Unpacking Constitutional Law

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00:07 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

00:09 Aaron Ross Powell: And I’m Aaron Powell.

00:10 Trevor Burrus: Joining us today is Randy E. Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, where he teaches Constitutional Law and Contracts, and is Director of the Georgetown Center for the Constitution; and Josh Blackman, Associate Professor of Law at the South Texas College of Law. Their book is “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.” Welcome to the show, gentlemen.

00:33 Randy Barnett: Always good to be here, you guys.

00:35 Josh Blackman: Thanks, Trevor. Thanks, Aaron.

00:37 Trevor Burrus: You have a book that summarizes constitutional law in 100 cases, but were there any main themes that you wanted to pull out in the book as a general…

00:47 Randy Barnett: I think the way to start this is just to discuss how we think it’s best to understand or learn constitutional law. Some people would think that the way you do so is learn a bunch of rules that the Supreme Court has recognized. The way, for example, in contract law, you might learn a bunch of contract law rules. We don’t think that’s the best way to learn constitutional law. We think the best way to understand it is to see how our today’s constitutional law evolved from the founding until today. And unlike other forms of law, which are statutory or a mix of statutory and common law, constitutional law is a product of a single Supreme Court that has been continually sitting since the founding until today, and whose decisions you can use to track how constitutional doctrine has developed from the beginning. And that’s how our casebook is organized. And that is also how this new book, “An Introduction to Constitutional Law,” is also organized. So, we start at the beginning with the foundational cases, and then we move towards today. And if you understand how the rules that we have today came to be the rules they are today, you will better understand what they are today.

02:04 Randy Barnett: And the second thing I would say, in addition to the evolutionary approach we take, we take what’s sometimes called the canonical cases approach, which is not something we invented, it’s something we’ve deployed. And this is the approach that says one of the better ways to understand how constitutional law works is to realize that there are certain foundational or canonical cases that are widely accepted as great cases to be emulated and followed. And then there are the anti-​canonical cases, which are widely perceived to be bad cases that are not to be emulated and are to be avoided. And if you’re in litigation, for example, you wanna bring your case underneath one of the canonical cases, and you wanna paint your opponent’s view as implicating one of the anti-​canonical cases.

02:55 Randy Barnett: So, in the course of telling our story from the beginning to today, we make a special point of emphasizing which are the canonical cases and which are not. Now, this is not to say that we agree necessarily that all the canonical cases should be canonical and all the anti-​canonical cases are bad, or I should say that all the canonical cases are good and all the anti-​canonical cases are bad. We don’t necessarily agree with that, but our mission here, as it is in our casebook, is to teach constitutional law the way it is, not necessarily the way it should be. Our other books, my other books in particular, are really about how the Constitution should be interpreted, but that’s not what this book is about. Here, we’re just discussing what constitutional law is, as it has been given to us primarily by the Supreme Court of the United States.

03:49 Aaron Ross Powell: Does this evolution have a direction? Constitutional interpretation and how we think about the Constitution has changed over time, but on the one hand, you could imagine it having a Whig theory of history view, that it’s been building in a direction with themes that emerge. And on the other, I’m thinking of there’s the great Operation Ivy song with the line, “The course of human history stumbles like a drunk.” Is it more like that, where we can pick out some themes, but it’s kind of wandering all over the place?

04:22 Josh Blackman: Sure. The story of constitutional law is not a straight line. It sort of goes like a sine wave, if you will. It oscillates in accordance with the political discussions at the time. Very often, when you have a president who’s more liberal and he appoints more liberal justices, the court trends in a more liberal direction. And when you have a more conservative president, who appoints more conservative justices, the court still trends in a liberal direction. [laughter] Sorry. Well, the story is that… Maybe libertarians like this part, but the Court tends to skew left no matter what happens, just maybe the leftward slope is greater or lesser.

05:06 Josh Blackman: But the bigger story is that jurisprudence does have a connection to politics, but there is something else that goes on as well. And what we try to do in our book is to take 100 cases, which was not an easy process, 100 cases that tell this story from the 1790s all the way to the present day. And it’s truly a remarkable story, in which you can learn about every facet of American history, the American Revolution, the Civil War, the World War I, World War II, the Korean War, the War on Terror. All of these cases fit within the narrative of American history, and at every juncture, the Supreme Court is like the caboose hanging on, figuring out stuff along the way. It’s truly a remarkable story.

05:48 Randy Barnett: And we pay special attention to the role that slavery plays from the very beginning. There are two principal cases that are used to discuss this, Prigg versus Pennsylvania, which upheld the Fugitive Slave Act… Sorry, yeah, the Fugitive Slave Act, and Dred Scott, which we all know is one of the most infamous anti-​canonical cases of the Supreme Court. But we provide a lot of context for these cases. First of all, we provide the cases, which is something that not every casebook or textbook does. But then, we provide a lot of context to explain how they came to be the way they are, and really how did slavery fit into the founding, the way the Constitution was drafted, the way it got amended, etcetera.

06:29 Randy Barnett: And you need to know that, not just as a matter of interest or intellectual interest, but to understand how the Constitution was changed by the 13th, 14th and 15th Amendments, you actually need to understand the slavery and anti-​slavery background that precedes them, because those amendments were the product of Republican constitutional thought, which was, basically, anti-​slavery constitutional thought that had been developed for decades prior to the Republicans finally taking power. And they put their views in the Constitution in the form of written amendments, and you need to understand that development to understand what the meaning of those amendments are.

07:12 Randy Barnett: Let me just add one thing to your… Response to your earlier question about the arc of history. Constitutional law exists within a broader framework, and the justices themselves live within the broader society, and participate in the broader society. So, I think it’s fair to say, and I’d be interested if Josh would disagree with this, ’cause he’s free to, and that is that we’ve seen a movement through the beginning of this country till now in the direction of statism and centralized power. And that’s a huge movement. It’s an intellectual movement that’s worldwide. It isn’t limited in the United States. It would be surprising if constitutional law resisted that trend, that overarching trend. And so, I wouldn’t call that an evolution to a greater good, but I do think it’s a political trend that constitutional law might resist at times but, by and large, conforms to increasing statism and increasing centralization. That’s the story of our Constitution. That’s the story of our constitutional law.

08:24 Trevor Burrus: You began the book in the first decades, and it struck me… One of the things that is unfortunate, and I think all of us agree on this, is that now most people think of the Bill of Rights first when they think of the Constitution. But in the beginning of the Constitution, there are no real decisions about the Bill of Rights. In those first decades, you pull out the big cases. What are the main questions that the first decades of the Court are dealing with? And then why don’t we see First Amendment cases, for example, at the beginning?

09:00 Randy Barnett: I think it’s important to remember something… Well, to realize something that’s only recently been established by historians. And by recently, I mean, within the last five or 10 years. And that is that the first 10 amendments were not called the Bill of Rights until the 20th century. This is remarkable. This is contrary to everything that I’ve been taught, everything everybody has been taught. But it’s been confirmed by numerous researchers now, and it’s culminated in a book by Gerard Magliocca called “The Heart of the Constitution,” which tells the story. But Gerard got this idea actually from me, when I put him in touch with Pauline Maier, the late Pauline Maier, who was working on this project, and came to me and asked me whether I noticed, when I was doing work on anti-​slavery constitutionalism, anybody had ever referred to the first 10 amendments as the Bill of Rights. And I went back and looked, and no one ever did.

09:55 Randy Barnett: So, the emphasis we currently place on the Bill of Rights is actually, and Gerard makes this point in his book, is actually a product of the New Deal. And it’s interesting why. Because as the New Deal was coming under challenge for being unconstitutional, because it exceeded the powers of Congress to do it, it defended itself by saying, “Oh, look, there’s this Bill of Rights, this enshrined, hallowed Bill of Rights. And nothing we’re doing violates the Bill of Rights. And as long as we’re not violating the Bill of Rights, we’re good to go.” And as a result of that, the Bill of Rights assumed a central importance to modern constitutional law that it never had. It wasn’t even called the Bill of Rights before that. And it wasn’t until the 1950s that the original draft of the Bill of Rights got included at the National Archives on display. Prior to that, it had been in the State Department. And before the 1930s or ’40s, it was actually in the basement in a file cabinet. That’s how unimportant it was thought to be.

11:01 Randy Barnett: So, now, to answer your question. In the earlier days of the Constitution, most Supreme Court cases concerned what we would today consider to be structural issues involving the separation of powers and other matters, and most particularly the scope of Congress’ powers under the Commerce Power, Gibbons versus Ogden, the Necessary and Proper Clause, McCulloch versus Maryland, the role of the judiciary, and interpreting and applying the Constitution, Marbury versus Madison, the role of states within the system, within our system. This is what earlier Supreme Court decisions were mostly about.

11:46 Josh Blackman: I think Randy is exactly right. The modern day obsession with the Bill of Rights was not a known phenomenon at the time of the founding. The term didn’t even exist. Instead, what was most important was constitutional structure. The basic cases we have in the first 20 years all involve structural issues. Could a state be sued by a citizen? Could the State of New York regulate a boat moving from New Jersey to New York? Could the State of Maryland impose a tax on a federal bank? These were all questions that don’t involve speech, or religion, or exercise. They involve separation of powers issues, they involve federalism. And to continue our discussion before, in most all these cases, the centralization, the statism, if you will, prevail, ’cause Chief Justice John Marshall was our first Chief Justice who liked statism, who liked the central government. And in almost every case, whatever interest heightened the power of the central government prevailed, and those decisions really helped to put the growth of Congress’ powers on an upward trajectory from the beginning. It wasn’t seep, but it was a slow, gradual ramp up as we get towards the reconstruction era, and then later to the New Deal.

13:16 Randy Barnett: Let me just qualify something Josh said. The term “Bill of Rights” did exist at the time of the founding, it’s just that it wasn’t used to describe the first 10 amendments. And one question is, well, given that they wanted a Bill of Rights, people wanted a Bill of Rights, what was it about the first 10 amendments that did not look like a Bill of Rights? Why did they not recognize this to be a Bill of Rights? And the answer that the historians have given is that it really appears as though what they meant by a Bill of Rights was a declaration of rights, in particular fundamental natural rights, etcetera, or fundamental principles that usually got appended at the… Put on the beginning of a Constitution.

13:57 Randy Barnett: The epitome of this is George Mason’s Declaration of Rights, that perceives the Virginia Constitutions, Day Constitution. And in fact, Madison, when he proposed the amendments, thought he was going to put the amendments, insert them within the text of the Constitution, and he actually proposed the Preamble to the Constitution be amended to include language that was taken from George Mason’s Declaration of Rights. And then when he explained these proposals, he said, “The first of my amendments, the first of these could be considered a Bill of Rights.” Well, what was the first of these? It was his proposed amendments to the Preamble. But because all the amendments ended up at the end, they didn’t fit people’s understanding or what a Bill of Rights actually looked like. And it’s possible… And they were also somewhat of a mixed bag, they weren’t all about individual rights. The first two amendments that got rejected were about how much representation there would be in Congress, and congressional pay raises, and whether Congress could build themselves… Those weren’t about rights. That’s Amendments 1 and 2, they didn’t get approved, but that was the first of the two amendments sent to the States.

15:04 Randy Barnett: So, for all of these reasons, the Bill of Rights term did exist, but the first 10 amendments weren’t called the Bill of Rights. And as I think it’s useful for people to realize, it wasn’t until 1965, in a case called Lamont versus Postmaster General, that’s the first time that the Supreme Court invalidated a federal law for violating the First Amendment, the freedom of speech. So, it’s pretty late developing.

15:35 Aaron Ross Powell: This pattern that you’ve described of… So, we found a new nation and we set up, we drop a document that lays out the rules that its government must follow, but then we spend a fair amount of the early years figuring out the details of those rules. And then it shifts away from that, makes intuitive sense, you’d think that that’s the way it would play out, because inevitably the actual governing is going to be more complicated than the rules you drew up at the beginning. And so I’m curious, do we see that similar pattern elsewhere? Does that same pattern show up in constitutional interpretation outside of the US? I know that may be way outside your area of expertise, but I’m just… Or does it seem to be there’s something where there was an ideological turn toward…

16:29 Josh Blackman: Pass. I have no idea.

16:31 Randy Barnett: I have no idea.

16:32 Josh Blackman: I barely know our country, I don’t know others.

[laughter]

16:37 Trevor Burrus: I think we can amend it a little bit and say that this question of… I think it’s related to this, that the first courts, were they more originalist, in some sense, because of their proximity to the founding and then… Maybe that’s one thing you could think about international, maybe that would be true. A tendency of other constitutions at the first justices and judges interpreting a Constitution might be more originalist because they’re standing closer to where they could actually confer, maybe actually even ask people who wrote the Constitution what it meant. Do we see that at all in the American Constitution?

17:10 Aaron Ross Powell: And let me just quickly, to kind of clarify and build off of that, I guess the point that I’m getting at is… You said that the broader theme has been a turn to statism over the course, increasing statism and centralization. And I’m wondering if… Instead, there might just be an inevitability that when you set up a new system and you have a set of rules, you have to spend some time figuring out how those rules actually apply during play, and because you couldn’t anticipate everything. But then at some point you’ve played the game long enough, that you now start turning naturally the questions of, “Is this the kind of game we actually wanna be playing? And do we like the game? And do we wanna start interpreting in ways to adjust the outcomes of the game?” Because I could see that being an inevitability in the way you approach governing.

18:06 Randy Barnett: Whether the courts were originalist in the beginning… I think it’s pretty clear that originalism was the default position of all courts everywhere. And just like it is when you’re interpreting contracts, a document means what it meant when it was adapted. There’s a standard, that standard approaches to interpretation of statutes, contracts, everything. When you get a letter, if you open up a letter from the 16th century, you’re not gonna ask what that letter means today. You’re gonna ask… If you wanna understand what the letter means, you’re gonna know what the terminology meant in the 16th century, otherwise you’re not understanding what the letter means. So, this was…

18:47 Trevor Burrus: Or a recipe, I always say recipes are like that, too.

18:51 Randy Barnett: Yeah. So this is so obvious that only an intellectual and a progressive could deny it, which… And for decades they’ve been working on people to get them to concede that this is not the case, and they’ve got everybody buffalo-​ed. Again, this is not in our book either. But here’s something that does differentiate the founding from today, even from modern originalism and textualism, and that is almost all the foundational cases don’t… They don’t start with text. They start with first principles, they start with first political principles, all of them. Chisholm versus Georgia, all about the political theory of sovereignty. Marbury, Gibbons, McCulloch, case after case, all first principles. Then once they’ve done their whole business on first principles, they turn to the text and they say, “You see, the text reflects these first principles.”

19:53 Randy Barnett: Now, they never… I don’t know of a single case where after dealing with first principles, they go to the text, they say, “Oh, well, it’s too bad, the text doesn’t reflect these first principles, we’ll have to go with our principles over the text.” Never is that ever done. But they first start with first principles, and then they use those principles to illuminate the text, which they say is consistent with those first principles, and it is, and then apply the text. So, this is something that my co-​author, Evan Bernick, and I refer to in some sense as the spirit of the Constitution. There’s the letter and there’s the spirit. So, to understand the letter properly, you do need to understand the broader spirit or purpose or function and/​or object in which that letter is supposed to function. And that’s exactly how these early Supreme Court cases are written, and they’re written like that for a very long time. And it’s only in the last 30, 40 years, and oftentimes under the influence of Justice Scalia, that the Court has moved in a much more text first and principles, maybe who knows when, way of just constructing their opinions.

21:07 Trevor Burrus: This is also not in the book, I just want to say, but since we kinda went down this road and it’s a good topic, and then we can get to some of the subset of stories, but on the point of originalism, is the case for it… You made the case about interpreting a contract or something like this, which makes sense, but would the same case apply to the Soviet Constitution? A constitution that doesn’t protect liberty.

21:30 Randy Barnett: Absolutely. The only way you’re gonna know the Soviet Constitution doesn’t protect liberty is to read it and understand what it says. It applies to the Confederate Constitution. The Confederate Constitution explicitly protects slavery. How do you know that it explicitly protects slavery? You read it, and you see that the original meaning of the words of the text provide explicit protections for slavery. Meaning is one thing, whether that meaning should be followed is another thing.

21:58 Trevor Burrus: The normative point, should libertarians be originalists about the Confederate Constitution? Probably not.

22:03 Randy Barnett: Originalism actually has two fundamental precepts. All the different variations of originalism is a family of theories with two central precepts. One is the descriptive principle called the fixation thesis, and that is that the meaning of a text is fixed when it’s enacted. That’s merely descriptive. The second is normative, which is the constraint principle, and that is that constitutional actors ought to be constrained by the meaning that is fixed in the text. So, in order… The descriptive claim is one of just how the world works, it’s an empirical claim about the way language works. And the normative claim is a normative claim, and you’re gonna have… And before constitutional actors are bound by this Constitution or the Confederate Constitution or the Soviet Union Constitution, there’s got to be a normative explanation of why the original meaning of that text binds actors today. And originalists have multiple normative arguments, not just one, but many normative arguments that are not mutually exclusive as to why the original meaning of our Constitution should be followed by constitutional actors. But this is not the program in which to get into all of that, I think.

23:19 Trevor Burrus: Let’s talk about one of the stories you tell, because I think it’s interesting when we’re thinking about this process. So, we have a Commerce Clause of the Constitution, and a necessary and proper clause that says that Congress shall have the power to both regulate commerce and do all things necessary and proper to carry and execution of the regulation of commerce. How does that change over time? I guess the first question is, how does that change? But the next question is, if we get to the point where Congress can simply do anything, how could it have gone differently?

23:54 Josh Blackman: Well, there actually are two clauses of the Constitution that are relevant here. There’s the Commerce Clause, and there’s also the Necessary and Proper Clause. And most people only think of the Commerce Clause, but really the Necessary and Proper Clause is doing the heavy lifting. Remarkably, the meaning of the word “commerce” has remained largely static for over 200 years. The Chief Justice’s opinion in Gibbons v. Ogden defined commerce as intercourse, and the courts deviated a little bit involving insurance and few other things. But for the most part, commerce has not changed what the meaning of commerce is. The meaning that’s changed is actually of the Necessary and Proper Clause, which are Congress’ implied powers, that is Congress has the power to do things that are necessary and proper to regulate commerce.

24:41 Josh Blackman: And that doctrine has expanded significantly over the last 200 years. It expanded during a fugitive slave case you mentioned earlier, Prigg v. Pennsylvania. It expanded after the Civil War in case involving paper money, what you might call legal tender today. It expanded even more significantly during progressive year, and then eventually went even higher during the New Deal, where Congress could do more and more things to regulate commerce, even if it was not commerce among the several states. So, when you think about the powers of Congress, it’s really the implied powers, the necessary and proper powers, which is a debate that’s old as the Constitution. Hamilton and Madison have this debate 200 years ago, but we need to recognize what limits exist, and I think there are some limits on the necessary and proper power. The ObamaCare case recognized some of these limits. How much teeth they have today, I think, is a very much open question.

25:37 Randy Barnett: Now, I have to say that this is in a very, very important theme of our book. We do think that Constitutional Law is mistaught more frequently than it’s correctly taught, because these two concepts are… These two clauses are collapsed together, and courts and law professors both talk as though it’s the commerce power that’s expanded and not the Necessary and Proper Clause that’s expanded. And as a result, there’s been great confusion in the doctrine. And, in fact, some people have missed, for example, the ability to challenge a law, like the Affordable Care Act. Once you understand what’s really going on, there might be a way of challenging an individual insurance mandate that you didn’t see, because you have a misunderstanding of the commerce power.

26:19 Randy Barnett: It is a major theme of our book that, what Josh just said, the way Josh just described the territory here is the best way to understand, not only what the Constitution says, but actually to understand Supreme Court cases and doctrine as it has developed from the founding until today. So, that’s something that you will learn from this book that you might not learn from your Constitutional Law professor when you take Constitutional Law.

26:48 Aaron Ross Powell: I’m curious about that, just quickly picking up on, you said if you understand it in the correct way, it gives you other avenues for challenging certain laws, and how that fits in because we’ve got… So, we’ve got this document and it says certain things, but it’s been interpreted over a lot of years by a lot of people who’ve sat on the court. And those people are products of their time and their circumstances. And so the mechanism by which… I guess going in and saying, like, “Okay, all of you on the court, were taught constitutional law the wrong way. Here is the right way to understand it, and then here’s a challenge to this law that only works under the right way to understand it. Does that have traction? Does that actually work in the court?

27:37 Randy Barnett: This is a really good question, Aaron, I’m glad you asked it because it helps me clarify what I was saying before. Our claim isn’t just that there is a better way to understand it and everybody has it wrong. Truthfully, if that’s really what we were doing, then it would be like saying we should return to the original meaning of the constitution that has long since been abandoned. That doesn’t have traction in the courts. What we’re claiming is that there is a logic to existing Supreme Court doctrine that is unrecognized by many, many law professors and then also judges.

28:14 Randy Barnett: And so, for example, if you take the case United States versus Lopez, a case that we devote a chapter to, it’s about the Gun-​Free School Zones Act, and whether Congress has the power to regulate the possession of guns within 1000 feet of a school. Chief Justice Rehnquist talked about this as though it was a Commerce Clause case. But the logic of his opinion was based on what’s called the substantial effects doctrine, and then he put a limit on that doctrine. And if you go back to where the substantial effects doctrine came from, which is United States versus Darby, which is a new deal court. You will see that the authority for the substantial effects doctrine was McCulloch versus Maryland. If you go back to McCulloch versus Maryland, you see that’s a Necessary and Proper Clause case. So, the actual structure, the actual substance of Chief Justice Rehnquist’s analysis was really about the Necessary and Proper Clause and not about the Commerce Clause.

29:12 Randy Barnett: Now, that might have just been of academic interest until the Raich case, the medical marijuana case, in which I was the lawyer that argued that case in the Supreme Court. We got three votes, we lost six votes. One of the votes we lost Justice Scalia. And in Justice Scalia’s concurring opinion in Raich, he emphasized that Congress may reach inside a state and reach wholly intrastate non-​economic activity when doing so is essential to a broader regulatory scheme. And that, he said, correctly, is based on the Necessary and Proper Clause. So, he identified it as a Necessary and Proper Clause case. And that then allowed us to craft a challenge to the Affordable Care Act that was based on the Necessary and Proper Clause, and in particular the word “proper” in the Necessary and Proper Clause.

30:01 Randy Barnett: Other law professors who collapsed it all into the Commerce Clause thought our argument was gobbledegook. But Justice Scalia didn’t, because he understood the difference between the commerce power and the necessary and proper clause power. And in a way that’s kind of how I got this idea myself, when I was litigating the Raich case. I didn’t understand the difference until I litigated the Raich case. And it was in the course of doing that that I understood… I came to understand this in a way that other law professors don’t, and that allowed me to formulate the argument in the ObamaCare case.

30:33 Josh Blackman: And when we tell this other law professor, they get angry at us and they go into denial. And we tell this to students, like, “Well, that’s not what I was taught.” It’s really a remarkable distinction that we explained that almost everyone thinks we’re nuts on, but we’re right and they’re wrong.

30:51 Randy Barnett: And let me just add one more thing. The book may be intended to be a little seductive on this point, because what we wanna do by walking you through the events chronologically and the cases chronologically, we show you. We don’t just tell you, we show you how these doctrines developed, where they developed, what clauses they were based on. And if you see it developing that way, it just becomes obvious what we’re doing today is X. What we’re doing today is reflective of how we got to where we are. And it just becomes obvious, you don’t have to beat it, you don’t have to make a big point about it, because it just seems quite clear on the basis of the development of constitutional law.

31:38 Randy Barnett: What differentiates what we’re just talking about from, let’s say, claiming that the court should be originalist and follow the original meaning. There’s no real ideological payoff to our understanding of the commerce power versus the Necessary and Proper Clause power. There is no libertarian payoff, there is no conservative payoff. We’re just trying to understand what’s actually going on better than it’s currently understood, what’s really going on. And so the payoff is you just get to understand the doctrine better, that’s all. And then you get to litigate more effectively, because you understand the doctrine better. It’s not because our theory of the Commerce and Necessary and Proper Clause is more libertarian, or even more originalist. This is not a theory of the original meaning of either clause. This is a theory about what the Supreme Court has been up to for the last 50 or 60 years. And about that, I think, there’s no ideological valence one way or the other.

32:34 Trevor Burrus: No, I agree. It’s just correct. Now, we’re going from the right side, the substitutive right side, Josh, I’ll start with you, was there a Lochner era?

32:46 Josh Blackman: Oh, Lochner. I’ll assume your listeners are roughly familiar with the case of Lochner.

32:51 Trevor Burrus: Well, we can give a little overview, maybe a very short little [32:51] ____.

32:53 Josh Blackman: Okay. Well, the 14th Amendment has a provision that says that you cannot be deprived of your life, liberty or property without due process of law. Okay. What does this phrase mean? We think that there was a general understanding that this phrase “liberty” reflected a right of contract, that the state cannot enact arbitrary laws that infringe on your ability to contract with others, including contracts in the workplace. So, in the late 1800s and early 1900s, courts began to declare work regulations, in certain cases, unconstitutional. These were laws that imposed restrictions on hours, that imposed restrictions on wages. These weren’t necessarily laws that affected safety. Actual safety laws were, for the most part, upheld, but laws involving dollar and cent matters were declared unconstitutional.

33:47 Josh Blackman: The most famous case was Lochner v. New York, 1905. New York enacted a lot of rules restricting bakeries. All the health and safety measures were upheld, but a law limiting how many hours was declared unconstitutional. At the time, Lochner wasn’t that big of a deal. It became a much bigger deal in later years. Pushing up to the new deal became this evil case of what you’re not supposed to do. So, this notion of a Lochner year became this time when all these laws were being struck down left and right, and it’s largely of mythical status. There was a liberty of contract, but it wasn’t nearly as bad as people thought.

34:25 Josh Blackman: Now, why is Lochner-​ism important? To this day, to this day, judges on the Supreme Court look at Lochner as what you’re not supposed to do. They say Lochner in the same sentence as Dred Scott, as Korematsu, as Buck v. Bell case involving eugenics. Right? These are some awful cases, and Lochner was… Look, it was about a baker who wanted to work more hours than the state would let him, voluntarily. There was no conscription. So, we think it’s a mistake to lump all these cases together in this anticanon. But that’s how modern constitutional law have used it. And if you look at Chief Justice Roberts, for example, in the gay marriage decision a few years ago, he kept saying, “Gay marriage is like Lochner,” and they’re not even closely related. But it just is a shorthand for saying a decision that you don’t like, a decision that reaches an anti-​democratic result. And Lochner has so much more power than its actual decision carried.

35:23 Randy Barnett: Yeah. David Bernstein’s work on Lochner is very important here. The Lochner era was a term coined by Gerald Gunther for his casebook after Griswold versus Connecticut was decided in 1964. So, it’s a much recent vintage. And one of the things that we talk about in our book, and we have excerpt in our videos, and we need to talk about our video sooner rather than later, is… In the argument over Griswold versus Connecticut, in the oral argument, one of the lawyers mentions the Lochner case. And it’s clear that… I can’t remember which Justice, maybe Josh can remember which Justice.

36:06 Josh Blackman: It’s either Black or Douglas, I can’t remember which one.

36:08 Randy Barnett: Yeah. I think it was Black. That he didn’t remember which the Lochner case was, he just didn’t remember which one it was. And he said, “Isn’t that the case that governed the size of how big bread should be, the size of bread loaves?” Now, there actually was a case governing bread loaves. It wasn’t the Lochner case though. Lochner case was much… The next [36:26] ____ law. It was so obscure that even a Supreme Court Justice didn’t really… Was trying to recall vaguely, “What was that case again?” Well, that’s 1964 through 1965. The Lochner case became a big deal after that, when Gerald Gunther was trying to impugn both Griswold and Roe versus Wade by associating both those cases with this battle Lochner case.

36:55 Randy Barnett: There is one other thing that David Bernstein talks about, which is important, and that is that Lochner was made a political issue in 1912 by Theodore Roosevelt when he was running as a Progressive Party candidate. And he made the bake shop case as something that was to be opposed. That was his brief moment of fame, which took place seven years after it was decided. And then again, it fell into obscurity after that. But we really should talk about our videos.

37:23 Trevor Burrus: Yeah. Well, now I was to get to that near the end, but if you guys… If you wanna weigh in… They are still available. Did you make them available still for free during the quarantine, or did you at one point?

37:33 Josh Blackman: The free period is over. But to watch the video… When you buy the book… The book is now $23 on Amazon. When you buy the book, you gain access to a 12-​hour video library. We created a library of these short videos, five to 15 minutes in length, that discuss the cases in a very easy to understand fashion. We’ve incorporated oral argument audio, we’ve incorporated audio of the justices in their own words, we’ve put video. They’re very high quality. For a brief period during the quarantine, we had free access so students could use it for exams. But now, as good libertarians, there’s a dollar amount on them, but it’s a great value. For 23 bucks, you get the book and its entire video library. Really, you can’t get anything of this quality anywhere else, it’s really a unique product.

38:23 Randy Barnett: I have to give my kudos to Josh for the video series. I asked Josh to join my contract casebook as an editor, and he came up with this idea of creating a video series, which I went along with, not realizing how much work this was going to be. Two years of my life was gonna be devoted to this project. And it was an enormous project. As I said, it did take two years. We spent something like a total of two weeks in the studio, which was the easy part as compared to writing the scripts. This was all supposed to be done to illuminate and sell our casebook. Then what Josh did was, he worked on the storyboards for the videos, which have all kinds of illustrations, which he found, and graphs and charts, which he developed. Really, this is really his baby. And they have the power and impact that they have because of the talent that he brought to this project. They were so good, and they took so much work, and they cost so much money, they cost about $100,000 to produce, that we decided that they… It was a waste just to confine them to students whose professors picked our casebook.

39:33 Randy Barnett: So, we devised the book that we’re talking about today, “An Introduction to Constitution Law: 100 Supreme Court Cases Everyone Should Know,” as a way of making the video as accessible to a wider audience. The book is based on the scripts to the videos, but we, of course, have to elaborate to make them into a book. That took a lot more work than I expected it to. I would say the book is my idea, the videos were Josh’s idea. Trying to create a book so that people can have access to the videos, that was my idea, and that took a lot of work as well. And so that’s how we came to be where we are today. But kudos to Josh for the quality of this. And, in fact, the Georgetown Center for the Constitution is going to be creating a series of videos called “The Anti-​Slavery Constitution,” that’s going to be based on Sean Wilentz’s book, “No Property in Man,” among others. And I’ve asked Josh if he would help us produce these videos because he’s so good at illustrating all of these basic propositions to a general audience.

40:29 Josh Blackman: And we’re excited that professors at all levels, law school, undergraduate, high school teachers, homeschoolers, love this stuff, it’s really, really strong for them. They’re looking at these tools as a way to teach people about constitutional law. Now, Randy and I didn’t write this book as an indoctrination tool, not even close. We tried very hard to keep our own personal views out of it. I’m sure we’ve slipped in a few chapters, guilty as charged. But our hope is that by simply laying this history out as cleanly as possible, people will see what we see, and they’ll recognize how doctrine has shifted from A to B to C, and not just figure out where we are today, how it got there. And by telling them the story in such a clear, cohesive fashion, we’re confident that a generation of lawyers can actually see perhaps where we went awry and maybe right the ship, if that’s even possible at this point.

41:27 Randy Barnett: Right. That’s a very important point. We approach this, as Constitutional Law professors, there to teach a subject matter responsibly, and as litigators who actually litigate constitutional law and need to understand the doctrines we’re asserting in court. And we’re teaching our students how to do the same thing. So, we have to play it really, really straight. We have to give… We developed a pedagogy to teach them that. Now, along the way, this is Josh’s second point, along the way, when you see the contingencies that led us here, when you see all the different places in which a choice was made to go this way rather than go that way, a reader is free to say, “I don’t like that choice. I wish we hadn’t gone in that direction, maybe we should go to this other direction.” Because what we have today was not inevitable, it happened in a series of discreet steps. But we don’t cast aspersions on those steps in this book or in these videos. We simply describe them as straight as we can, and if the takeaway of the viewer is, “Well, I don’t like that,” well, they’re free to reach that conclusion. We couldn’t possibly comment on that conclusion that they might reach.

42:44 Aaron Ross Powell: On this topic though of things going awry, were the anti-​federalists right? Were they right that the Constitution was inevitably going to be a centralizing document? Or do you think that, given the Constitution as it exists, we reasonably could have ended up in a different place?

43:04 Randy Barnett: Well, without question, the Constitution was a centralizing document. Whether it needed to be as centralized as it became, they were right, it clearly was one, because it was perceived at the time that we needed it. So, the real debate is, about that… Not the real debate, the first debate about that is, well, did you need it or did you not need it? Murray Rothbard has a new addition out of… What’s his book called? “Conceived in Liberty,” right. And it’s all about the Articles of Confederation being superior to the Constitution, which is a very prevalent libertarian view. That’s one debate to have, as to whether it needed… That we needed a new form of government to deal with both the internal and external problems that we had. I tend to think on balance that we did, that the Constitution was justified and warranted. I didn’t always feel this way, so I understand the other side, but that’s the view I take today.

44:05 Randy Barnett: Now, the question is, was it inevitable then? And this, I think, is Aaron’s question, was it inevitable that given the degree of centralization that the Constitution established, that we were gonna get ourselves to today? Where it’s just… It overwhelmed the Constitution. It goes way, way beyond what the Constitution did. We don’t have the original Constitution when it comes to that. And I guess my feeling is, if it was inevitable that this was going to happen, it was going to happen regardless of what we did at the founding. In other words, this goes back to what we said at the beginning of this podcast. There are big political forces that are driving towards increased centralization and status, and a parchment barrier, like the Constitution, I think, can inhibit that development, but it can’t stop it if, in fact, that’s where the political power is taking us.

45:07 Randy Barnett: It can give us tools by which to resist, but one by one, systematically, if most people want, or are going along with, or acquiescing to, or are persuaded that we need this huge Leviathan, having an 18th century constitution to invoke is only going to take modern litigators and modern decision makers so far. If it was inevitable, it was only as inevitable as this larger political sphere is. It wasn’t, I think… I guess what I’m saying is, I’m building up to this. It wasn’t made possible, it wasn’t caused by the decision made in 1787 to have a federal system in which there’d be a more centralized power doing certain things at the national level, leaving all other powers to the states. That’s the system that we got. That system is not necessarily what we have today. And by choosing that is not how we got to where we are today.

46:11 Josh Blackman: I think Randy’s probably right. I think I would only add that, historically, in our system, the courts have deferred to the federal governments at the expense of deferring to the state governments, and that invariably leads to one way ratcheting of centralized power. And it’s no surprise that the federal courts are part of the federal government, and they prefer their own institution over the lowly serfs in the states, and I think that’s built up this aggrandisement of power.

46:39 Randy Barnett: I think it’s really important at this point to bring in the Civil War and slavery into this picture. This is something else libertarians talk a lot about. I think they don’t always get this right either. But I just wanna say that, at the founding, the national government was distrusted and state governments were tended to look on more fondly. That tended to flip when the national government was on the side of liberty and the state governments that we were fighting against were on the side of slavery. Now, the national government became the good guy in the story, the state governments became the bad guy. You can’t underestimate the implications of that shift in popular opinion. You had to fight… And as we all know, the Civil War caused a centralization… Led to a centralization of power in order to wage the Civil War. And that centralization never really stopped.

47:32 Randy Barnett: And it did lead to Supreme Court cases, like the legal tender cases, that were actually a broader endorsement of the Necessary and Proper Clause powers than even the new deal, than even what we have today. There has actually never been a broader statement of federal power than the legal tender case that upheld legal tender, making you take paper money instead of gold. If you have gold in your contract, you have to take paper money instead of gold. That’s what that case was about. Well, in order to get that power, the Supreme Court had an extremely capacious view of the Necessary and Proper Clause. So, all of this has to be taken into account as well.

48:17 Trevor Burrus: Do we see a… Kinda moving up to present day, for Josh, and both could weigh in, of course. Where is the court trending today? And what do you see going forward?

48:32 Josh Blackman: Oh, God. Well, this term was a bizarre term. I don’t remember any like it in recent memory. I called it “Blue June” because it was quite blue for many conservatives. The Chief Justice was in the majority in something like 98% of the cases, and I think all but one of the five, four cases, he was in the majority. The Chief directs the court. Now, I think it’s a myth to say Roberts is becoming liberal or becoming a David Souter, I think that’s not accurate. His approach to judging is fixated on walking this middle of the road tightrope, where the court doesn’t look too conservative, it doesn’t look too liberal, but advances conservative doctrine in the background.

49:13 Josh Blackman: I don’t know what it is, and I can never predict how he’s going to vote in any given case. He always finds ways to surprise and disappoint me. It’s almost an annual tradition. Of course, we’re having an election coming up in a few months, perhaps likely buy them a win. And he might replace Ginsburg and Breyer, which would flip the composition of the court, and maybe we’ll get a more conservative court with a Democratic president, who knows. But I don’t know where the court is trending. It’s a very strange spot. Also, I think, Gorsuch and Kavanaugh are feeling the way out. They haven’t quite solidified their jurisprudence. I think they’re still thinking it through. Thomas and Alito are basically dissenting in almost every case now, and they’re on their own.

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50:11 Aaron Ross Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple Podcast or on your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.