So this is why I was sitting in an antique barn in La Fox, Illinois, with Georgetown law professor Randy Barnett on the hottest day (so far) of 2012:
1) Randy is one of the country’s foremost libertarian scholars of the Constitution, the leading intellectual in a movement called the “Lost Constitution,” which holds that the document and its amendments include powerful restraints on Federal power, which have been routinely and disastrously ignored by politicians and the courts;
2) An important part of this critique is the belief that the Court went astray in the signal 1942 SCOTUS case Wickard v.Filburn, in which the Court ruled that the US Government could use its power to regulate “commerce… among the several states” (Article I, Section 8) to regulate something that didn’t involve either commerce or several states;
3) The “Filburn” in Wickard v. Filburn was a farmer, Roscoe Filburn, who (according to the legend told around Heritage Foundation campfires to scare young conservatives*) simply wanted to grow wheat for his own use at his own farm, but was forced by the Agricultural Adjustment Administration and ultimately by the Supreme Court to pay a fine because he exceeded his growing allotment;
4) That case, in effect, gave an excuse to the Federal Government to expand its power exponentially in the post-WWII years, much to the consternation of conservatives and libertarians such as Randy Barnett;
5) Mr. Filburn’s farm was sold years ago to a developer so we substituted one in La Fox for atmosphere.
Randy was also the primary scholarly architect of the legal challenge to the Affordable Care Act, aka “ObamaCare,” and as our interview took place just days after the Supreme Court upheld the law, we expected him to be in a bad mood. We also expected him to take a partisan line – after all, he was a combatant in one of the most bitter partisan fights of a partisan age – but he was affable, expansive and pleasant, talking not like a partisan but as a scholar, in terms of principles, texts, and history, albeit one who is very practiced at explaining his ideas to non-scholars.
Randy Barnett does not like the Federal government. Again, it’s not a partisan issue; he doesn’t like the thing itself, as opposed to the people currently running it. (Though he doesn’t have many kinds to say about any of them.) As a historian, he holds that the Framers, James Madison, in particular, was very concerned that the Bill of Rights might be construed as a finite list of limits on government; ie, if it’s not specifically prohibited, then the government can do whatever it wants. No, Barnett says: what’s finite is the enumerated powers of the US Government, not its limits. To prove his point, he need only recite the 9th Amendment, which of course he can do from memory:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This Amendment, he says, as well as other Constitutional texts designed to protect personal liberty, have been for two centuries firmly and widely ignored, by the Supreme Court, Presidents and Congresses… an ongoing trifecta of Constitutional malpractice. He can cite many examples – The “Slaughterhouse” Cases, Wickard V. Filburn, etc etc. but his point is simple: The Federal government was created with limited powers, and we continue to ignore those limits to our peril.
The Federal government is a particular danger, he says, because if a State oppresses us, it’s relatively easy to leave. If the country as a whole does it: not so much. But his larger point about the need to restrain the Federal government is really no more than this: if we are concerned, as we should be, with preserving individual liberties, it is better, easier, and more effective to prevent the Government from taking them away in the first place – as the Constitution was written to do – then trying to get them back. This, he says, was the true wisdom of the Framers, and what he and his colleagues are trying to restore to our current understanding of the Constitution.
MiAngel Cody also has a lot to say about the wisdom of the Founders, though in comparison to Barnett’s critiques, she comes across as a wide-eyed idealist. But it’s a well-earned idealism, or at least, a well-tested one. MiAngel works as an assistant federal defender in the court system, representing indigent defendants facing Federal charges.
She has a funny way of talking, in that many of the things she says would qualify as complaining. She told us that the majority of her clients have substance abuse problems or mental issues and that many of them can’t read. But she doesn’t sound like she’s complaining. She’s not bragging either, as in “Look at me, look at how virtuous I am.” She’s describing her role in the justice system – defending people who are otherwise defenseless.
MiAngel has a sense of humor, and was more than willing to joke around with me about her courtroom tactics – she told me, with a straight face, that she’ll sneak into the courtroom and switch around the tables, if she has to, so her side has a better-looking one than the prosecution. But when we sat down and talked about the Constitution – particularly the 5th, 8th, and 14th Amendments – her voice took on an almost religious tone.
This was true even when she was speaking of the case of her client Reynolds Wintersmith, a first-time drug offender who, in 1994, was sentenced to life in a Federal penitentiary at the age of 20, for a crime committed at the age of 17. The sentence was mandatory, imposed by sentencing laws that were first modified by the Supreme Court, and then overturned by Congress, when they decided that maybe it was a bad idea to require judges to send minors to prison for life for selling crack, no matter what their circumstances. However, neither the Supreme Court ruling nor the legislation was retroactive, so Wintersmith faces dying in jail because of what everybody agrees was a mistake. (MiAngel told me something I knew : there is no parole in the Federal system. A life sentence is a life sentence.)
If you are sympathetic to his case, then you’ll have to concede that Wintersmith has been failed repeatedly by the justice system. First, the judge in his case was forced to sentence him to life, not because he was violent or was a repeat offender, but because in a panic, Congress had decided that crack dealers were as bad as murderers, even 17-year-old crack dealers. Then Congress changed the law, but made no provision for those already sentenced under it; then the various appeals courts refused his entreaties for mercy or a re-sentencing. So now, in his late 30s, all that is possibly left for Wintersmith is the Presidential pardon power granted in Article II, section 2. MiAngel, suffice to say, is particularly grateful to the Framers for that provision.
It was an interesting day of contrasts – and not just because the barn wasn’t air-conditioned, and the courthouse where we interviewed MiAngel was. Randy and MiAngel have something surprising in common, given their differing views: both have worked in the criminal justice system in Cook County, IL, MiAngel as a defender, Randy as a prosecutor. Randy was the hammer in the hands of the state, wielding state power against whomever he and his colleagues saw fit, and now has a deep distrust of that same power, and has spent his subsequent career trying to limit it. MiAngel fights the government every day on behalf of the powerless, the poor, and yes, the guilty, and yet still seems to admire the power she’s fighting.
I would guess that’s because she still sees herself as part of the system, and therefore ascribes to the government the value of the work that she herself was doing. Maybe Randy felt the same way – after all, your view of state power would be affected profoundly by whether you saw its primary role as one of assuring prosecution and punishment, or defense and freedom.
Interesting tidbits about each of them:
Randy says that the two highest pinnacles of his professional life, the two things he’s most glad he’s able to say he’s done, were:
1) Arguing a case (Gonzales V. Raich) in the Supreme Court of the United States, and
2) appearing as a lawyer in the low budget sci-fi film InAlienable, written by Star Trek’s Walter Koenig.
As for MiAngel, she told me the most terrifying moment of her life was
when she hurt herself badly in a flag-football game. (She’s a
cornerback) But was really interesting about her is that when you call
someone “MiAngel” all day because that’s their name, it sounds like
you’re being really affectionate, and after a short, while you become
used to it and then you start feeling affectionate and generally quite
happy. It’s the verbal equivalent of making yourself cheerful by
forcing yourself to smile. Fun.