Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law atGeorgetown University, where he teaches constitutional law and contracts, and is the director of the Georgetown Center for the Constitution.

Randy Barnett
Barnett in 2022
Born	Randy Evan Barnett (1952-02-05)February 5, 1952 (age 73) Chicago,Illinois, U.S.
Education	Northwestern University (BA) Harvard University (JD)
Title	Patrick Hotung Professor of Constitutional Law
Awards	Guggenheim Fellowship (2008) Bradley Prize (2014)
Academic work
Discipline	Constitutional law Contract law
Institutions	Chicago-Kent College of Law Boston University Georgetown University Cato Institute
Website	www.randybarnett.com

After graduating fromNorthwestern University andHarvard Law School, Barnett tried felony cases as a prosecutor in theCook County State's Attorney's Office in Chicago. A recipient of aGuggenheim Fellowship in Constitutional Studies and theBradley Prize, Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.

In 2004, Barnett argued the medical marijuana case ofGonzalez v. Raich before the U.S. Supreme Court. In 2012, he was one of the lawyers representing theNational Federation of Independent Business in its constitutional challenge to theAffordable Care Act inNFIB v. Sebelius. He blogs on theVolokh Conspiracy.

Barnett was born on February 5, 1952, inChicago, Illinois, to aJewish family. He was raised inCalumet City, Illinois, while attendingsynagogue inHammond, Indiana, where he was president of the localAleph Zadik Aleph (AZA) chapter and received hisbar-mitzvah. After high school, Barnett was educated atNorthwestern University, graduating in 1974 with aB.A. in philosophy. As an undergraduate, he was mentored by professorHenry Veatch in addition to being influenced byMurray Rothbard and the works ofAyn Rand.^[1]

After graduation, Barnett enrolled inHarvard Law School, receiving aJ.D. in 1977. Barnett then returned to Chicago and worked as an Illinois state prosecutor forCook County, Illinois.^[1]

Barnett spent the 1981–82 academic year as a research fellow at theUniversity of Chicago Law School, then, in the fall of 1982, began his academic career as an assistant professor of law at theChicago-Kent College of Law. In 1993, Barnett was hired as a professor of law at theBoston University School of Law. In 2006, Barnett left Boston and began teaching at theGeorgetown University Law Center, where he currently remains.

InThe Structure of Liberty, Barnett offers alibertarian theory of law and politics. Barnett calls his theory "the liberal conception of justice" and emphasizes the relationship between legal libertarianism andclassical liberalism. He argues private adjudication and enforcement of law, withmarket forces eliminating inefficiencies and inequities, to be the only legal system that can provide adequate solutions to the problems of interest, power, and knowledge.

He discusses theories of constitutional legitimacy and methods of constitutional interpretation inRestoring the Lost Constitution.

There have been several criticisms and reviews of his theory, includingStephan Kinsella,^[2]Richard Epstein,^[3]David N. Mayer,^[4]Lawrence B. Solum,^[5] and John K. Palchak and Stanley T. Leung.^[6]

Barnett was also lead lawyer for the plaintiffs inAshcroft v. Raich (laterGonzales v. Raich), which he won before theNinth Circuit, which ruled that federal action against legalmarijuana patients violated the Commerce Clause. Barnett's side, however, lost on appeal at theSupreme Court, which ruled that Congress had the power to enforce federalmarijuana prohibition in states that had legalizedmedical marijuana.He was also involved in the famous Affordable Care Act caseNational Federation of Independent Business v. Sebelius.^[7][8]

Barnett has also done work on the theory of the United States Constitution, culminating in his booksRestoring the Lost Constitution andOur Republican Constitution. He argues for anoriginalist theory ofconstitutional interpretation and for constitutional construction based on apresumption of liberty, notpopular sovereignty.

Barnett also focuses on the history and original meaning of theSecond andNinth Amendments to the United States Constitution. He has advanced the Standard Model interpretation that the Second Amendment protects an individual's right to bear arms, subject to federal regulation under Congress's power to organize the militia inArticle I, Section 8 of the Constitution.

Barnett is a proponent of the view that theNinth Amendment's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote:^[9]

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 had such authority and that enumerated rights "had the same stature and force" in the district even before they were enumerated. He has indicated that the case ofBolling v. Sharpe (dealing with integration of public schools in theDistrict of Columbia) is hard to justify textually from the Constitution, and if it were to be overturned, Congress would create more laws desegregating the district, which would be justified in his view of the Constitution.^[10]

The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of thePrivileges or Immunities Clause of the Fourteenth Amendment. In 2003, Barnett wrote:^[11]

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 prior to the Fourteenth Amendment, only enumerated rights may have been extended by it.

With Evan Bernick, Barnett reviews the history and sources of theFourteenth Amendment as well as its misunderstanding and legal misuse in the Belknap Press titleThe Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. Barnett's reading ofLysander Spooner was instrumental in changing his constitutional theory.^[12][13]

In February 2025, Barnett co-authored an op-ed in theNew York Times with Ilan Wurman where they argue that there is no right tobirthright citizenship for the children ofundocumented immigrants under the Fourteenth Amendment. They wrote the op-ed in defense of an executive order by PresidentDonald Trump. Other legal scholars challenged the op-ed.^[14] Jed Shugerman wrote that Barnett and Wurman offered very thin evidence for their interpretation of the Fourteenth Amendment; no evidence from the period of ratification was cited.^[15] The only two pieces of evidence that they could point to actually contradicted their argument.^[15]Ilya Somin also criticized the lack of evidence, while adding that if Barnett and Wurman's interpretation was correct, it would undermine the central purpose of the Citizenship Clause.^[16]

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.^[17] 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."^[17] 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."^[17]

Barnett's proposal has received interest from many politicians and academics, even those who do not share hislibertarian beliefs. "[A] number of congressional Republicans, including soon-to-be House Majority LeaderEric Cantor" have endorsed the proposal,^[18] as hasAttorney General of VirginiaKen Cuccinelli.^[19] Republican CongressmanRob Bishop ofUtah introduced the amendment in theHouse of Representatives.^[20]University of Texas Law ProfessorSanford Levinson has said that the Repeal Amendment "ha[s] the merit of recognizing that structures matter.".^[21]

The Bill of Federalism is a list of ten proposedamendments to theUnited States Constitution by Barnett. It would enshrine in the Constitution certain ideas based onstates' rights andfree marketlibertarianism. Barnett drafted the bill in response to theTea 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 had 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 theWall Street Journal.^[23]

Barnett advocates for the states to call for aConstitutional Convention in which they would propose the amendments comprising the bill. Alternatively, the United States Congress could propose the amendments to the states, as they have done every time a Convention to propose amendments has been called for.

The amendments, summarized by number below, would:

1. Disallow federalincome taxes (repealSixteenth Amendment), as well asgift,estate, andconsumption taxes; allowFairTax; require a three-fifthssupermajority to raise or set new taxes
2. Set limits on theInterstate Commerce Clause
3. Disallowunfunded mandates and conditions on funding.
4. Close a constitutionalloophole that allows treaties to override established limits on power
5. Extendfree speech consideration tocampaign contributions and to cover anymedium of communication (including theInternet)
6. Allow a resolution of three fourths of the states torescind any federal law or regulation.
7. Establishterm limits for Senators and Representatives.
8. Provide the President with aline-item veto tobalance the budget on any year in which it is unbalanced.
9. Reinforce theNinth Amendment by specifying additional rights and by providing a process for any person to prove the existence of anunenumerated right.
10. Restrictjudicial activism by mandating anoriginalist method of interpretation.

The Bill of Federalism Project has been incorporated as a nonprofit agency in the State of Tennessee.^[24]

Barnett is married to Beth Barnett. Their son, Gary Barnett, attended theGeorgetown University Law Center and now works as a prosecuting attorney inBrooklyn,New York. Their daughter, Laura Barnett, lives inWashington, D.C., and works for theInstitute for Humane Studies.

• Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016)
• Restoring the Lost Constitution: The Presumption of Liberty (2003)
• The Structure of Liberty: Justice and the Rule of Law (1998)
• Contract Cases and Doctrine (1995, 2d ed 1999, 3d ed 2003, 4th ed 2008)
• Perspectives on Contract Law (1995, 2d ed 2001, 3d ed 2005)

• "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (Social Science Research Network 2003).
• Barnett, "Restitution: A New Paradigm of Criminal Justice" (Ethics 87, no. 4, July 1977).
• Barnett (2008)."Spooner, Lysander (1808–1887)". InHamowy, Ronald (ed.).The Encyclopedia of Libertarianism. Thousand Oaks, CA:Sage;Cato Institute. pp. 488–490.doi:10.4135/9781412965811.n297.ISBN 978-1412965804.LCCN 2008009151.OCLC 750831024.

• InAlienable (2008) – Assistant to Crystal Barry (Marina Sirtis) (InAlienable IMDB entry)

• RandyBarnett.com
• Appearances at the U.S. Supreme Court from theOyez Project
• Randy Barnett atIMDb
• Appearances onC-SPAN