Randy Barnett on Originalism, the Supreme Court, and Constitutional Law

[@DadSavesAmerica]

If you like what you see and want to stay up to date with Dad Saves America, please subscribe here on KZbin or over on Substack, where you can find weekly articles and the audio version of the podcast, with more to come in the near future! www.dadsavesamerica.com

[@RobertTanguay]

I reached out to you recently but you may not have gotten it. I need help and attention to bring light to the family court corruption and slimy lawyers. Thanks Dad!

[@DadSavesAmerica]

We definitely have talked about this issue internally and would love to find some great guests to focus on it.

[@joshua3911]

I would format family law, with both the plaintiff and defense lawyers in a conversation. One part each lays a basic of their philosophy and then basic legal theory beliefs. Then bring them together in a couple of basic scenarios to form an argument. Then explain the laws they leaned into and why. So I say this, because family law goes emotionally bad/south very quickly. Cutting out plaintiff and defense from cross talking and undermining the other will be hard. But it will be the most beneficial way to engage. Ask a lawyer why they don’t do family law? It’s life sucking, and destructive

[@benjohnson6911]

I’m

[@truecatholic1]

​@@DadSavesAmerica2+2=4 regardless of political party. In the same way, abortion is murder regardless of the party of the person who stayed the truth..

[@marymitchell4617]

I'm just a regular gal, but I've been on fire about Original Constitutional Law since our cities were being burned to the ground in 2020, & the pouty pyros not only got away with it; they were treated like heros. REAL American heroes are people like these two guys; who have the courage to speak out in these censorious times, reminding US of our obligation to persevere, & never take for granted, the gift of paticipating in this noble, divinely inspired experiment.

[@Lightning613]

The radicals who burned our cities “got away with it,” because they (anti-Faux, BLM, ACORN) are the DEMs’ modern day versions of Benito Mussolini’s 1920’s ‘Black Shirts’ and 1930’s Germany’s ‘Brown Shirts.’

[@DadSavesAmerica]

I really appreciate that, Mary. Thank you!

[@marymitchell4617]

@DadSavesAmerica heck.. I appreciate your reply!!!! I don't do hollywood, star-struck, fan stuff, but you're an exception; here's why; I believe the Almighty is lining up REAL stars

[@2Truth4Liberty]

There are different types of "Original Constitutional Law". 1) Strict meaning of the Original text. 2) Original Intent of the those who wrote the text. 3) Original Public Meaning - i.e. what those who agreed to the writing believed it to mean. The last one is the proper version of Originalism for the federal constitution, that is, what the States believed the constitution meant at the time it was ratified (same for amendments). This is more simply CONTRACT law - meeting of the minds (agreement) of the parties to the writing.

[@marymitchell4617]

@@2Truth4Liberty Thank you!! I've heard people say the Constitution is a contract they never signed, with terms they never agreed to. Seems kinda high & mighty, to me. I always thought it was an acknowledgement; a recognition of our natural born human rights, not "granted" to us by a government, but inherent.

[@ArleneBrown-m4f]

It’s conversations like this that makes Dad Saves America my favorite podcast. Truly overwhelmingly informative stuff here. Sure wish every confused, troubled teenager could hear this.

[@DadSavesAmerica]

I really appreciate that!

[@truecatholic1]

​@@DadSavesAmericaApparently, the word "progressive" became code for communist in the 1930s.

[@candidlens]

Everyone should read Prof. Barnett's books. Another person to have on this show is Prof. Phillip Hamburger of Columbia Law School. He is doing great work in this area as well.

[@rochellecaffee1417]

I haven’t read your book yet, Professor Barnett, but I WILL MAKE TIME TO READ IT!! I loved your response to the current COS grassroots Project podcast. It was an excellent presentation by you…honest and real, and i, personally, NEEDED TO HEAR YOU!! Thank you for continuing “to HOPE for the BEST”!!! God bless you, sir…it has been said that, “GOOD THINGS COME TO THOSE WHO WAIT”….and i am so glad you “waited” SO THAT I, AND SO MANY OTHERS, COULD HEAR AND CONSIDER ALL YOUR EXPERIENCE AND WISDOM!! How we NEED YOU NOW!! 🙏❤️✝️🇺🇸(🇮🇱)⚔️🧐….💯

[@boveandbeyond]

32:01 He didn’t think that remark about “lawyers running the government” was funny, but I did. 😊

[@seanlee7276]

The gatekeepers do not like being exposed.

[@pappaflammyboi5799]

I saw that too, and came here to comment, but you beat me to it.😅 The steely cold look tho, that was classic! 👌

[@droverwatch7407]

Read the original 13th Amendment, no one with title or nobility shall hold office. Lawyers are esquires, knights of the queen of England

[@RedFeather36]

Great conversation! This guy authored both my Con law casebook and my K law casebook that was used when I was in law school.

[@joshua3911]

I’m so glad Randy is helping people learn these issues around law, kurt at Uncivil law was the one, who I learned from. The conversations around chevron and “the contract” of “The constitution” is exactly as I was taught. Fantastic. I’m a little over half way. I’m waiting for the complication of commerce law to blow everything up. 👏

[@Easyservice-x8q]

It was a wonderful discussion. I enjoy this kind of discussion

[@Swede2of3]

Thank you for the much needed info laid out for all to consume then act upon. Always enjoy your content. Thank you, sir.

[@MichaelDillon-w7d]

Professor Barnett is my preferred constitutional scholar. He is on the same level as Dershowitz and Turley.

[@BajatheChickenMan]

Waking up to a new Dad Saves America video is a good day. Still don't know why it wont notify me at the time of release of the videos but thanks John!

[@DadSavesAmerica]

That's why you should sign up for our Substack emails via dadsavesamerica.com! It's free, though paid tiers are much appreciated.

[@CliffCliffsEdgeEdge]

Great interview! “We don’t learn this stuff as kids.” and “civic ignorance” are two monumental statements that identify major defects in our current public education system.

[@learningone7786]

This is why every law should be precise, and if it isn't it needs to be rewritten. Wish you had discussed: 1. Is it time for a constitutional convention, and make it so it doesn't take 100 lawyers to tell me what the constitution, or a law, means. 2. Since SCOTUS has no way to force compliance of their rulings what good are they. 3. How do people get restitution for being jailed for an administration "ruling? 4. How about getting rid of civil asset forfeiture, qualified immunity, and spying on Americans without a warrant.

[@2Truth4Liberty]

"SCOTUS has no way to force compliance of their rulings" Can you identify any ruling that was not complied with for more than a very short time? If so, please identify the ruling and who did not comply.

[@anitaholst7671]

No wonder Dad cant keep up! Randy brings up a new concept every other sentence and rapidly moves on. He wants us to buy his book!

[@mattwa33186]

His ideas for how libertarianism needs to be updated hit every single issue I have with libertarianism.

[@truecatholic1]

Some libertarians think that it is okay to let a baby starve to death. Murray Rothbard. On the other hand, the interviewer does believe that abortion is murder.

[@stephencooper5040]

The notion that i get of the common law is that it is the law that is discovered through jury deliberation. The idea being that a group of reasonable and right minded humans can find a solution through discussion.

[@velocirapture89]

And it goes way way back, so it incorporates the wisdom of ages. It's a very good system.

[@NorCalNeel]

​@@velocirapture89HOOah !

[@deansthedevil1]

I like the idea of a living speed limit.

[@2Truth4Liberty]

The basic of libertarian is: #1 Freedom is Scary. #2 Loss of Freedom is Terrifying. Settle for #1 before you settle for #2

[@merlingrim2843]

The purpose of the government is stated in the declaration of independents. Essentially secure the inalienable rights of sovereign individuals. The constitution defines the government for that purpose. The legitimate power of government is limited to that which one sovereign individual can possess over another. Which is minimal. If I don’t have an inalienable right to do something to my neighbor then the power does not exist for delegations to government. As such individuals in government have no more legitimate authority to do something to my neighbor than I do. Originalists, true originalists, interpret the constitution according to first principles of intent. If one interprets the constitution in a way which violates the inalienable rights of even a single sovereign individual then they are contradicting the intent.

[@jonholstein2002]

Not just but in America WE the people ARE the government. Our elected officials have come to consider themselves the government with some sort of elevated status and authority to dictate their own agendas to citizens "below" them. When really the average citizens are the government and elected officials are just the ones we choose to send to DC to cast the votes we tell them to cast on our behalf. They simply represent our positions to the national assembly in Washington. They are not our ruling class, we are theirs and decide for ourselves how our communities will operate and what behaviors or conduct is acceptable and what we are not willing to tolerate within our community and the laws we all agree to abide by as well as what standards we would have our representative propose be adopted by the entire federation. It was never intended that an all powerful federal bureaucracy would dictate their will down to the people and that we would be subject to their whims regarding the things we choose to believe, express, promote, or post publicly or practices and procedures that we must carry out and fund even when they violate the cultural agreements we have adopted within our local communities.

[@War4theWest]

There is a not so subtle subtext to many of Randy's comments to 'Dad'. I wonder how many see it? The state of our civic and public intellectual discourse, even by 'voices' with big audiences, isn't impressive. Many people have silly ideas about how the law and our govt actually work, and what we are actually 'entitled' to under it. Randy's very gentle chiding should be taken to heart by many listening.

[@kathyhagan8444]

I just want a constitutional court- not a loosey-goosey interpretative court

[@lauriaktahi]

actually, the constitution was incorporated more than 160 years ago. What we are watching is the restoration of it and the Republic. And Common Law.

[@Kimani_White]

I've been working on updating Natural Law Theory in a way that allows for ethical understanding to have the same _(or greater)_ level of epistemic rigor as the other natural sciences. I can't lay it all out in detail here, but here's a gist of the basics: 1.) The fundamental basis for ethics is the *Principle of Reciprocity,* which is basically just the logical *Law of Identity* applied to normative conditions _(i.e. motive states and the choices generated from them)._ 2.) The valence of a motive state is identical to its existential value and, likewise, the net valence of an individual's overall motive character is their intrinsic value. Simply put, how one is generally inclined to value others is literally a psychological projection of their own moral worth. 3.) With the above in mind... The fundamental essence of moral good is _agape_ -- non-egocentric care. It is the core virtue from which all other character virtues are ultimately derived, and what imbues a being with positive intrinsic value. 4.) One necessarily has natural rights insofar as they're willing to respect the lives and liberties of others, and cedes them to the extent that they don't -- as per the PoR. This is what makes rights _(which are negative by default)_ 'inalienable', in that they cannot be externally granted or revoked, only honored or infringed upon. Ergo, inhering the positive intrinsic value of having a benign character entails possessing natural rights. 5.) Positive rights are only derivable from negative rights by obliging one's self through acts of volition: Either by voluntary commitment to provision specified goods/services to specified parties, or in the form of liabilities incurred by imposing on the negative rights of another.

[@helixxharpell]

I too fought T mobile AND WON!! 😂😂😂😂😂 That was my favorite part! first time in a long time I was ever happy with a lawyer dating all the way back to my divorce! 😅

[@2Truth4Liberty]

Chevron falls back to Skidmore. Not a whole lot different but not an outright abbrogation of the court's duty.

[@brianstover4626]

The constitution is also a living document. That is the founding fathers were well aware of the need to change it. James Madison, for example, did not like it as it was originally written, but knew it could be amended going forward. The original constitution was the Articles of Confederation which requires unanimous consent to alter. The constitution as we now have gave the government more power..

[@2Truth4Liberty]

Yes, it is living in that it can be amended. But the origianl public meaning applies not only to the original constitution but to later amendments as well.

[@2Truth4Liberty]

There are different types of Originalism. 1) Strict meaning of the Original text. 2) Original Intent of the those who wrote the text. 3) Original Public Meaning - i.e. what those who agreed to the writing believed it to mean. The last one is the proper version of Originalism for the federal constitution, that is, what the States believed the constitution meant at the time it was ratified (same for amendments). This is more simply CONTRACT law - meeting of the minds (agreement) of the parties to the writing.

[@droverwatch7407]

I’m really tired of hearing this democratic republic!!!! America is a Constitutional Republic period, the United States is a federal corporation it a country, America is a country!

[@2Truth4Liberty]

Don't get bent over semantics. The constitution embodies democratic processes for the republic form of government described by it. In that sense, We The People enacted a democratic republic.

[@brianstover4626]

Your guest nailed it around time marker 1:02, however he failed to point out the need for the federal government to have more power over the states. For instance, state would impose their own tariffs which caused major economic issue and the federal government needed to have the power to stop it. When individual state make laws that affect the whole of the country then the federal government should be able to constrain them. Like climate change…

[@jonholstein2002]

The federal government should only be able to pass laws that settle disputes and establish a standard for how the state governments themselves operate and do business with one another. All cultural and civil subjects that effect the lives, behavior, rules, and regulations that apply to the citizens themselves should be handled at the state and local level.

[@NorCalNeel]

6:46 maybe, but you have to leave room for God in your equation

[@jonathanasbell]

How many cases have been settled using the Chevron statute? How many laws have been put in place using that?

[@2Truth4Liberty]

Good questions. I don't have exact numbers, but during those 40 years especially the first 20, the agency interpretation were likely very near to what the court would have determined. PS Skidmore deference is the fallback position now that Chevron deference was overruled.

[@DJJonPattrsn22]

The REAL problem I have with ALL of these Constitutional "scholars" (whether their politics lean left or right) is that sooner or later (usually sooner than later) their interpretations on a particular matter (that has some important political consequences) becomes incoherent and contradictory to whatever they had been claiming to be the technique/method that they were using to interpret law! I really have to seriously question efforts to be impartial when they so quickly twist themselves into pretzels whenever the stakes have political consequences.

[@justinsordahl813]

Chevron was lazy by the courts.

[@Challeen]

The Epstien Tapes been out since Nov 2 at the Daily Beast. Sounds as though he was inside Trumps Whitehouse.

[@2Truth4Liberty]

28:30 Yes, even RBG thought Roe was not well reasoned.

[@ClearGlassStudios281]

32:06 akward. 😂

[@htchd1htchd149]

Wished he would of asked about the sovereign citizen movement ,do they have anything right ?

[@2Truth4Liberty]

The thing about a "movement" is that there is no singular meaning (platform) - some in the movement believe some things others not.

[@hllndsn1]

How can you be a "comstitutional law guy" but not an "administrive law guy"? The two are insepeeable- there is no "administrative law" in the Constitution. And its not a big deal anyway. Intellectually Sickening.

[@2Truth4Liberty]

Administrative law means law that does not implicate questions about enumerated constitutional rights and/or powers. It is a euphemism, not a strict segment of law.

[@dasfahrer8187]

Seems that the ability to do something and the freedom to do it are two separate issues. Curious why you're conflating them in your definition of freedom?

[@DAWN001]

39:30

[@scottohara9001]

I think Republicans should pack the court with four more seats and end the filibuster…just kidding

[@meiko_kaji]

Randy Barnett is so far beyond the interviewer it's embarrassing. Randy should have fed him questions in advance. What a wasted opportunity

[@joshua3911]

It’s best that the basics and foundation are agreed upon, before the complex can be understood. Most people don’t have a legal theory let alone a basic understanding of what’s being argued. Read a newspaper after a Supreme Court case is decided. Clueless journalists or malicious?

[@2Truth4Liberty]

For many things, that disparity is what allows a greater number of people to learn.

[@jacksonklark6119]

The US is a Democracy and a Republic these systems are not mutual exclusive.

[@Individual_Lives_Matter]

Mehhh. A little bit. I guess it depends on your definition of democracy.

[@Dan-fj4qm]

The US is not a Democracy and was never intended to be. Read the founding documents and the personal writings of the founders. They abhorred Democracy as chaos, mob rule, and a “tyranny of the majority” doomed to inevitable implosion. You mistake Democracy with democratic process. The US is a Republic, which has democratic processes baked into its functional mechanisms, but with significant, and intentional limits with the purposed intent of preventing the majority from tyrannizing the minority. In the American Republic the citizen will always have fundamental human rights the majority can never vote away from them as opposed to a Democracy. Do not get Democracy and democratic process mixed up. They share overlapping similarities, of course, but are vastly different in the case of the USA.

[@BajatheChickenMan]

Its a Corporatocracy let's not kid ourselves.

[@Sarcasmarkus]

You forgot the "federal constitutional" part.

[@NorCalNeel]

We the People, got fat and lazy and created a " Stephenwolf ,monster"​@@BajatheChickenMan

[@MidNightRider2001]

What Constitution? It doesn't exist IRL.

[@Sarcasmarkus]

I'm pretty sure there's a treasure map on the back.

[@2Truth4Liberty]

@@Sarcasmarkus Lots of dotted lines and a big "X" :-0)

[@DAWN001]

10:16 exactly

[@Thor-o1v]

Good man to have on