Lucretia added to her intrepid legend by venturing into the asylum at Berkeley this week to record this episode in person with Georgetown Law Professor Randy Barnett about his new book (co-authored with Evan Bernick), The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit.

To remind listeners, Barnett argued the Gonzalez v. Raich case that challenged the unlimited reach of the Commerce Clause, and was one of the principal architects of NFIB v. Sebelius that challenged Obamacare back in 2012.

Before getting into the main topic of the 14th Amendment, we open with some intellectual history, as Prof. Barnett began his legal career as a prosecutor, and taught contracts in law school before being drawn into constitutional law mid-career. Since then he has published a series of highly regarded books that have helped revitalize constitutional originalism.

From there we venture into some of the history of the 14th Amendment, as well as Prof. Barnett’s thorough tour in the book of contemporary understandings—and misunderstandings—of this crucial amendment. His reconstruction of this Reconstruction Era amendment deserves to take its place as one of the pre-eminent works on this subject. (Bonus: he also supplied the trademark Ricochet sign off at the very end of the recording, so listen through the exit music for a treat.)

Oh, I almost forgot: we recorded in John Yoo’s office at Berkeley Law, and he loitered in the background, mostly heckling and pouring Maker’s Mark in our coffee. The things we put up with.

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There are 11 comments.

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  1. Richard Easton Coolidge
    Richard Easton
    @RichardEaston

    I liked John Yoo’s story of attracting five protestors including  a person with a walker. Only in Bersekley. 

    • #1
  2. Leslie Watkins Member
    Leslie Watkins
    @LeslieWatkins

    Another great episode, even for a layperson such as myself.

    Barnett speaks with such depth, such clarity of thought. I did not know, but it makes a lot of sense to me, that John Yoo’s partner in crime, Richard Epstein, was an early mentor. (I’m guessing that today they agree more on contracts than originalism.)

    I thought Walter Dellinger’s name might come up, given his recent death. Long before I gained any knowledge of legal theory, practice, and procedure, I (a supporter of Roe) was at a reception for Dellinger and mentioned to him that I thought privacy was an odd, and weak, approach to building support for legalization. I was amazed when he said many people agreed with me. Now, in part due to podcasts such as this, I realize I was unintentionally making a pro-life point while trying to boost my pro-legalization argument!

    Regarding the exit music, is it by any chance by Jorma Kaukone? Sounded Jefferson Airplaney to me.

    Finally, Professor Barnett’s Funny sign off reminded me of—and I mean this as a compliment!—the Road Runner!

    Thanks again for a great discussion.

     

    • #2
  3. db25db Lincoln
    db25db
    @db25db

    John Yoo’s love of the McRib is legendary

    • #3
  4. Ernst Rabbit von Hasenpfeffer Member
    Ernst Rabbit von Hasenpfeffer
    @ape2ag

    I am not a legal guy at all, but this discussion was really enlightening.  I enjoyed it.  Also stimulating.  I listened to it at the gym this morning and my incline press was on fire.

    • #4
  5. mildlyo Member
    mildlyo
    @mildlyo

    Very good episode

    • #5
  6. Richard Easton Coolidge
    Richard Easton
    @RichardEaston

    You’re safe because the Russkies don’t make good (any?) whiskey.

    • #6
  7. Steven Hayward Podcaster
    Steven Hayward
    @StevenHayward

    Leslie Watkins (View Comment):

    Another great episode, even for a layperson such as myself.

    Barnett speaks with such depth, such clarity of thought. I did not know, but it makes a lot of sense to me, that John Yoo’s partner in crime, Richard Epstein, was an early mentor. (I’m guessing that today they agree more on contracts than originalism.)

    I thought Walter Dellinger’s name might come up, given his recent death. Long before I gained any knowledge of legal theory, practice, and procedure, I (a supporter of Roe) was at a reception for Dellinger and mentioned to him that I thought privacy was an odd, and weak, approach to building support for legalization. I was amazed when he said many people agreed with me. Now, in part due to podcasts such as this, I realize I was unintentionally making a pro-life point while trying to boost my pro-legalization argument!

    Regarding the exit music, is it by any chance by Jorma Kaukone? Sounded Jefferson Airplaney to me.

    Finally, Professor Barnett’s Funny sign off reminded me of—and I mean this as a compliment!—the Road Runner!

    Thanks again for a great discussion.

     

    Exit music was “Melt” by Dirk Quinn. Perhaps a little obscure.

    • #7
  8. Leslie Watkins Member
    Leslie Watkins
    @LeslieWatkins

    Steven Hayward (View Comment):

    Leslie Watkins (View Comment):

    Another great episode, even for a layperson such as myself.

    Barnett speaks with such depth, such clarity of thought. I did not know, but it makes a lot of sense to me, that John Yoo’s partner in crime, Richard Epstein, was an early mentor. (I’m guessing that today they agree more on contracts than originalism.)

    I thought Walter Dellinger’s name might come up, given his recent death. Long before I gained any knowledge of legal theory, practice, and procedure, I (a supporter of Roe) was at a reception for Dellinger and mentioned to him that I thought privacy was an odd, and weak, approach to building support for legalization. I was amazed when he said many people agreed with me. Now, in part due to podcasts such as this, I realize I was unintentionally making a pro-life point while trying to boost my pro-legalization argument!

    Regarding the exit music, is it by any chance by Jorma Kaukone? Sounded Jefferson Airplaney to me.

    Finally, Professor Barnett’s Funny sign off reminded me of—and I mean this as a compliment!—the Road Runner!

    Thanks again for a great discussion.

     

    Exit music was “Melt” by Dirk Quinn. Perhaps a little obscure.

    Indeed. It’s good, though.

    • #8
  9. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    You really hit it out of the ballpark with this podcast. Thank you for the fascinating discussion, particularly your choice of Randy Barnett who did a remarkable job of separating the wheat from the chaff for the layperson.

    • #9
  10. Randy Hendershot Lincoln
    Randy Hendershot
    @RicosSuitMechanic

    As an attorney, I liked this discussion so much that I ordered Prof. Barnett’s book halfway through.  Wonderful podcast from my favorite ‘casters!  Please bring Barnett and Yoo (always a pleasure)  back as soon as possible. 

    • #10
  11. LibertyDefender Member
    LibertyDefender
    @LibertyDefender

    Randy Hendershot (View Comment):

    As an attorney, I liked this discussion so much . . . Please bring Barnett and Yoo (always a pleasure) back as soon as possible.

    I’ve been stewing over this episode for a week.  As an attorney and a staunch originalist (which logic demands), I still fret that Randy Barnett’s definition of originalism is insufficient.  The interstate commerce clause

    “Congress shall have the power . . . to regulate commerce among the several states . . . “

    was in Wickard v. Filburn interpreted to grant Congress the power to regulate the growing and consuming of wheat entirely within the bounds of one’s private property.

    No commerce was conducted at all.  Not a single commercial transaction, let alone there being no interstate activity or involvement of any kind.

    I don’t see how any requirement to adhere to original meaning can overcome such a willingness by the Supreme Court to ignore the meaning of words entirely.

    Eighty (80!) years later, we’re still living under the tyranny of Wickard v. Filburn. In 1995, US v. Lopez put a tiny chink in Wickard‘s armor, but even the redoubtable Randy Barnett couldn’t keep the Supreme Court from using Gonzales v. Raich to polish it back to where it remains: Congress can regulate anything it damned well pleases, because the Constitution means whatever the Supreme Court wants it to mean.

    Perhaps Hendershot would join me in listening to an encore 3WHH podcast where Randy Barnett might discuss the subtle but important distinctions between the originalist camp and the anti-judicial activism camp.

    • #11
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