Skip to main content


Season 2 - Episode 3
The Constitution and competitive legal services

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He is the author of numerous books, including Restoring the Lost Constitution: The Presumption of Liberty (2013, expanded edition) and The Structure of Liberty: Justice and the Rule of Law (2014, 2nd edition).

* * *

Arguing before the Supreme Court is a tremendous amount of pressure and work, says Randy Barnett in this engaging interview. He himself lost a battle before that Court defending the use of medical marijuana, arguing that the U.S. Government did not have the constitutional authority to prevent such use.

He also worked on the Supreme Court challenge to the Affordable Care Act (Obamacare) on the grounds that the government could not force people to do business with a private insurance company. This challenge succeeded, but the Act was modified to technically respect the ruling. Still, Barnett thinks this deprived Obamacare of legitimacy, and believes it is one of the issues that the 2016 election will turn on.

Known as a libertarian, Barnett believes that services associated with the legal system can be provided competitively. Private arbitration, for instance, is less expensive and more effective than the public court system. As he points out, “We cannot expect the government to provide court services efficiently any more than we can expect them to provide postal services efficiently.”

While Barnett does not think the United States will turn to a fully polycentric legal system anytime soon, illustrating its virtues serves to ease concerns about moving in the general direction of greater freedom. “We are in somewhat of a post-constitutional regime in which the rules of the Constitution are not really followed by the government, [but] there is a political movement to try to restore the Constitution, and I’m hoping that that movement does succeed in my lifetime.”

Links of interest: Randy Barnett | The Structure of Liberty | Restoring the Lost Constitution

Watch these related FMS interviews
- Richard A. Epstein - Liberty and the law
- Richard A. Epstein - Dos and don'ts: Advice for the US President

Listen to the podcast headphones20.png