Freedom of Political Speech and Press
The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.
This amendment would expand the scope of the right to free speech to apply to Campaign Contributions, thereby making it illegal for charges or imprisonment in terms of campaign finance laws. This Amendment would make laws such as McCain-Feingold illegal. McCain-Feingold made it illegal for anybody not directly connected with a campaign to voice issues related to that campaign within 30 days of a primary election and 60 days within a general election. This amendment also extends freedom of speech rights to the internet.
Amendment VI – Power of States to Check Federal Power
Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.
Amendment VII – Term Limits for Congress
No person who has served as a Senator for more than nine years, or as a Representative for more than eleven years, shall be eligible for election or appointment to the Senate or the House of Representatives respectively, excluding any time served prior to the enactment of this Article.
This amendment would simply limit the terms of any Congressman or Senator. Under this Amendment, a Congressman's term would be limited to six two year terms, plus one year of a previous Congressman's term. Meanwhile, Senators would be limited to two six year terms, plus three years of a previous Senator's term.
This is based on the 22nd Amendment of the US Constitution which limits the President to two 'four year' terms in office and two years of another person's term for a total of 10 years.
Amendment VIII – Balanced Budget Line Item Veto
Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.
Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.
Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.
Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.
This amendment requires a line-item veto to be established for the President. Section one of this amendment establishes a definition of an unbalanced budget stating that it is when public debt at the end of one fiscal year (September 30 of the calendar year) is greater than the preceding one. Section two allows the President to separately approve or disapprove of any part of any legislation except that which allows for the operation of congress or the judiciary. Section three simply sends the disapproved items to the US House for separate consideration. Section four allows Congress to pass a line-item veto law after the amendment is ratified. This amendment is a direct result of an overturned law that former President Clinton tried using during his second term in office.
Amendment IX – The Rights Retained by the People
Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.
Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.
This amendment is a direct cousin of the Tenth Amendment to the United States Constitution though it applies to the people of the US and not the states.
Section one puts the Declaration of Independence into coded law. This includes the preamble which allows for people to live their lives the way they seem fit. Note that the proposed right of "making binding contracts of their choosing" would appear to resurrect the legal doctrine of "economic due process," which during the Lochner era was used by the Supreme Court to strike down a wide variety of state and federal laws affecting business, including child-labor and minimum-wage laws.
Section two allows any legal person of the United States to rise up and challenge any law that restricts their rights and gives the burden of truth to the United States federal government or any state government. This means that any attempt to establish the constitutionality of any law is rested with the government.
Amendment X – Neither Foreign Law nor American Judges May Alter the Meaning of Constitution
The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.
This amendment establishes a strict interpretation of the Constitution as written, and bans the practice of some judges having a broad interpretation including establishing foreign laws into their decisions, which could change the meaning of a certain article or section of the Constitution.
Barnett also writes about contract theories. In that field he has advanced a theory of contract formation that emphasizes the intention to be bound as the key to contract law. He also has worked 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.
- Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, N.J.: Princeton University Press rev. ed. 2014).
- Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press 2d ed. 2014).
- Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel & Ilya Somin, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Trevor Burrus ed., New York: Palgrave Macmillan 2013).
- Randy E. Barnett & Howard E. Katz, Constitutional Law: Cases in Context (New York: Wolters Kluwer Law & Business 2d ed. 2013).
- Randy E. Barnett & Howard E. Katz, Constitutional Rights: Cases in Context (New York: Wolters Kluwer Law & Business 2013).
- Randy E. Barnett & Howard E. Katz, Constitutional Structure: Cases in Context (New York: Wolters Kluwer Law & Business 2013).
- Randy E. Barnett, Contracts: Cases and Doctrine (New York: Wolters Kluwer Law & Business 5th ed. 2012).
- Randy E. Barnett, Oxford Introductions to U.S. Law: Contracts (New York: Oxford University Press 2010).
- Randy E. Barnett, Perspectives on Contract Law (New York: Aspen Publishers 4th ed. 2009).
- Randy E. Barnett, Nathaniel Stewart & Todd Gaziano, Why the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional (Wash., D.C.: The Heritage Foundation 2009).
- Randy E. Barnett, "The Judicial Duty to Scrutinize Legislation," 48 Val. U. L. Rev. 903-920 (2014).
- Randy E. Barnett, "We the People: Each and Every One," 123 Yale L.J. 2576-2614 (2014).
- Randy E. Barnett, "Afterword: The Libertarian Middle Way," 16 Chapman L. Rev. 349-365 (2013).
- Randy E. Barnett, From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase," 63 Case W. Res. L. Rev. 653-702 (2013).
- Randy E. Barnett, "No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)?," 65 Fla. L. Rev. 1331-1350 (2013).
- Randy E. Barnett, "The Gravitational Force of Originalism," 82 Fordham L. Rev. 411-432 (2013).
- Randy E. Barnett, "The Wages of Crying Judicial Restraint," 36 Harv. J.L. & Pub. Pol'y 925-933 (2013).
- Randy E. Barnett, "Welcome to the New Originalism: A Comment on Jack Balkin's Living Originalism," 7 Jerusalem Rev. Legal Stud. 42-48 (2013).
- Randy E. Barnett, "Contract Is Not Promise; Contract Is Consent," 45 Suffolk U. L. Rev. 647-665 (2012).
- Randy E. Barnett, "Does the Constitution Protect Economic Liberty?," 35 Harv. J.L. & Pub. Pol'y 5-12 (2012).
- Randy E. Barnett, "Jack Balkin's Interaction Theory of 'Commerce,'" 2012 U. Ill. L. Rev. 623-667 (2012).
- Randy E. Barnett, "The Disdain Campaign," 126 Harv. L. Rev. (Forum) 1-12 (2012).
- Randy E. Barnett, "Judicial Engagement Through the Lens of Lee Optical," 19 Geo. Mason L. Rev. 845-860 (2012).
- Randy E. Barnett, "Interpretation and Construction," 34 Harv. J.L. & Pub. Pol'y 65-72 (2011).
- Randy E. Barnett, "So Much For the Commerce Clause Challenge to Individual Mandate Being 'Frivolous,'" 1 J.L. (1 The Post) 373-376 (2011).
- Randy E. Barnett, "The Case for the Repeal Amendment," 78 Tenn. L. Rev. 813-822 (2011).
- Randy E. Barnett, "The Tea Party, the Constitution, and the Repeal Amendment," 105 Nw. U. L. Rev. (Colloquy) 281-287 (2011).
- Randy E. Barnett, "Turning Citizens into Subjects: Why the Health Insurance Mandate Is Unconstitutional," 62 Mercer L. Rev. 608-617 (2011).
- Randy E. Barnett, "Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment," 3 J. Legal Analysis 165-263 (2011).
- Randy E. Barnett, "Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional," 5 N.Y.U. J.L. & Liberty 581-637 (2010).
- Randy E. Barnett, Burt Neuborne & Diarmuid F. O'Scannlain, "Constitutional Interpretation and the Bill of Rights: Minutes from a Convention of The Federalist Society," 5 N.Y.U. J.L. & Liberty 716-744 (2010).
- Randy E. Barnett, "The Harmful Side Effects of Drug Prohibition," 2009 Utah L. Rev. 11-34.
- Randy E. Barnett, "The Misconceived Assumption About Constitutional Assumptions," 103 Nw. U. L. Rev. 615-661 (2009).
- Randy E. Barnett, "The Separation of People and State," 32 Harv. J.L. & Pub. Pol'y 451-454 (2009).
- Randy E. Barnett, Annual B. Kenneth Simon Lecture: Is the Constitution Libertarian?," 2009 Cato Sup. Ct. Rev. 9-33.
- Randy E. Barnett, "Constitutional Clichés," 36 Cap. U. L. Rev. 493-510 (2008).
- Randy E. Barnett, "Kurt Lash's Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment," 60 Stan. L. Rev. 937-968 (2008).
- Randy E. Barnett, "Scrutiny Land," 106 Mich. L. Rev. 1479-1500 (2008).
- Randy E. Barnett, "The Choice Between Madison and FDR," 31 Harv. J.L. & Pub. Pol'y 1005-1015 (2008).
- Randy E. Barnett, "The Golden Mean Between Kurt & Dan: A Moderate Reading of the Ninth Amendment," 56 Drake L. Rev. 897-909 (2008).
- Randy E. Barnett, "Three Federalisms," 39 Loy. U. Chi. L.J. 285-294 (2008).
- Randy E. Barnett, "Constitutional Conventions," Claremont Rev. Books, Summer 2007, at 52-54 (reviewing Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006)).
- Randy E. Barnett, "The People or the State?: Chisholm v. Georgia and Popular Sovereignty," 93 Va. L. Rev. 1729-1758 (2007).
- Randy E. Barnett, "Underlying Principles," 24 Const. Comment. 405-416 (2007).
- Randy E. Barnett, "Caveat Blogger: Blogging and the Flight from Scholarship," 84 Wash. U. L. Rev. 1145-1148 (2006).
- Randy E. Barnett, "Clauses Not Cases," 115 Yale L.J. (The Pocket Part) 65-69 (2006).
- Randy E. Barnett, "Restoring the Lost Constitution, Not the Constitution in Exile," 75 Fordham L. Rev. 669-673 (2006).
- Randy E. Barnett, "Who's Afraid of Unenumerated Rights?," 9 U. Pa. J. Const. L. 1-22 (2006).
- Randy E. Barnett, "It's a Bird, It's a Plane, No, It's Super Precedent: A Response to Faber and Gerhardt," 90 Minn. L. Rev. 1232-1251 (2006).
- Randy E. Barnett, "The Ninth Amendment: It Means What It Says," 85 Tex. L. Rev 1-82 (2006).
- Randy E. Barnett, "The Presumption of Liberty and the Public Interest: Medical Marijuana and Fundamental Rights," 22 Wash. U. J.L. & Pol'y 29-45 (2006).
- Randy E. Barnett, "Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism," 75 U. Cin. L. Rev. 7-24 (2006).
- Randy E. Barnett, Larry Garvin, Peter Linzer, Hila Keren, Joseph Perillo, David Campbell & Wayne Barnes, "Theory and Anti-Theory in the Work of Allan Farnsworth," 13 Tex. Wesleyan L. Rev. 1-30 (2006).
- Randy E. Barnett, "Grading Justice Kennedy: A Reply to Professor Carpenter," 89 Minn. L. Rev. 1582-1590 (2005).
- Randy E. Barnett, "Trumping Precedent With Original Meaning: Not As Radical As It Sounds," 22 Const. Comment. 257-270 (2005).
- Randy E. Barnett, "Why You Should Read My Book Anyhow: A Reply to Trevor Morrison," 90 Cornell L. Rev. 873-891 (2005).
- Randy E. Barnett & Cass R. Sunstein, "Constitutive Commitments and Roosevelt's Second Bill of Rights: A Dialogue," 53 Drake L. Rev. 205-229 (2005).
- Randy E. Barnett, "Foreword: What's So Wicked About Lochner?," 1 N.Y.U. J.L. & Liberty 325-333 (2005).
- Randy E. Barnett, "Limiting Raich," 9 Lewis & Clark L. Rev. 743-750 (2005).
- Randy E. Barnett, "The Original Meaning of the Judicial Power," 12 Sup. Ct. Econ. Rev. 115-138 (2004).
- Randy E. Barnett, "The Proper Scope of the Police Power," 79 Notre Dame L. Rev. 429-495 (2004).
- Randy E. Barnett, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?," 83 Tex. L. Rev. 237-277 (2004) (reviewing H. Richard Uviller & William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (2002)).
- Randy E. Barnett, "New Evidence of the Original Meaning of the Commerce Clause," 55 Ark. L. Rev. 847-899 (2003).
- Randy E. Barnett, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (Social Science Research Network 2003).
- Randy E. Barnett, "Constitutional Legitimacy," 103 Colum. L. Rev. 111-148 (2003).
- Randy E. Barnett, "The Original Meaning of the Necessary and Proper Clause," 6 U. Pa. J. Const. L. 183-221 (2003).
- Randy E. Barnett, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas," 2002-2003 Cato Sup. Ct. Rev. 21-41.
- Randy E. Barnett, "Consenting to Form Contracts," 71 Fordham L. Rev. 627-645 (2002).
- Randy E. Barnett, "Is the Rehnquist Court an "Activist" Court? The Commerce Cause Cases," 72 U. Colo. L. Rev. 1275-1290 (2002).
- Randy E. Barnett, "Foreword: Is Reliance Still Dead?", 38 San Diego L. Rev. 1-12 (2001).
- Randy E. Barnett, "The Original Meaning of the Commerce Clause", 68 U. Chi. L. Rev. 101-147 (2001).
- Randy E. Barnett & Douglas B. Rasmussen, "The Right to Liberty in a Good Society", 69 Fordham L. Rev. 1603-1615 (2001).
- Randy E. Barnett, Symposium: The Second Amendment, 10 Seton Hall Const. L.J. 849-852 (2000).
- Randy E. Barnett, "An Originalism for Nonoriginalists", 45 Loy. L. Rev. (1999).
- Randy E. Barnett, "Reviewing The Richness of Contract Law by Robert Hillman," 97 Mich. L. Rev. 1413 (1999)
- Randy E. Barnett, "Free to Choose", 21 Seattle U. L. Rev. 721 (1998).
- Randy E. Barnett, "The Structure Still Stands: A Reply to Narveson, Winston, & Tushnet," 8 The Good Society 56 (No 2. 1998)
- Randy E. Barnett, "Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner's Theory of Interpretation", 28 Pacific Law Journal 977 (1997)
- Randy E. Barnett, "A Law Professor's Guide to Natural Law and Natural Rights", 20 Harv. J.L. & Pub. Pol'y 655 (1997).
- Randy E. Barnett, "Coping With Partiality: Justice, The Rule of Law, and the Role of Lawyers", 3 Roger Williams U. L. Rev. 1 (1997).
- Randy E. Barnett, "Necessary and Proper", 44 U.C.L.A. Law Review 745.
- Randy E. Barnett, "The Relevance of Framers' Intent", 19 Harv. J.L. & Pub. Pol'y 403 (1996)
- Randy E. Barnett, "Getting Even: Restitution, Preventive Detention, and the Crime-Tort Distinction", 76 B.U. L. Rev. 157 (1996).
- Randy E. Barnett, "The Death of Reliance", 46 J. Legal Educ. 518 (1996).
- Randy E. Barnett (co-author), "Under Fire: The New Consensus on the Second Amendment", 45 Emory L.J. 1139 (1996).
- Randy E. Barnett, "Getting Normative: The Role of Natural Rights in Constitutional Adjudication", 12 Const. Comment. 93 (1995).
- Randy E. Barnett, "Guns, Militias and Oklahoma City", 62 Tenn. L. Rev. 433 (1995).
- Randy E. Barnett, "Bad Trip: Drug Prohibition and The Weakness of Public Policy", 103 Yale L.J. 2593 (1994).
- Randy E. Barnett, "The Power of Presumptions", 17 Harv. J.L. & Pub. Pol'y 613 (1994).
- Randy E. Barnett, "Beyond the Moot Law Review: A Short Story With a Happy Ending", 70 Chi.-Kent. L. Rev. 123 (1994).
- Randy E. Barnett, ". . . and Contractual Consent", 3 S. Cal. Interdisc. L.J. 421 (1994).
- Randy E. Barnett, "Reinventing the First Amendment," Ethics and the University: Community, Diversity and Morality in the American Academy (M.N.S. Sellers, ed.) Berg Publishers 163, 1994.
- Randy E. Barnett, "The Intersection of Natural Rights and Positive Constitutional Law", 25 Conn. L. Rev. 853 (1993).
- Randy E. Barnett, "Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract", 78 Va. L. Rev. 1175 (1992).
- Randy E. Barnett, "The Sound of Silence: Default Rules and Contractual Consent", 78 Virginia Law Review 821 (1992).
- Randy E. Barnett, "Some Problems With Contract as Promise", 77 Cornell L. Rev. 1022 (1992).
- Randy E. Barnett, [www.randybarnett.com/s/rational.pdf "Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud"], 15 Harv. J.L. & Pub. Pol'y 783 (1992)
- Randy E. Barnett, "The Function of Several Property and Freedom of Contract," 9 Social Philosophy and Policy 62 (1992).
- Randy E. Barnett, "A Ninth Amendment for Today’s Constitution", 26 Val. U. L. Rev. 419 (1991).
- Randy E. Barnett, "Unenumerated Constitutional Rights and the Rule of Law", 14 Harv. J.L. & Pub. Pol'y 615 (1991).
- Randy E. Barnett, "Compensation and Rights in the Liberal Conception of Justice," Compensatory Justice: Nomos XXXIII (J. Chapman & J. Coleman, eds.) New York University Press, 1991
- Randy E. Barnett, "The Virtues of Redundancy in Legal Thought," 38 Clev. St. L. Rev. 153 (1990)
- Randy E. Barnett, "The Internal and External Analysis of Concepts", 11 Cardozo L. Rev. 525 (1990).
- Randy E. Barnett, "Two Conceptions of the Ninth Amendment", 12 Harv. J.L. & Pub. Pol'y 29 (1989).
- Randy E. Barnett, "Post-Chicago Law and Economics", 65 Chi.-Kent. L. Rev. 3 (1989).
- Randy E. Barnett, "Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses", 12 Harv. J.L. & Pub. Pol'y 611 (1989).
- Randy E. Barnett, "Reconceiving the Ninth Amendment", 74 Cornell L. Rev. 1 (1988).
- Randy E. Barnett, "The Ninth Amendment and Constitutional Legitimacy", 64 Chi.-Kent. L. Rev. 37 (1988).
- Randy E. Barnett, "Can Justice and the Rule of Law Be Reconciled?", 11 Harv. J.L. & Pub. Pol'y 597 (1988)
- Randy E. Barnett, "Are Enumerated Constitutional Rights The Only Rights We Have? The Case of Associational Freedom", 10 Harv. J.L. & Pub. Pol'y 101 (1987)
- Randy E. Barnett, "Judicial Conservatism v. A Principled Judicial Activism", 10 Harv. J.L. & Pub. Pol'y 273 (1987).
- Randy E. Barnett, "Squaring Undisclosed Agency Law With Contract Theory", 75 California Law Review 1969 (1987)
- Randy E. Barnett & Mary Becker, "Beyond Reliance: Promissory Estoppel, Contract Formalities and Misrepresentation", 15 Hofstra L. Rev. 445 (1987).
- Randy E. Barnett, "Curing the Drug Law Addiction: The Hidden Side-Effects of Legal Prohibition," Dealing With Drugs (R. Hamowy, ed.) Lexington Books, 1987.
- Randy E. Barnett, "A Consent Theory of Contract", 86 Colum. L. Rev. 269 (1986).
- Randy E. Barnett, "Four Senses of the Public Law - Private Law Distinction", 9 Harv. J.L. & Pub. Pol'y 267 (1986)
- Randy E. Barnett, "Why We Need Legal Philosophy", 8 Harv. J.L. & Pub. Pol'y 1 (1985)
- Randy E. Barnett, "Pursuing Justice in a Free Society: Part Two—Crime Prevention and the Legal Order," Criminal Justice Ethics (Winter/Spring 1986), at 30.
- Randy E. Barnett, "Pursuing Justice in a Free Society: Part One—Power vs. Liberty," Criminal Justice Ethics (Summer/Fall 1985), at 50.
- Randy E. Barnett, "Contract Scholarship and The Reemergence of Legal Philosophy", 97 Harv. L. Rev. 1223 (1984).
- Randy E. Barnett, "Public Decisions and Private Rights," Criminal Justice Ethics (Summer/Fall 1984), at 50
- Randy E. Barnett, "Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice", 32 Emory L.J. 937 (1983).
- Randy E. Barnett, "The Justice of Restitution", 25 American Journal of Jurisprudence 117 (1980).
- Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," 87 Ethics 279 (1977).
- "Odd Man Out: Our Own Prof Randy Barnett" http://www.gulawweekly.org/whats-happening/2011/3/29/odd-man-out-our-own-prof-randy-barnett.html
- "Professor Randy Barnett Wins 2014 Bradley Prize". Georgetown University School of Law. May 6, 2014. Retrieved 23 January 2015.
- Randy Barnett, The Ninth Amendment: It Means What It Says, 85 Texas Law Review 1 (2006)
- Legal Affairs Debate Club, Constitution in Exile? Cass Sunstein and Randy Barnett Debate. (May 4, 2005)
- Randy Barnett, Proper Scope of the Police Power, 79 Notre Dame Law Review 429 (2004)
- Barnett, Randy and Howell, William J. (2010-09-16) [The Case for a "Repeal Amendment"], Wall Street Journal
- Kinsella, Stephan (2010-12-03) Randy Barnett's Federalism Amendment, Mises.org
- Letter from Ken Cuccinelli to State Attorneys General, December 1, 2010
- Elliot, Philip (2010-11-30) Conservatives push amendment for repeal, Washington Post
- Levinson, Sanford (2010-12-09) It's the Constitution, stupid, Balkinization
- As stated in the Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism. The resolution can be found here
- "States' Rights - FOXNews.com". Fox news. April 16, 2009. Retrieved 2009-05-10.
- Barnett, Randy (2009-04-24). "The Case for a Federalism Amendment". The Wall Street Journal (Dow Jones & Company). pp. A17. Retrieved 2009-05-05.
- "Pajamas TV – Tea Party Coalition Show – The Bill of Federalism – Prof. Randy Barnett – Video:". Pajamas Media. April 27, 2009. Retrieved 2009-05-13.
- Leahy, Michael Patrick. "The Bill of Federalism – About Us". The Bill of Federalism Project. Retrieved 2009-06-01.[dead link]
- Gerard Magliocca (2009). "State Calls for an Article Five Convention: Mobilization and Interpretation". Cardozo Law Review. Retrieved 2009-05-10.
- Greenly, Larry (2009-05-01). "Constitutional Convention Backers Want to Hijack the Tea Party Movement". The John Birch Society. Retrieved 2009-05-10.
- Greenly, Larry (May 29, 2009). "Constitution Threatened by New Constitutional Convention Initiative". The John Birch Society. Retrieved 2009-06-10.
- "Pajamas TV – American Tea Party – Time for a Bill of Federalism? – Video:". Pajamas Media. May 6, 2009. Retrieved 2009-05-13.
- Wickard v. Filburn, 317 U.S. 111, 125 (1942)
- Perez v. United States, 402 U.S. 146, 150 (1971)
- Southern R. Co. v. United States, 222 U.S. 20 (1911)
- Somin, I. (2006). "Gonzales v. Raich: Federalism as a Casualty of the War on Drugs". Cornell Journal of Law and Public Policy 15 (3): 507–550. PMID 17593582. Retrieved 2009-05-23.
- Printz v. United States, 521 U.S. 898 (1997)
- South Dakota v. Dole, 483 U. S. 203 (1987)
- Rosenkranz, N.Q. (2004). "Executing the Treaty Power". Harvard Law Review 118: 1867. Retrieved 2009-06-04.[dead link]
- Sutherland, A.E. (1951). "Restricting the Treaty Power". Harvard Law Review 65 (8): 1305. doi:10.2307/1336653. JSTOR 1336653.
- "In Tea Party speech, McDonnell backs 'repeal amendment'," http://hamptonroads.com/2010/10/tea-party-speech-mcdonnell-backs-repeal-amendment (October 11, 2010).
- Block, Walter. "A Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon, and Epstein." Journal of Libertarian Studies. Volume 17, no. 2. Spring 2003. 
- The Structure of Liberty
- Co-blogger at volokh.com
- LysanderSpooner.org (page set up by R. Barnett)
- Randy Barnett at the Internet Movie Database