 Abortion rights struck down. Gun rights expanded. Prayer on the 50 yard line of public school football fields approved. As the most momentous and controversial Supreme Court term in recent memory comes to a close, are things looking better or worse for libertarians? Georgetown Law's Randy Barnett, arguably the most important and influential libertarian legal scholar walking the planet today, applauded some of this term's rulings. But he's also worried that the new six to three conservative majority may be too quick to sign off on laws restricting the explicit and implicit rights of individuals guaranteed by the Constitution. In an episode of the reason interview with Nick Gillespie podcast, Barnett and I talked about the Dobs decision that struck down a woman's right to an abortion. The Bruin decision that struck down in New York state law limiting the ability of gun owners to carry weapons and other major rulings. We talk about the general direction of the Supreme Court and whether it's headed in a more or less libertarian direction. And we discussed the treatment of Ilya Shapiro, the former Cato staffer who was going to join Barnett at Georgetown until a controversy erupted over one of Shapiro's tweets, which led to him ultimately taking a job elsewhere. The university's refusal to strongly back Shapiro's speech rights says Barnett was shameful but sadly indicative where law schools are these days. Take a listen. Here's the reason interview with Randy Barnett. Go to reason.com slash podcast to subscribe. Randy Barnett, thanks for talking to reason. Thanks for having me back again. Let's talk about abortion. The Dobs decision was decided six to three. It got rid of the federal right or a right at the national level to abortion. What's your top line response to the decision? Is it a good thing or a bad thing? Or is that the wrong way to even be talking about Supreme Court decisions? Well, I tend not to first approach Supreme Court opinions on the basis of policy, rather more on the basis of principle. And this case was a long time in coming. The conservative legal movement have laid the foundation for the reasoning that Justice Alito used at least for 20 or 30 years. They have been questioning the legitimacy of what's called substantive due process. And you saw in the concurring opinion in this case, Justice Thomas completely repudiated any legitimacy for substantive due process. But because they believe that substantive due process is contrary to the original meaning of the constitution, they have developed a doctrine by which they limit what it can be used for. And this doctrine, which is sometimes called the Bluxburg approach, but it actually creates Bluxburg. Can you just very quickly, the Gluxburg decision, what did that represent? That was the physician assisted suicide case, where the court held that there was no fundamental right to a physician assisted suicide. It was a case in which I think no one dissented. I think everyone agreed with the outcome, although there were many opinions about it. But the main opinion basically said that the reason why there was no such right is because that right was not essential to ordered liberty or deeply rooted in the nation's tradition and history. So this idea that a right in order to be protected under the due process clause of the 14th Amendment had to be deeply rooted in the nation's tradition and history as a doctrine that's been long developing. In the Hibbs case, which was the case involving an unreasonable fine or an excessive fine under the 8th Amendment. And the question is whether the excessive fines clause apply to the states or not. It was one of the last enumerated rights to be applied to the states. In the majority opinion by Justice Ginsburg, Justice Ginsburg used the deeply rooted in the nation's tradition and history approach rubric in order to decide whether the excessive fines clause was part of the, you know, being free of excessive fines was part of our deeply rooted tradition history. So this is a methodology that's been long developing. And I think it has always been aimed at abortion. Right. In other words, this was- So it's not that long developed. I mean, so it's really, it only goes back to at the earliest, really the early 70s, right? Right, as this new doctrine, I mean, the language itself is older than that. It borrows from language that even predates that. But the idea that this is a limitation on substantive due process, on the due process clause, using the due process clause to protect substantive rights, the fact that this is a limitation on that, that goes back, I mean, into the 90s, I would say, the 80s and the 90s. How do you feel about that? The substantive due process, my understanding of it, and please correct me and elaborate on it, but there's procedural due process where laws are legitimate as long as they're passed by legislatures or representatives who are elected fairly and freely and it's legit. And there's essentially no limit on what a majority can say. But as long as they are legitimately elected and they represent the people, and however we're talking about that, substantive due process says there's limits to that, right? That there are certain rights that the government can never take or take away from people or just because a majority says it's, 51% says something. It's like, no, the government was actually created in order to protect our rights that can't be voted away. So how does this apply specifically in the DOBS case? Well, I need to say a little more about substantive due process. There's the modern doctrine of substantive due process and then there is the conservatives rendition of the due process clause. Then there's what I think the original meaning of the due process clause requires. So the modern doctrine is very simple to state. Judges have to identify certain liberties as fundamental and then those liberties get what you might call super duper protection or strict scrutiny. I really hope that you use that in all of your legal documents. I always think when I teach, when I teach, I use super duper protection. And so fundamental rights get super duper protection, mere liberty interests, which are all the other liberties we have, get virtually no protection. They get what's called rational basis protection but it's really more like conceivable basis protection. That's modern substantive due process. That's post new deal substantive due process. The conservatives, the court and conservative constitutionalists have argued in favor of what you accurately described as procedural due process only, which is the idea that if along as a law is validly enacted by majorities in both houses and signed into law by the governor or by the president, that's due process when it comes to making a law. In my most recent book, the original meaning of the 14th amendment, it's letter in spirit. My co-author and I treat each one of the operative clauses in section one of the 14th amendment. There's the privileges or immunities clause. There's the citizenship clause, privilege or immunities clause, due process clause and equal protection clause. When we talk about the due process of law in the due process clause, we argue that the due process of law requires not only this fair process, this fair procedure that procedural due process supposedly protects. It also requires that no one be deprived of their life, liberty or property except by a valid law. It's the due process of law. And a mere act of a legislature is not necessarily a valid law if it's not within the scope of the legislative power. So the due process clause requires us to examine, is this law within the scope of the respective legislator's power? In the case of the federal government, is it within the enumerated powers of Congress? If it's not, then it's not truly a law and therefore due process of law would say you can't be deprived of your life, liberty or property. At the state level, it has is to do with whether it's within the police power of states. So this conception of due process is substantive, not because it identifies substantive rights. That's what the modern substantive due process incorrectly does. It's substantive because it evaluates the substance of a state law or a federal law to see whether the substance of the law is within the power of the legislature to enact. And that would mean you'd have, it'd have to be if it's a state law within the police power of the state to protect, for example, the health and safety of the public. That would be the core of the police power that everybody agrees, everybody agrees is within the police power of states. There's disagreement about whether there's also a power to protect the morals of the public. But the idea that it's a health and safety law would be within it. So therefore, I disagree in some sense with both the substantive due process approach with the majority in Glucksburg because it's operating within modern substantive due process doctrine, which says some rights are fundamental and other rights are not, they get no protection. In fact, that's the implication of DOBS because they found it was not a fundamental right. It got no protection at all. I disagree with that. I also disagree with Justice Thomas' concurring opinion in which he suggests that the process is only about the procedures that are followed to deprive you of a life, deprive you of life liberty or property. So, Lido's opinion, is it right? Do you think it's accurate or do you think it is wrong? It's extremely well done. Let me first by saying it's extremely well done. It's a bit more originalist than I expected it to be. I thought when I read the leaked opinion and I didn't read it that carefully because it was only a leaked opinion, when I read the leaked opinion, I thought, look, this is just nothing but substantive due process, modern substantive due process done the conservative way. And the conservative way is to basically find no more rights being fundamental than the ones that have already been recognized and Roe is not going to be found to be a fundamental right. That's kind of what this whole thing was set up to accomplish. But there's a little more originalism in there than I thought because he places a great deal of stress on whether abortion was legal or prohibited in 1868 when the 14th Amendment was enacted. The reason why that's originalist is because that goes to what the scope of the state's police power is. And if, for example, it was thought to be and in fact was within the police power of a state to handle the issue of abortion this way, then in that case, it would satisfy the due process of law because such a law would be within the due process of law. It would be a genuine law within the police power of a state to act. And that would suggest that a right to an abortion is not, you know, it's not part of American tradition, custom and law. Yes, it isn't, but the reason why it under my, not necessarily under the majority's reading, but I think he gets there. He almost gets there anyway. Under my reasoning, the reason why it would, it would, there is no such right is because it would have been within the scope of the state's police power. This does not therefore violate any rights because it's within the scope of the state's police power. What happens if, you know, and I'm thinking my colleague, Damon Root, whose work you have said admiring things about. It's, and you guys often agree on things, but he wrote for us, he said, Alito's decision, you know, kind of does real violence to unenumerated rights, but it's also just historically inaccurate that at the founding of the country and up through a good chunk of the 19th century, abortion before quickening, you know, roughly, you know, about 20, 24 weeks was actually legal. It was not criminalized, blah, blah, blah. So that when Alito says there is no, you know, historical grounding of abortion rights in America, he's wrong, but also that simply because the, and then simply because the constitution doesn't mention something, it does not necessarily mean that the government can regulate it or restrict it. Yeah, well, I agree with Damon about the latter. And in fact, what the conservative approach to substantive due process basically says is unenumerated rights are highly suspect, see Roe v. Wade. Right. And we're not really gonna recognize any more of them. And, you know, the Ninth Amendment, we're gonna dismiss for some reasons and the privileges or immunities clause or the 14th, we're gonna dismiss for other reasons. And so I think that they do, they do a disservice to the function that unenumerated rights ought to play in our constitutional system. As you well know, that's what I think. Right. On this issue of the abortion in particular, and I have to stress that this is not my area of expertise, that is I am not an expert on the history of abortion laws. I know what I know, secondhand oftentimes reading a briefs or a pellet court opinion, just so this be clear. Justice Alito addresses this issue and by citing a couple of sources in which the laws didn't seem to discriminate between pre-quickening abortions and post-quickening abortions. And we should tell everybody what a quickening abortion is. It's when there's fetal movement. And so it was without question, I believe, illegal to perform an abortion after there was fetal movement. The dispute is over whether it was also illegal beforehand. There are people who argue that it was, Damon is relying on scholars who make that claim, but there are others who say it wasn't and Alito cites examples of laws banning abortion that did not make that distinction. And then he says something else, he makes a move which I think is highly suspect. It's a critical move here. But I do think it's highly suspect. And that is to say, just because they didn't legislate on it, even if they didn't legislate on it, doesn't mean that anybody thought they didn't have the power to legislate on it. Well, that is gonna throw into doubt pretty much any liberty that isn't mentioned in the text of the constitution. It's gonna be very difficult to sustain the burden of showing that a liberty, just because it wasn't regulated, nobody thought it could be regulated. This actually will become relevant in discussing Justice Thomas's approach to the Second Amendment in the Gruen case. But anyway, that is where, so Alito makes two critical moves in response to Damon's argument. One is to dispute the history. Damon says he's got the history wrong. Alito says the other people have the history wrong. But the second thing is to make this move to say, well, even if it wasn't regulated, that doesn't mean anybody thought legislatures didn't have the power to regulate it if they wanted to. That's a very sketchy move to make, I think. But it's one that, in fact, Justice Scalia used to make all the time. So it's not an unfamiliar move. It's just one that I find to be a suspect. Yeah. Before we go to Thomas's discussion of substantive due process and his concurrence, can you talk a little bit about Starry DeCises? Because that was another concept I got talked about a lot here. And all of the newer Supreme Court justices or the people nominated by Trump or appointed by Trump all gave at least some kind of lip service, although when you, too, the idea that Roe was settled law and that they're not gonna mess with it. It's interesting that in a lot of the clips that I was watching on cable news and whatnot, these people are lawyers. They're obviously really good at making very specific arguments that leave a lot of wiggle room and interpretation. And none of them, in anything I saw said, Roe versus Wei is settled law and I would not rule against it because it is settled law. They all say something that's much more anodyne than that. But can you discuss briefly what Starry DeCises is and the way in which Alito dispenses with that as a stumbling block to overturning Roe and Casey and existing abortion kind of rights line? Sure, Starry DeCises is the idea that a current court should follow the decision of a previous court, even if the current court disagrees with the decision of the previous court. Why? Because it's precedent. And there's all kinds of arguments on behalf of precedent, stability, consistency. There's epistemic considerations about whether, you know, how right do we have to be now to say that they were wrong before? Now, there's two things everybody agrees on. This is why this is kind of a non, this is an issue that people make a lot. It's all smoke and very little fire. There's two things everybody agree on. Number one, lower courts should be bound by the decisions of the Supreme Court. The lower courts in the Constitution are referred to as inferior courts. The Supreme Court is called the Supreme Court. That's not just the name, it's the function it has. So everybody, except for one guy I know, who I respect, who dissents on this, there's always gotta be one, right? Usually it's me. Yeah, I was gonna say, I'm surprised you're not arguing it to yourself right now, but. So everybody know, everybody believes, agrees that lower courts need to be bound by higher courts. This is what's called vertical stare decisis. So lower courts should be bound by the higher court, the Supreme Court's decision, even if they disagree with it. Okay, what's an issue here is what's called horizontal stare decisis. And that is, is a current Supreme Court justice bound by a decision of a previous Supreme Court justice. And let me just tell you the dirty little secret. There's nobody on the court who I think has ever been on the court who thinks that the Supreme Court can't reverse its previous precedence. Therefore, but everybody agrees lower courts can't do it. An inferior court can't reverse the Supreme Court. But everybody believes that today's court can reverse the previous decision of the court. It's been done since the beginning. And it has been done a lot over the last 100 years. Tremendous numbers of precedents have been reversed over the last 100 years. Many of them are, we're very grateful that they reversed. Patsy versus Ferguson was reversed, for example. But some of them we might regret that they were reversed. Anyway, the point here is the only thing we're debating about is when and under what circumstances. So just saying that a decision like Roe or Casey, our precedence and therefore the law of story decisis, story decisis says that ordinarily, but for certain circumstances, we ought to follow them. Is just stating what everybody believes. And then everybody also believes that under certain circumstances, you should not follow them. And you find that it tends to be the case. And now I'm gonna put my legal realist hat on here. Which is, I think when you talk about the Supreme Court, sometimes the right hat to wear. And that is, whether they wanna follow previous decisions or not tends to be up to what the, whether the justices in particular really like those decisions or don't like those decisions. Or the other reason to follow previous decision is you may not like them, but you don't wanna open the political can of worms of reconsidering them. Think all of the new deal. There may be justices who say, well, I have doubts about whether the new deal expansion of economic regulation was really constitutional, but it's too late in the day for us to reconsider all that. And cause the story decides this, I can't go, you're holding me back, holding me back. I can't go there. But in fact, if they know if they went there, they could blow up the court. Okay, so let's talk about Clarence Thomas's concurrence where, and what's been getting a lot of attention is, where he said, not only should we have done this with Roe versus Wade a long time ago, but the rulings that dealt with contraception, sodomy laws and getting rid of sodomy laws and validating or legitimating gay marriage, those need to be reconsidered as well. What is his argument for that? And should people who believe that the right of married people to buy contraception, that sodomy laws are in affront to liberty and that gay marriage should be national right, should they be concerned? No, they shouldn't be concerned, but for a lot of reasons, not just one, we can get to whether they should be concerned or not. What he's up to here, first of all, to be technically accurate to what he's doing, to be faithful to what he's doing, he is not claiming that any of those cases were wrongly decided. He is not saying by reconsidered they should be, he means they should be reversed. What he says is these were all cases decided based on substantive due process. I think substantive due process is a lot of hooey. Therefore, I think that any case that was decided on the basis of substantive due process should be reconsidered and then he says, and we should see whether perhaps they can be justified under other clauses of the Constitution. In particular, he mentions the privileges or immunities clause of the 14th Amendment, which he alone on the court so far is interested in reviving, whereas all the other justices are happy to stay within substantive due process. Justice Thomas has long argued, dating back to the McDonald case and earlier, that only this privileged immunities clause is to protect substantive rights. I think in the case, by the way, of Loving versus Virginia and interracial marriage, the conservative position on this and his position would be, and he is himself in interracial marriage, is that this was barred by the Equal Protection Clause because it was a racial discrimination and racial discriminations are per se unconstitutional or largely unconstitutional. So that's how he would deal with that. So he is not saying reverse all of these cases. But he is also opening up the possibility of, you revisit them and say, you know what, for the same reason that when the 14th Amendment was adopted, there wasn't a lot of contraception. So it's not deeply rooted in American tradition or history. Sodomy was around, but it was illegal and gay marriage obviously didn't exist. So it would seem that what he is signaling, plus he, in sodomy cases and gay marriage, he was like, yeah, there's nothing wrong with passing laws against these things. It's complicated because he's not adopting the majority's approach of finding it in history and tradition necessarily, although he kind of does do that in the gun case. So it's complicated. He's, I'm trying to remember back in 2004, Howard Dean briefly touted himself, the Vermont governor was running for president and said, I'm the candidate of guns and gays because Vermont had pretty liberal gun laws and it was the first state to sanction gay marriage. Clarence Thomas would say, I like guns, but gay marriage, not so much. I don't know. I think if we just stay at the level of what he said and how threatening it is. Okay. A, he's not saying reverse these cases. That's the first thing. Now it's true. I think you make a fair point and it's made by the dissent also. And that is that if you take Justice Thomas's rationale seriously about substantive due process, and you take away substantive due process, it's not clear that any other theory would be available to uphold bands, to invalidate bands on contraceptives and things like that. That's a fair response. It's just not saying it today. He's not making a commitment one way or the other. So that's number, I'm not saying that's a reason not to be concerned. There is another reason. I mean, he is well known for doing this in other, in dissents in other cases or concurrences including gun cases where it's like, hey, maybe we should think about this down the road. And it ends up, he ends up, I mean, and this is something Damon Root talks a lot about, and I know you have as well as critics, arch critics of Thomas, he's actually about the most influential member of the Supreme Court in profound ways. So when he, what he says, we should take seriously and look at with care. He is very influential in part because of what I would, what I have called the gravitational force of originalism. And that is that even if the court is not doing originalism, the fact that they have a belief in their head about what originalism requires itself has a gravitational force and pulls them in that direction. That's why because they have a particular view of the due process clause, that the due process clause is procedural only, they're not doing away with substantive due process, but they think they should limit it. They should limit substantive due process as much as they can, because of the gravitational force of originalism that's exerting a pressure. Justice Thomas articulates the originalist position, even though I think in this case he's wrong, but he articulates the originalist position and therefore there's a, there's a gravitational pull towards his position by the others who are not going all the way. But let me get to why people shouldn't be that concerned at this point. It's not because Justice Thomas's arguments have taken to a logical conclusion might not jeopardize these rights because they might. It's because he stands alone on this court as being prepared to do any of that. The other justices made it very, very clear that they're not interested in doing that. And here's the other key. If you think that the court as being political in somewhat political in nature, and I know you want to get to that later in this discussion, there is just no political impetus to do these things now as there has been on abortion. That is abortion is not only different for the reasons that majority says it is, which is it involves the killing of a human. For the potentiality of life, right? Whatever, however you want to characterize it, it makes it different than all these other things. But in addition to that, what's different about abortion is there's been a near 50 year political movement to reverse Roe versus Wade that everybody alive today, pretty much everybody alive today has been a product of or a part of, one way or the other. A witness too, certainly, right? Exactly, and there is no such political impetus to do the things that might be the logical conclusion of what Justice Thomas is saying. So for all practical purposes, and really at some point people are, particularly non-originalists are just trying to be practical. For all practical purposes, I don't believe any of these rights are in jeopardy at this time. I hope so, but what I worry about when I think about that is that according to Gallup, since 1975 when they started polling, only 19%, a maximum of 19%, and basically an average of 19% were opposed to all abortion, which is what agitates the pro-life movement. So 80% of Americans basically are in favor of abortion in all or some or most circumstances. Only 70% believe that gay sexual relations are moral and only about 71% believe in gay marriage. So in a way, there is more of a political constituency against, or rather, there is more, fewer people believe in abortion rights. I'm sorry, I'm messing this up. There is a stronger political, or not political case, but cultural consensus that is kind of dubious about gay relations and gay marriage than there was about abortion. I don't know that that's still true. The success of the gay rights movement has been astonishing. Absolutely. In our lifetime. But I'm saying that still 30% of people still say gay relations, gay sexual relations are immoral, according to Gallup. This is going to have to manifest itself in state laws that come under challenge that the circuit courts of appeal are not going to dispense with, and then the Supreme Court will decide to grant cert and take up that case. All those things have to happen before the court will revisit any cases. Look, it took the court, what is it, 12 years to revisit the right to keep and bear arms? Yeah. A right that they had recognized in 2008 and reaffirmed in 2010, and now it's 2022, it's the first time they've slapped down lower courts, vitiating that right, undermining that right. And that's a right that presumably a majority of them agreed with and they wouldn't do it. So I just don't think that this is an immediate, or even an immediate, correct. Let's talk about guns in a second, just to close out the discussion of abortion. Does the, in your estimation, we've already seen about 13 states had trigger laws saying if Roe is overturned, if the federal right to abortion is overturned, certain laws banning or heavily restricting abortion in those states go into effect. Do you think there will be any limit on banning abortion that the Supreme Court, that a state can put in where a Supreme Court or a higher court would say, you know what that is? No, that goes too far. Or can states now say abortion is gone? I can think of one, and that is life of the mother. The Texas abortion law that was invalidated in Roe versus Wade did make an exception for the life of the mother. That was the one that was invalidated. And so that, what happened after that was the way the court worded it is life and health of the mother, and that sounds reasonable, but then health became interpreted as mental health. And once health was interpreted as mental health or well-being, then that turned into abortion on demand as opposed to life of the mother, which is an exception. So health of the mother became the exception that swallowed the rule. People inside this debate understand this, understand that outside the debate, people don't understand it. But in, so life of the mother, there's a general consensus that when there's a medical emergency that threatens the life of the mother, then abortion is perfectly permissible. I'd be surprised if we see any states that deny that, but it could happen. Outlier states could happen. I'd be surprised if lower courts didn't invalidate those laws still. They might, they might not. And we'll have to see how that goes. Are you, do you think this, one of the arguments about Roe and people like Ruth Bader Ginsburg made this when Roe was first pronounced that it unnecessarily politicized the abortion issue because various, I mean, she was bringing a case that would have been, would have pushed for a right to an abortion under different, not under privacy considerations, which went into Roe. But she said, state legislatures were working on this and things were moving ahead. And that Roe unnecessarily politicized the issue, right wing conservative pro-lifers constantly point to that position by Ruth Bader Ginsburg, that, you know, that Roe that unnecessarily politicized abortion, now Roe is gone. Are we gonna see an increase in the politicization of the abortion debate or now that I think back to the state? Oh, I don't think there's any doubt about that. I think what people, that's a certainty. What nobody knows is which way is that going to cut? Which way are the, we've had 50 years without, with a different kind of a politics over Roe than we're gonna now have, nobody knows. This is really uncharted territory. Nobody knows what this kind of politics is gonna look like. It's, yeah. Well, we know in the early stages or pre-stages it's extremely extreme, right? We're seeing a lot of people say abortion is murder and so we're gonna try and ban it under all circumstances. Other people saying, because abortion is threatened outside of California and New York, we're going to open up abortion on demand to its logical conclusion. And by the way, if people are curious as to why I think life would actually be a recognized exception to any such statute and that is because the life of the mother, the right to preserve one's own life is amongst the most fundamental of the fundamental rights we have and is deeply rooted in the nation's tradition and history. So the extent to which a woman has a right to preserve her own life by taking a medical procedure that might cost somebody else a life but nevertheless, they have a right to preserve their own life. That's something I think that the courts would have very little difficulty upholding. Final question about abortion. Brett Kavanaugh and his concurrence said that states don't have the right to ban travel to get an abortion. Like for women seeking to get an abortion. The right of travel is an unenumerated right or it's recognized as an unenumerated right. Is there any reason to be worried that states will try to say, no, you can't leave Missouri, you can't leave Mississippi or Texas for the express purpose of getting an abortion? Here's a fun fact for you. The only right, the only substantive right that the privileges or immunities clause has ever been used to uphold since it was basically negated in 1873 and today is in the 1999 case of Sends v. Rowe where a majority of the court used the privileges or immunities clause to protect the right of interstate travel. So that right, such as it is now is not based on the due process clause. It's based on the, at least not entirely on the due process clause. It is also based on the privileges or immunities clause as a fundamental right of citizenship in the United States. And therefore, I think Justice Kavanaugh is on strong grounds in saying that that's a right that needs to be protected, that can be protected by the courts. Do you... There is, however, another danger looming there. It's a danger for, there's a threat on both sides. And that is, it's the threat of a national law passed by Congress on one side of the abortion issue or the other, either a law recreating a right to abortion using, for example, a commerce power or a right prohibiting, or a law prohibiting abortion across the country using Congress's commerce power. And that brings up very interesting questions about the limit of the national commerce power. As you know, I was involved in two challenges to laws, the medical marijuana case of Gonzalez versus Rach and NFIB versus Zabelius in which I argued for a limited scope to the, of the commerce power plus the necessary improper clause. A lot of progressives were on the other side of that including a majority in both, in Rach and a plurality. And you would guess then if there was a national law passed that said abortion is right at the national level, liberal justices and certainly liberal activists would cheer that decision, you know, and say, yeah, this is a good use of the, of the commerce clause. Yeah. And conservatives. And if the reverse happens, the question is, would progressives or people who defend abortion rights assert a more limited conception of the commerce power? They weren't prepared to do that when medical marijuana was at issue. I could tell you that we got no liberal vote. Which is frustrating. And then the frustration on top of that, of course, is that conservatives who normally would, you would expect to say, you know, no Congress's power under the commerce clause is limited. We're like, you know what? When it comes to medical marijuana, yeah, we, the federal government gets to dictate the terms. Right. Justice Thomas might actually be a good vote on this, no matter which way the law goes, because he actually questioned, because he's, he's, he's quite strong on this. Will the three progressive justices go along with him? And would there be a fourth commerce clause vote? I suspect there might be. I suspect there might be. We might actually end up making good commerce clause law. Right. If, if, if Congress does either of those two things. Yeah. Just very quickly. Do you have strong feelings personally about abortion? Do you think that abortion should be allowed, that it should be legal under, you know, some most or all circumstances? I've actually never publicly addressed that question, and I'm not going to start today. Okay. Well, let's talk about guns, because that's, you know, along with the abortion decision, the other major decision arguably of this term has to do with Second Amendment. This is New York State Rifle and Pistol Association versus Bruin, another six to three majority decision that essentially ruled that strict limits on public carry of guns violate the Second Amendment. Can you kind of explain the, the, the basic message or the basic reasoning of the majority and then evaluate is this right or wrong? Well, I think the outcome is clearly right. I have a piece up on Skotis blog yesterday and I will actually excerpt it for the Vala conspiracy which is on reason.com later today so that you'll, you'll get a link to it there. And in which I argue that I think the outcome of the Bruin case is clearly right, a full disclosure as I do in my Skotis column, I am a concealed carry permit holder in the District of Columbia. And in my column, I talk about all the links you have to go and how much money you have to spend and how much time you have to spend to get a concealed carry permit under the DC law, which is a shall issue jurisdiction now because of a court order in 2017. It actually on the books, it's a May issue state like New York had. Let me just say the difference between shall issue and May issue. A shall issue state says if you meet certain requirements that have to be reasonable, any citizen may carry a firearm outside the home. It's a carry a concealed firearm outside the home. 43 states, if I accept the court's count of the have shall issue. So actually concealed carry is very, very widespread in the United States now. There are seven residual jurisdictions which have what's called May issue states and that is basically under those regimes, you have to show a special need that is something other than whatever need the general public has to have a firearm. Politically connected people are often able to quote show this need, but ordinary people cannot. This is like famously William F. Buckley, I believe, is able to get a carry permit in New York City, which is very different. Is he the most famous one? I don't know. Well, I mean, but it's very difficult to do, but if you know somebody. Right, I didn't. I've never heard that, but I've heard a bunch of liberals, of course. Anti-gun people who have got them. Yes. And I can't, there was some columnist at the Washington Post that famously had one, even used it. I think Carl Rowan you're talking about. Yeah, Carl Rowan. And I don't know if that was, I think he was at his home, so I don't know if it, but yeah, he shot an intruder. That was before Heller when you couldn't even have one in your home without a special permit, whereas now we could do that. I mean, so essentially what the argument here is that, you know, and it took decades or centuries for the Supreme Court to rule that the Second Amendment implies an individual right to own guns. And now we're at a point where it says, well, you know, in order to exercise the right of the Second Amendment, you really should be able to carry them. Is that essentially correct? Texturally it's pretty easy. It's pretty simple. If you believe the right to keep and bear arms as an individual right is a threshold matter, which the Supreme Court has decided, I think correctly, that it is an individual right, then keep guns means have them, bear them, bear guns means carry them. And so then the question is, does the right end to keep and carry arms and on your property? There's no right to keep and carry arms in public. And the Supreme Court in this case said, no, historically, and as a matter of original meaning, there was no barrier to carrying arms in public outside your home for lawful purposes. And one of those lawful purposes is self-defense. And so you can carry our gun outside your home for self-defense. Go ahead. Oh, I was gonna say again, Brett Kavanaugh, though in his writing on this decision said, he signaled that the Second Amendment though is not an absolute right. Right. Now, this is the problem I have with the Justice Thomas's opinion. And it's somewhat a problem. Let's not get to Justice Kavanaugh at this point. But I mean, it's a problem I have with Justice Thomas's opinion. He operates under the assumption, which many do. He's not alone. That if you have a constitutional right, if you establish it's a constitutional right, then it just can't be touched. And so once he's established it's a constitutional right that to carry outside the home, then the question is, can it be touched in any way? And he wants to basically say that it can only be touched. If the contours of the right, at the time it was recognized in 1791, if the contours of the right included preventing you from carrying it outside the home for this reason or that reason. If it didn't, then you can do it. So we determine whether a regulation or restriction on the right is constitutional by whether it's part of the right itself or it's outside the right and that's gonna be done historically. The way I think it's better to think of it, and I talk about this in my SCOTUS blog piece, is you have to distinguish between prohibitions. I should just say, this view of rights as being Trump's, rights as being super to any conceivable legislation, this is a modern conception of rights. It's a post-New Deal conception of right. It's not our historic conception of how constitutional rights work. It's better to think of the difference between prohibitions on the one hand and regulations on the other hand. So if you have a constitutional right, the government may not prohibit its exercise. And it can regulate it. But it can regulate it. And so this helps explain, thank you. I think if I'm understanding you correctly, the way that gun rights people talk now, it's that there should be no laws at all, limiting, restricting, regulating any ownership of any class of weapon, any ammunition, any, anything. And when you go back to people like Ronald Reagan, I mean, within our lifetime, people who were gun rights activists were talking very differently. They were not saying that gun ownership, the right to keep and bear arms meant that anything goes everywhere. And I would say virtually no constitutional scholar in the gun rights camp holds the, you may not regulated position. So every gun rights, I'm a gun rights scholar. And every other gun rights scholar I know believes that all constitutional rights can be reasonably regulated. The question is how do you determine reasonable regulation from not reasonable regulation? You can't just calling it reasonable is not gonna get you there. And this is where you go to cases where, if the people passing the law or the legislature says, well, we're doing this because here's a hypothetical, that's not good enough, right? And if you're talking about kind of strict scrutiny or a legitimate regulation of a constitutional right. Right, that's one of the ways of arguing why it's not good enough. And the problem here with the Justice Thomas opinion in this case is he's trying to throw out all scrutiny. He's against tears of scrutiny. Well, there's a good reason to be against intermediate, rational basis, intermediate and strict. That might not make sense, but meaningful scrutiny on the one hand is something that might be required by the due process of law, frankly. So what then in terms of, you've already said you're a concealed carry, so anybody listening or watching this will know don't fuck with Randy Barnett. But what would be, what's an example of a gun regulation that you as both, I mean a scholar, but also a gun owner who went through extensive, jumped through extensive hoops to be able to carry in Washington DC, which is kind of an insane jurisdiction for this type of stuff. What's a gun regulation that you think is a good one or is plausible from a constitutional point of view? It's not that hard for me to answer this having gone through the regime. I had to undergo 16 hours of classroom instruction that covers two things. What is the laws governing gun possession and ownership in DC? And secondly, what is the law of self-defense? What is the law of armed self-defense? Now, I think that before you carry a gun in public, it's reasonable to expect you to understand what the laws are governing, carrying in public as it is to expect you to understand the rules of the road before you get a driver's license to operate a motor vehicle on a public highway. You don't need a driver's license to operate a motor vehicle on private property. But if you're gonna go on to a public thoroughfare, you do and then you need to pass a rules of the road test. The problem I have with the DC regulation isn't that it making me take this course. Once I took the course, I immediately saw how valuable it was because I didn't know that I'm a law professor. I'm even somebody who was in the gun rights space and I didn't know all these rules. And for one thing, they kind of scared the bejesus out of you in terms of carrying because you see all the risks you run. However, did there need to be 16 hours, two days, worth of instruction to cover this? Absolutely not. This could have been covered in two to three hours. The 16 hours is punitive. The 16 hours is calculated to raise the cost of exercising this right so fewer people will do it. Not to mention the fact you have to pay a lot of money to take the course in which they're gonna teach you this. So I think requiring rules of the road, now it's not necessary. It's not constitutionally obligatory for states to do this and there are states that have constitutional carry that don't require anything. I just don't think it's unconstitutional to say before you can carry in public, as opposed to on your own property. You need to understand what the law is that's gonna govern you when you're in public. So I consider that to be a reasonable regulation. It's not telling me I can't do it. It's just telling me if I do it, here's how to do it. And I think when they're telling me how to do it, that has a health and safety rationale that's justified under the police power of the states, which gets us back to what I was saying earlier, that a law needs to be within the legislative power of the states. This would be a health and safety law. What do you think explains, and I mean this in the best faith possible kind of context, you know, the fact that gun right activists have really gone to the extreme. I mean that generally the discourse is not about recognizing an individual right to own and bear arms subject to legitimate regulation. It is, you have no right to ever say anything to restrict anything that I wanna do related to weapons. And I guess what, and it's not just on gun rights, people would argue that that's what happened with abortion. It went from being a kind of more limited thing to, well, it's gotta be abortion on demand or going the other way. I guess it's a general dynamic where pro-life people might have started, might have said, okay, you know what, like maybe pre-quickening or however we wanted to find that first trimester, that's okay. But then it gets zeroed out to maybe not even the life of the mother. What explains the kind of move to the extreme position in any given kind of legal or cultural controversy? Well, in the gun context, I think part of what explains it is extreme skepticism that virtually any gun law that is proposed now is actually being proposed in good faith to genuinely protect the health and safety of the public as opposed to stigmatizing the exercise of the right or raising the cost of its exercise to the point where people can't do it or make possible future laws that by which guns can be confiscated and taken away from you. For that's for example, the argument against registration. Right. What do you, you know, to say you have to, I actually, my guns are registered in the, in District of Columbia, because they have to be. But you know, say, who has any objection to that? That doesn't stop me from having a gun. That seems like a reasonable regulation. All I have to do is have it be registered. Yeah. Except that I understand that there is a large part of the American political activist group that wants to take away all my guns. Do you feel that way about car registration? There is no political movement to take away our cars, although there may be a movement to take away internal combustion engine cars. But there is no movement to take away our cars. I think that's the perfect, you raise a perfect example to distinguish the one. The ability to possess a car is not under constant threat. The ability to possess a gun is under constant political threat. Therefore, registration makes it possible to take guns. Without registration, you can't find the guns to take them. That's why people would oppose the so-called reasonable regulation of, because it makes possible an unreasonable prohibition. So you could see in a different context where gun registration was not in the context of a movement that's always working to take away guns. You might feel like, yeah, I don't care about it. That's fine. I think a lot of people might feel that way, but that's not the world in which we've lived in since the 1960s when the gun control movement started up. And the registration or in the May issue jurisdictions in the country, I mean, one of the things, and I know a number of people, including myself, I'm not particularly interested in gun rights, or I prefer a broader interpretation of the Second Amendment than a narrower one, but it's not a hot-button issue. But one thing that always gets under my skin is when you're talking about May issue places, and oftentimes, the person who wants the permit has to go to law enforcement to get them to say, okay, yeah, yeah, we're gonna give you this. And like half the time, they're afraid of the law. So it's a kind of ugly situation. But we're not done with that regime because California law requires that you be a good moral character. And it's up to law enforcement to assess whether you are or not. And I think I can expect that all the other May issue states, like New York, for example, are gonna start issuing those kinds of ways of restricting people to own guns. And that's not quite the same as saying you have to have a specialized need that the public doesn't have. This sounds more like, are you a law abiding American? But on the other hand, if you're saying, are you a moral? And they're basically looking at statements that you've made and times you may have been arrested but never convicted. This is actually the regime in California now. So I think we can expect those laws to come under challenge. Why did it take so long for the Supreme Court to recognize an individual right to possess and to own and bear arms? The answer to this is a big picture answer about how the Supreme Court gets chosen over time. And that is the Supreme Court that is composed. And this actually gets to a question that you said you wanted to get into, which was the Mark Tushnet question about how much does the Supreme Court lead or follow the general public? The Supreme Court has many virtues. I'm a big fan of having a Supreme Court that's independent of the other branches. But remember, Supreme Court justices are nominated by a politically elected president. And they can only nominate people that they think are gonna get confirmed by a politically elected Senate. Now, having just said that, don't you see how there's got to be kind of a limit on who is ever going to a political limit and who's ever gonna get to sit on the Supreme Court in the first place, apart from all the other restrictions that would stop someone from sitting there. And so that's gonna like eliminate the extremes, even if the extreme is correct. So if you think that it's an extreme view of the Second Amendment, that it protects an individual right and that these gun laws are unconstitutional and judges should be invalidated and if you think that's an extreme view, as for example, Chief Justice Warren Berger, who was nominated to be Chief Justice by Richard Nixon thought, he thought this was a theory that was a conspiracy or fraud perpetrated on the public by the NRA. That's what Warren Berger thought. Well, if you have justices picked from that cultural milieu, that's how they're going to approach this question. And it took until now for the gun rights movement to have enough to exert enough influence over enough presidents and enough senators before to get a critical mass of justices who were prepared to enforce the original meaning of the Constitution. And that's by the way, the last piece of this. And that is that a return to originalism is one of the things that helped gun rights because it said, courts should not be just making things up and courts should not just be doing what they think is right. They should do what the text says is right. And the text looks like there's a right to bear arms. Yeah, I remember from an earlier interview with you years ago, but you were talking about how, kind of when you were in law school, I mean, it's kind of insane and you've written a lot about the triumph of originalism, but lawyers and judges didn't really look at the text of the law a lot, which is kind of mind-numbing that. It started to take this long. It's a little disturbing to me that you remember what I said in our interviews over the years. Yeah, well, I'm a texturist. I mean, I don't know if I want to stand by absolutely everything I do. I get that, you know, certainly. But were there no cases in the 19th century? I mean, or when the first rules, laws regulating the ownership of guns started to come online and these were specifically geared, state level geared at blacks. Later, I guess in New York City and other places that when they enacted a gun control, it was explicitly geared towards my ancestors from Italy, people who supposedly had bad impulse control. Understandably. Steeped in the vendetta that I still live by. There were no, were there no challenges to that, you know, that made it to the Supreme Court to be like, no, actually like, you know, an individual right to own and bear guns that actually also covers blacks and Italians. Well, what motivated the Privileges Immunities Clause in the 14th Amendment in part was the fact that African-Americans who had, especially those who had served in the Union Army were having their guns taken away from them in the South where white militiamen were allowed to keep them. That's by the way, one of the arguments for why there's not a militia condition on the 14th Amendment, the militia was the problem for which the 14th Amendment was the answer. So the idea that those laws were unconstitutional go all the way back. On the other hand, the Supreme Court then gutted the Privileges Immunities Clause from the 14th Amendment leaving all of those Privileges Immunities Clause vulnerable to state legislation until the rise of modern substantive due process which started to bring back the protection of some of the rights that had been protected by the Privileges Immunities Clause originally. So that's part of the answer to your question. The other answer to your question is that almost all the earlier gun laws that we had until the 1960s movement to ban handguns which was the big movement in the 1960s and they started talking about Saturday night specials, for example. Almost all the gun laws that came before that I think were reasonable regulations. That is they may not have been great policy. They may have been better policies but they were not prohibited policies. And so there wasn't really a serious constitutional problem with virtually any of the gun laws that operated prior to the rise of the gun ban or the gun prohibition movement beginning in the 1960s. You know, that raises an interesting question that I wanted to ask about gun laws in particular. You know, one of the ways over the past, what, 25, 30 years at the state level there were massive liberalizations of gun ownership laws. It became easier to own and kind of possess guns in a wider range of circumstances. Part of the selling point of that was that at the same time guns were becoming easier to own, gun violence was going down. In the same way that you're talking about in the 60s, there was a lot of, you know, there was urban, a massive spike in crime, particularly in cities. There were high profile political assassinations with guns that led to a flurry of legislative activity. What we are witnessing now after decades of a decline in violent crime, you know, we're starting to see an uptick. It's still well below what it was in the 70s or even in the mid 90s. But do you worry, excuse me? Just wait. Yeah, well, do you worry, you know, and on the heels of, you know, a number of highly publicized school shootings, do you worry, and actually I guess Congress just passed legislation, right? Limiting certain types of gun rights, bipartisan. Do you worry that an increasing gun crime or gun violence will force a reconsideration of second amendment rights? I think it's going to be used for that end and it always has been used for that end. But let me just suggest that there are two problems here. One is that almost all gun control people, want to aim their attention solely at innocent law abiding gun owners. That's who they want to restrict. That's who they want to take guns away from. They are actually not all that in favor of enforcing the existing gun laws that we have against people who violate gun laws. Because in fact, they will argue that these have racially disparate impacts on certain communities. There are places in which gun prosecutions by progressive prosecutors are not taking place. People are given bail or no bail. They're just sent back out into the streets. That mere possession of illegal possession of a gun, I'd say, is not going to be punished. And so we have a problem when punishing a gun crime is being ameliorated. That is we're not punishing gun crimes. But what we are prepared to do is take guns away from people who want to protect themselves from gun crimes. And who are playing by the rules. I mean, by lawful rules. And who in the case of concealed carry permits in shallow-issue states like mine have to pass a background check myself before I'm allowed to conceal carry. Let's talk about the other kind of major cases. Maybe we can talk about have to do with religion and public school or K through 12 education, not necessarily public school. There were two cases decided this term. One had to do with a football coach who would volunteer, he would pray on the 50 yard line. I'm Randy as I don't know how familiar you are with the New Testament, but Jesus spends a not insignificant amount of time kind of bitching about people who pray on the street corner so that people might see them rather than actually have an indwelling I'm strictly an old Testament guy. That's I was assuming as much. But, you know, but so you have a football coach who is praying on the 50 yard line after football games, I guess I don't know if he prays after victories or only losses, but in he would, he would ask his players voluntarily by most accounts, like, you know, do you want to pray with me? That was ruled not to be problematic. And then in a case involving a main tuition program or rural students, there was a tuition program that they had started which would allow students to use that money to go to religious schools or public schools or private schools. And that was also seen as kosher if I can mix Abrahamic metaphors here. So, you know, where do we stand at the end of this term in terms of kind of religious freedom or educational freedom? I think as a general rule or as a general matter with this court and this composition, this court and composition is very interested in protecting the free exercise of religion, especially when it looks like religious observances are being discriminated against in favor of other kinds of things. And this is what we even saw during COVID. The only types of COVID regulations that the courts were prepared to invalidate were those which seemed to discriminate against gatherings for religious purposes while allowing gatherings for other purposes. So free exercise is of great interest to this court. At the same time, there has been a very severe scale back on what they think the scope of the establishment clause is. For many years, it's been thought that the establishment clause and the free exercise clause kind of clash because to the extent government allows free exercise, they then could be turned around and being accused of establishing a religion promoting religion. This clash I think is overstated. And what the Supreme Court is doing is they're pulling back on their establishment clause saying in the case of school vouchers, it is not an establishment of religion. If you have a voucher scheme for other schools, it's not against establishment of religion to also include religious schools. In fact, it violates free exercise to discriminate against religious schools if you have a general scheme like that. That's what you're seeing. And I think you're gonna see- And from a libertarian perspective, that's good, right? I mean, it expands the scope of individual choice-making. Yeah, I think that we would like to see alternatives to government schools set up. And part of that is to, and this is what Arizona I guess is poised to pass if they haven't passed it already, a system in which the money follows the student that students can take the $7,000 or whatever the state is paying towards education to whatever school they wish to take it to. Of course, there's issues advising by which schools are serious schools, but in principle, yeah. So I think, yes, this is an enumerated right that the conservatives on the court, a free exercise clause is enumerated right to free exercise of religion that the conservative justices are prepared to protect and they don't think that the establishment clause is implicated very often when they do. And let me just throw this one thing out. This is not something I have reached a conclusion about, but I am skeptical that the free, that the establishment clause was a privilege or immunity involved a privilege or immunity of citizenship that would have been protected by state law under the 14th amendment. When Jacob Howard introduced the 14th amendment into Senate, he was a senator, he was the sponsor of the bill in the Senate and he listed all the rights that he said were privileges or immunities as citizens in the United States. He first of all talked about unenumerated rights and then after that, he turned to all the, he says the ones that are in the constitution, he left off the establishment clause. And I think the reason might be that it wasn't an individual right at all. The establishment clause is a restriction on Congress's power and the national power to establish a national religion. It isn't an individual right. The privilege immunities clause protects individual rights, that isn't one. If that's true and the Supreme Court hasn't said that it's true and I don't think they will like the near future, if that's true, it means that there really is no establishment restrictions on states at all. And that would mean that free exercise clause would have to be doing all the work. And there is another decision that was made short of the Boston, nine to zero, kind of rare actually, that kind of unanimous decision saying that it was wrong for the city of Boston not to fly a Christian flag when it was flying a bunch of other kind of special interest flags. So, I mean, it does seem... Notice the discrimination part of that claim. You're gonna see that often. It's gonna be an anti-discrimination against religion claim. And that is founded in, for example, Justice Kennedy's views, in a previous case, I won't name the case, but it was the church of Lakumi Babalu'i, that's the name of the case. It's against the city of Hialeah. He said laws have to be general and neutral. And what they're finding is that they think these laws are not general and neutral. That means they have re-discriminating against religion. Right. And it seems at this point, religion has less force in life than it did certainly 30 years ago, or 40 years ago. There's an argument that what we're seeing in large part from the left is a religious movement. It doesn't involve a deity like the gods that the theistic move. It's not a theistic religion, but there's all kinds of religious aspects to the political correctness that we have to hew to or be condemned as heretics or blasphemous, blasphemes, if we say the wrong words. And so I'm not sure that religiosity has been reduced in this country, but I mean that we may be seeing a rise of an alternative religiosity. Sure, but organized religion. I mean, we're talking, Organized, well, they're mainline, Protestant and Catholic denominations, things like that seem to. Let's talk a little bit about... Actually, what did I just agree to? I said correct. Yeah, I mean, what... I think what you agree, or maybe what you agree, what I said was that the religious right is not as powerful as it was in 1985. Oh, I don't know. Organized religion does not play the same role. Yeah, I'm gonna say, I'm not gonna say yes or no to that question. I just don't know. Can we talk about, at the end of this term, which also is the end of Stephen Breyer's run as a Supreme Court justice, how would you summarize what the Roberts Court is up to? And does it even make sense to talk about it as the Roberts Court? I mean, even though he's the Chief Justice. Well, they're probably eventually gonna talk about the early Roberts Court when he was the swing vote and the later Roberts Court when he's the sixth vote, because I think it's a different court. These last few days should have taught us that a Roberts Court, in which there's a six to three conservative majority and Chief Justice Roberts is a conservative. Contrary, I mean, I'm a big critic of his, but I certainly believe he's a conservative. With a six to three conservative majority is a different kind of a court than with a five to three conservative majority of some kind. And so we have now, with the addition of Justice Barrett, entered a new era and we are now in the last five days, starting to realize or starting to begin to see what that era is going to look like. And we don't know, but we have this now, we have the data point now, and then we're gonna see where this is going to go. Do you, I mean, from a libertarian perspective, I mean, are you optimistic that this is going to lead to a restriction in the government, the size, scope and spending of government or in an increase in individual rights and liberty? How would you, we have a few weeks of data here, prognosticate. Well, one of the things we got from Justice Kennedy when he was the swimming boat was kind of a libertarian policy outcome driven court because Justice Kennedy did seem to favor individual liberty in a variety of ways, regardless of how that related to the constitution. And so with him as the swing vote, sometimes he'd vote with the conservatives and sometimes he'd vote with the progressives and we had what you could say generally on a policy grounds, libertarian friendly outcomes. He's gone and we have a different court now with different people who are swings, we don't know how they're gonna work. Now to say, a libertarian needs to think about whether how much do they like the original constitution and how much do they think adhering to the original constitution on balance is a good thing for liberty, even if it doesn't mean they get all the results they want from a particular judicial ruling. So for example, regardless of which side of the abortion question you're on, the outcome of jobs is at least supposed to be that this issue is gonna be returned to state legislatures in which you would get 50 state solutions. I mean, during COVID, we did have federalism operating. There were 50 state solutions and I ended up moving to Florida and where I am now a resident of the state of Florida because their policies were different than the policies in the District of Columbia. And so... This is a fascinating question because decentralization or dispersion of power, federalism, part of that is a process. It's a discovery process because different states will do different things and that might be good for individual liberty but it also can be really bad for individual liberty depending on what the results are. Right, and I think that's the reason why there is no quote libertarian view of this other than to think that the original scheme in the constitution has modified by the 14th amendment and other amendments constraining state power so that states may not violate the rights of their own citizens which is what the 14th amendment stops you from doing. That this is actually on balance good for liberty or what the court has referred to as ordered liberty because ordered liberty is not unlimited license to do whatever you feel like. It means you're constrained by the rights of others and it is the government's responsibility to protect the rights of others. And then the question is, do we want that done on a one size fits all basis at the federal level or do we want 50 state approaches to this where people not only can vote with their ballots but like me, they can vote with their feet and they can live in an area where they feel more comfortable. I live in central Virginia as well as Virginia as well as Florida. I feel very comfortable in central Virginia. I don't feel as comfortable in DC because of the other kind of progressives that are there. So it's where can you feel most comfortable and 50 states of federalism allows you to make that choice and that's... But there are limits on that, right? And this might be a good point to ask you about, you're a critic of majoritarianism and you've written considerably about the concept of judicial engagement which you say it's not the same thing as judicial activism whether it's coming from a liberal or a conservative or a libertarian position. Can you explain judicial engagement and then do you think this court is going to be strong on that concept of judicial engagement in the way that you would prefer to say? I don't think so. I mean, this is... I'm within the originalism movement and that puts me within the conservative legal movement even though I'm a libertarian it's part of a broader coalition. And we've won some intellectual victories within that movement. The one in particular is to follow the text of the Constitution, which is good. But we haven't won at all. And for example, the unenumerated rights issue is we haven't won that issue within the conservative legal movement. And so I think even all of the young judges that have been put on the courts of appeals during the Trump administration who are really, really good on originalism are not necessarily really, really good on judicial engagement to protect other liberties that we may have. And so I think it's a mixed bag. I prefer this regime. I prefer this regime to the regime that where originalism did not have a role to play. You referred back to something I said about when I was a law student taking Larry Tribe as my con law in my con law class. I basically was following along in the casebook and I would get to a part of the Constitution that I thought was really good, like the Ninth Amendment. Then I turned the page of the casebook and I would see the court said, well, that doesn't mean anything. Oh, and the commerce power, well, that's unlimited. And the right to keep our arms, well, there's one of those. And I would go to all these pages and by the time I was done with the course I was done with the Constitution. And I went on to be a criminal prosecutor which is what I went to law school to be a criminal lawyer. And then I became a contracts professor because what was the point of the Constitution? The court was going to ignore it. Well, the court doesn't really ignore it anymore. Now we have to fight about what it means. That's different than the fight about whether we should care what it means or not. And that's the fight we're in now. I think we're ahead, but I don't, by no means am I going to get everything I want. I mean, I'll give you the perfect example on the ground and I've already mentioned it, it's COVID. Under COVID, the only right or liberty that the judicial system as a whole was prepared to protect was the liberty to free exercise of religion. I'm for that. But there were other liberties, like the right to pursue a lawful occupation, the one that Damon writes about, that they were not at all interested in protecting. And so we had all these shutdowns. I have a complicated view about the constitutionality of that. But the point is, is that the judiciary was completely uninterested. The conservatives, justices, judges, lower court judges were completely uninterested in protecting us from an abusive COVID regime. And I think that's indicative of where they are and where they're gonna continue to be. Yeah, so that might be one of the big distinctions really and legally in the legal profession, but also beyond that between conservatives and libertarians. Yeah, I mean, well, let me just say, it goes back to what we started with the due process of law. If you think the due process of law is satisfied, if you have a fair trial and the law that is being used to prosecute you is passed by the requisite majority of both houses and signed into law by the governor or the president. If you think that's all the due process of law requires, which I think many conservatives do, that's not good enough. The due process of law also requires that the law be within the proper power of the legislature to enact. And that requires it to be within an enumerated power of Congress. Conservatives will go along with that. And also within the police power of the states, there needs to be a limit, a limited conception of what the police power of states are. It can't mean everything because everything is tyrannical. And so that's where the action is. That's something we don't have, we have not achieved victory about. We have, I'm in a small minority in the conservative legal movement on that position right there. And it's where I disagree with Justice Thomas and what he says about the due process clause. One of the outcomes of the past couple of weeks has people like Senator Elizabeth Warren, Representative Alexandria Ocasio-Cortez in the wake of the Dobs decision about abortion, said, this court is illegitimate. We have, certainly over the past 50 years- It sounds very insurrection-y to me. It's extremely. And what I was gonna say is over the past 50 years, we have seen a massive decline in trust and confidence in governmental institutions, both if you just ask people about government in general, but then when you break it down into the presidency, the House, the Congress, et cetera. The Supreme Court also, I was in 1981, according to Gallup, fully 46% had a great deal of confidence or a lot of confidence in the Supreme Court. Only 13% had very little confidence. You move forward now to 2021 and it's only 36% have a great deal of confidence or a lot of confidence in the Supreme Court. 21% have very little. Is the court becoming, you know, well, I guess, do you agree or do you find that the court is deemed less legitimate than it used to be? And if so, or regardless, I guess, is that a big problem when the Supreme Court loses its sense of legitimacy among the American people? Well, I mean, I don't have a lot of confidence in the court and I believe in the court. So I don't know how I would come out on that survey. I think these surveys are sketchy. I believe in an independent judiciary. I believe I'm against court packing. I testified in front of the presidential commission on the Supreme Court against court packing. And I even argued that it was unconstitutional, which has put me on the outer fringes there. So I support the court, but I don't necessarily have a high degree of confidence in them because I said I was so disappointed in the Supreme Court as in as a law student in the late 70s that I gave up on the constitution altogether. So I've come back. I have more confidence now than I did then, but that still puts me below 50% of confidence. I do think it's important that people respect the authority of the court. And I think most people do. I mean, most people, the people that are excited on both sides are people that are really focused on these things. They're the activist class. Most generally people, the people that were just working here around my yard, putting mulch, we had new mulch being shoveled out as I've been talking to you. I'm sure they have as much respect for the Supreme Court as they ever had, and I've served them that it's pretty high. And they just don't follow every twist and turn this way. I think it's really dangerous, however, that people who don't like the Supreme Court, how they're ruling now, but love the Supreme Court when they were ruling for them. They love judicial supremacy even when they had the power and now hate it and think it's illegitimate. I think there's a big problem with people like that, undermining, working to undermine the legitimacy of an institution. Is there anything the court can do to inspire more confidence among kind of activist people or is that just kind of a lost cause? Well, I can tell you one thing that they shouldn't do and that is to try to pursue legitimacy by doing what the activist people want them to do. I think that is a recipe for illegitimacy. I think what Justice Roberts did in the Chief Justice Roberts did in the healthcare case where he was viewed as succumbing to pressure being brought to bear on him. After oral argument, I think that to the extent that that is what people perceived him as having done but bent to political opposition, undermine the legitimacy of the court and in the course of trying to pursue the preservation of the legitimacy of the court. So I think that's a big mistake. I just think they just need to do their job. What do you think about the leak of Alito's opinion of the draft opinion, which I guess we, there's an investigation going on but we haven't heard anything about who done it. Do you think that, I mean, is it a bad thing that these drafts get leaked? And then is it a, will it become more of an issue depending on who leaked it for what ends? Well, it's absolutely a terrible thing. They need to be able to deliberate with each other and to exchange drafts without having a leak that was designed to bring public pressure to bear on how they're going to rule before they actually rule. Remember that plus the threats to their physical safety were being made against justices who had not yet ruled until the ruling was announced on Friday, it wasn't official. It didn't matter what the vote was. It didn't matter what the opinion thread until they announced it to the public, they could always change their vote. And if one of the justices had been assassinated and we had, that would have changed the outcome of the case. It would have been a, it would have been a four to four case or it'd have been, I don't know what Chief Justice Roberts would have done, but it would have, it could have changed the outcome of the case. This is horrible. This is terrible. It should be condemned in no uncertain terms and it hasn't been condemned in no uncertain term. We have an administration who has, we added at this kind of pressure being put on a court that is not supposed to be responding to this kind of action in the streets. You know, it's kind of in the background but the attorney general is Merrick Garland who was put up as a Supreme Court judge or was going to be nominated by Barack Obama. He was nominated. He was nominated, but there was never a confirmation hearing partly because of Mitch McConnell, you know, kind of working various Senate kind of processes which are legitimate or, you know, which are lawful but, you know, are kind of sketchy, I think. Is it, does that kind of machination lead to a politicization or a drain of confidence in the court not giving presidents their, you know, their shot at confirming something? There has been a downward spiral in the judicial nominations process that goes back at least as far as Robert Fork but, you know, it might have gone back farther. And everybody, both sides have a narrative they want to push about how it's the other side's fault. I think I know whose fault it is. I'm one, you know, I think it is the other side's fault. Whoever the other side of me is, right? I think it's their fault. But nevertheless, this is nothing new and it's not good. And every move that the other side makes seems to be get another move as we go into a down, continue into a downward spiral. And that is part of the polarized area, polarized area in which we live. Let me pull back, there's a bigger picture that you need to see here, I think, Nick. And that is that as long as there was an overall consensus amongst Republicans and Democrats, what we might call the post new deal consensus about what the role of the courts were. Then the judicial nominations process could be conducted solely on the basis of what you might call qualifications or how smart you are, where you went to school, how good a lawyer you were, what's your judicial temperament going to be? Do you seem to be corrupt because you're in the pocket of somebody? You didn't have to think about how to interpret the Constitution as part of that because everybody kind of agreed. But what happened was we had an intellectual movement which is called the conservative legal movement. It was part of the overall rise of the conservative movement of which libertarians were a part, whether they liked it or not. And as a result of that conservative legal movement challenging the way the courts were interpreting the Constitution at a fundamental level. This is the originalism versus non-originalism challenge. When that started happening, it made the selection of judges political because one party started to align with one approach. The other party started to align with the other approach and they each party started to try to advance their side by the political means at their disposal, political presidents nominating a political Senate approving. And so it is the polarization of the parties which I think is actually beneficial because we have one side that I think is more right than the other side about how the Constitution should be interpreted. It's the polarization of the parties that's led to the polarization of the process. And so it's unavoidable. It's unavoidable. And the only way it'll ever be resolved is if there's any kind of new consensus that's reached that will then cause that to fall out and we can just focus on how smart you are where you went to school and what your experience was. Do you have, what might be the type of event or process that would lead to that building of a new consensus? I haven't, I really don't know. It's a good question. It's a fair question. I would like to thank, for example, that if progressives find that they have lost their ability to command a national majority of the kind that they can ram a one size fits all solution down our throats. And the conservatives seem poised to be able to do that. Conservative Republicans seem poised to be able to do that at the national level that in fact, progressives could rethink their opposition to federalism and rethink their opposition to limits on national power and join forces with those of us who are already there to preserve our federalism that the constitution makes, limited federal powers makes possible. So I would think it's political defeats of a certain kind as opposed to political successes that might give rise to people moving intellectually. This could be like a CUNY and paradigm analysis where things don't change until a new generation comes along because the previous generation just has their priors just too firmly embedded within their brain. And it could be that conservatives now are sensing they have a six to three Supreme Court majority which is not going anywhere and they're about to win big in the midterms they might start feeling really flush with success. Well, we've seen, this is another segment this is another show we can do. We've seen the rise of so-called common good constitutionalism on the right from people like Harvard professor Adrian Vermeul and others who are arguing to throw jettison originalism and just go for conservative results. Now, and he said it quite nakedly. He cites, in his Atlantic article which he announces this position publicly his book is different, but in the Atlantic piece he cites Tushnet's article against defensive crouch of liberalism and says, now we have the court we should do what Tushnet said the progressives should do and it turns out they didn't get the court. So you're seeing, you're gonna see this on the right and the people who are gonna be squeezed in the middle are people like me who believe in following the constitution, the original meeting of the constitution where it leads to conservative results and also where it leads to liberal or progressive results. And maybe when they see this threat from the right as I think some progresses maybe are starting to feel like maybe they have more to fear from a conservative conservative court than from an originalist conservative court that maybe if you think you don't like conservative originalism, how would you really like conservative non-originalism? That might get people towards an originalist view in the middle. Because that conservative non-originalism it's majoritarianism run rampant. Well, it's or it's whatever the courts decide to do it's the war on court only of the right. Yeah. Is that what you want? No, I certainly don't but about that generational question. You know, there's been a lot of talk about the right left kind of splits on the court and kind of conservative justices having a commanding majority. I at least try to push this because I was raised Catholic. There's a lot of people on the Supreme Court which was once famously antagonistic towards Catholics. You know, it's everybody on the court practically was raised or is a Catholic but there's a generational issue. You know, how important is it that, you know the people who are I guess, you know under 60 or under 55 are they regardless of where they end up, you know ideologically are they of a common mind in a way that we should be taking seriously and starting to map out what that means for the Supreme Court. Well, I know a lot of the judges that were put on the bench during the Trump administration, they're all young. I mean, compared to me, they're really young. It's fact, when I'm in a room full of court of appeals judges, I feel like I'm teaching a law school class because I'm so much older. I'm the oldest person in the room by a law. How old are you? I'm 70, I turned 70 this year. So, and so it's like remarkable to see these bright young judges who I very much like. So you have to think about, well, what's their mindset? And when I was talking earlier about where we've come and where we have income, that's who I was talking about. I wasn't so much talking about the justices. I was talking about the lower court judges. We had, you know, in terms of judicial engagement, you know, we have judges who are prepared to be engaged in enforcing the original meaning of the text of the constitution as they understand it. They may be wrong in their understanding, but that's how they're, but they are still not with us on the role that unenumerated rights should play in doing that. And so they're still looking for, they're still skeptics on the 9th Amendment. They're skeptics on the privileges or immunities clause because that's not in their DNA. So half of the battle has been won with them or a part of them, and the other part hasn't been, and I don't expect them to change. They're young, but I still don't expect them, they're still old enough to be court of appeals judges. So I mean, they're like in their 40s or 50s. I don't expect them to change their minds. And so that's the mindset that we're gonna have to be dealing with for decades to come. Next, in the next Supreme Court session, Katani Brown Jackson will be on the court. Will she, I believe when she was confirmed, you wrote about how she and a couple of liberal judges or democratic judges, you know, actually are in the originalist camp now, even if they don't talk about it in those terms because they look at the text and the meaning of it at the time of adoption of laws or amendments. It's close, I made the opposite point. Okay, so it's very close. It's just a very, no, it was diametrically wrong, so. Yeah, but it was actually knowingly, yeah, very close. And that is that I said before she was confirmed, A was before she was confirmed. It was actually the day, the week she testified is that she talked originalism. That the position that when repeatedly asked about her approach to constitutional interpretation, she not only voiced the originalist position, but she voiced the public meaning originalist position to which I adhere. Amongst all the other competing originalist foods. And not only did she do it repeatedly, but she did it obviously having been prepared to do it. I'm not saying it's not her own views, but I'm saying that she obviously, when the White House was prepping her and they have murder boards and all the rest, that obviously they went, they did this. They were prepping her on this question and the White House Council's office was fine, was okay with her basically asserting that she was an originalist when it came to the text of the constitution. So that was remarkable. I thought sociologically that was huge. What I didn't claim, although I was accused of having been naive about this, I didn't necessarily claim that she would be, she would actually be an originalist when she's on the bench. I don't know what she's going to do, but I don't have any great confidence in that. I mean, I don't think some of the conservative originalists are always originalists on the bench either, for that matter. I mean, Justice Alito, who I respect enormously, has never written, unless you consider the Dobbs opinion to be an originalist opinion, which some people do, and it may be closer to one than I originally thought. He's never written an originalist opinion before. He's always written a doctrinalist opinion that came out in a conservative way. And I think his opinions are really worth studying and they're persuasive in many cases, but he hasn't, it's Justice Thomas who's been doing originalist opinions and Justice Scalia before him. At the same time. So I don't know what she's going to do on the court. I thought what was significant historically is that after 30 years of no Republican judge being willing to call themselves an originalist or identify that, now we have a progressive, a young progressive judge who is basically defending herself by asserting originalism. That was significant. It means that we in the originalist movement have been winning that argument. That's two final points or questions. One, Ilya Shapiro was going to join you at Georgetown Law because of a tweet having to do with Katani Brown Jackson. He's not coming to Georgetown Law. How do you feel about the way that his case was handled and his ultimate decision not to join the faculty? Well, it was a travesty, which I have been intimately living with every day since it happened in January or February. His original start date, I think was supposed to be February 1st. And so I've been living with this issue. I mean, I've only been free of this issue now for the last couple of weeks. Otherwise I've been living it. I've lost a lot of sleep about it because I thought he was being treated great with quite unfairly by my Dean who I actually am beholden to. I wouldn't have a center for the Constitution were it not for my Dean. And he's very supportive of me. And yet I thought he didn't act correctly in this good circumstance and he knows I think that. And I thought that, but what was even worse was the administration, which decided to engage in a four month investigation to yield the conclusion that they had no jurisdiction because the tweet happened before he joined the faculty, before he joined the school. And they could have figured that out in a week I think or it didn't take them four months to figure it out. They were clearly waiting, I think, for the students to leave campus before they announced this decision. But even more long-term consequences to me is that the reasoning of the investigators and committee was such that it meant that if you say something offensive to enough students or members of the community then that offensiveness will override Georgetown's protection of freedom of speech. Even though the protection of freedom of speech we have expressly says that we should be free to say things that others find offensive. The HR or non-discrimination overlay of that has essentially gutted our free speech protections. I no longer have the same free speech protections at Georgetown that I once had as a result of the way they adjudicated his case. And that's the reason why he quit. Because he knew that they basically had issued an opinion that was a slow-motion firing of him. That all he had to do was say one more thing that caused people to have offense and they already announced in advance that that would be enough. And so why stick around for that to happen? When the one more thing happens that's not gonna be any fun. So quit now before the one more thing has happened and get a better job, which is what he did. He's at the Manhattan Institute, which is a much better place for him to be than at Georgetown, but I'm still at Georgetown. And so that makes me concerned. Yeah, do you feel a serious chilling effect or does it actually embolden you to speak your mind more? There has always been a chilling effect if you're on the right in academia, if you're deemed to be on the right. And so I've always had to speak with that in mind. And of course it's gotten much worse. So yes, I guess I do feel a chilling effect. And I don't, but on the other hand, I don't know that it's going to affect anything. I don't think I will fail to say anything that I didn't formally say, but it's not as though I don't quite, I don't censor myself a little bit anyway. I mean, it's the reason why Twitter is bad for people because Twitter lets their inner id out and sometimes we don't wanna know what's in their inner id. In fact, most of the time I think we don't wanna know that. And so like everybody else in the public domain, I try to take care about how I present myself publicly. So there's always a bit of censorship that's going, self-censorship that's going on. But now I just think that, look, let's put it this way. Under my new arrangement with Georgetown, I no longer have to teach a required class. I teach electives only. If they told me I wouldn't be allowed to teach a required class, I would object to that. But I chose basically to teach electives only. And partly that makes me feel more comfortable because if I have students in my class who didn't choose to take me, they may be more likely to be gunning for me. And then the administration gives them a way to do that. Whereas if they're all people who have chosen to take me, it's either because they already kind of agree with me, although they may be surprised, or they just wanna hear an opposing view and many students are like that. And they also are surprised. And so I still feel like I can be comfortable in my teaching primarily because I'm not teaching a required class anymore. Do you feel, I mean, you've been teaching law for decades now, do you feel, is there a significant shift away? I mean, are students more open-minded or more curious than they used to be? Are they more activist and more, I don't know, kind of draconian and wanting to block or shut down speech or ideas that they don't approve of? Well, I think it's wrong to speak of all students because there's students that fall into at least two categories. Those who are just like they always were, who come to law school to learn and are open to being challenged, and view that as kind of exciting. And those that now wanna engage in political correctness, which is almost tame, but now it's been escalated to the cancel culture, they wanna engage in the cancel culture. And I've had to do battle with that segment of the Georgetown community for several years now. I've had three different, in addition to the Ilya Shapiro incident, there was an incident I became involved with when the Georgetown, when Justice Scalia died and the Dean issued a press release, the headline of which was Georgetown mourns the loss of Justice Scalia. Well, that gave rise to a huge outcry amongst some of our students. And I came to the defense of our conservative students, who I thought were being put upon in social media and other places because of that. And then the second one is one as a center for the, my center for the constitution invited Jeff Sessions to give a public address, because he wanted a venue in which he could speak about free speech on campus. And I invited him and we had another huge round of disputes that I was involved with. So I have been involved before with the cancel culture segment of the Georgetown community, which are both students and they're also faculty members as well. Do you feel it's getting worse? I think it has gotten worse in part. I don't know, because I don't do surveys and I don't know if students have a different approach than they used to, but I do think the administration has, by allowing essentially them free reign, they've encouraged them to do this more than they were before. I think you do have to have an administration that's prepared to say, you're entitled to your opinion, but we're not gonna take action. And again, this is all in the context of Georgetown as a private university. They have more room to kind of shut down speech than a publicly funded university perhaps, but it's a bad thing, isn't it? Well, Georgetown has an official free speech policy that was modeled after the University of Chicago, which is actually exemplary, but which has now been undercut by this. So they're kind of being fraudulent and advertising. They're saying, hey, we're a place of free speech, but then when you get there, not so well. As of a month ago, when we received the report that outlined what the position of the university was with respect to Ilya's tweet, we now realize, we now know we're living in a different regime than we did before. Final point, his name has come up a couple of times. Mark Tushnet, he is a former professor of law at Georgetown. You took his office as he retired. No, no, he moved on to Harvard Law School. I'm sorry. Well, you know what? Let's call that retirement. He went to a farm upstate, we'll just say, okay. Well, we could say he went to a better place. Yeah. In any case, Mark Tushnet. Is it the good place or the bad place? You have to episode by episode. That changes. It's the bad place. He went to the bad place. Or the worst place, maybe. The, you know, he, in a conversation I had with him about Clarence Thomas, he wrote a book about Clarence Thomas. He's a critic of Clarence Thomas, but he also said, you know, Clarence Thomas is working out a coherent consistent philosophy that he's not given enough credit for. But in a conversation with him, he said, you know, the Supreme Court, you know, it sometimes sits a little bit ahead of where the public is. Sometimes it's lagging. But generally speaking, it doesn't, you know, it more reveals where the American people are rather than kind of sets the direction or dictates the terms. We're now in a world of, you know, where it seems like six to three Supreme Court decisions moving in a conservative, broadly conservative direction are set. You know, is the Supreme Court, you know, is it way ahead of us? Is it way behind? Or, you know, is Tushnet kind of fundamentally correct that the Supreme Court, you know, more or less is kind of reflecting where we are as a society? I mean, he's kind of right. I mean, I'd have to think about what metric we would use to figure out who the American people are and what they're thinking about things, given the fact we have a very diverse country and people are thinking different things. And we are at loggerheads with each other now more than we have been since the 60s. Right. So in light of that, I don't know what you would necessarily say about the court. I mean, one way to look at it is sort of like looking at the race track ride at Disney World, where you get to steer a little to the right and a little to the left, but there's this metal strip in the middle that keeps you from going one way or the other too much. Maybe that's where the court is. It's a little to the right, it's a little to the left. And it isn't necessarily ahead or behind into any systematic way. I mean, sometime it really depends on the composition of the court. There is obviously a, the Supreme Court is what you would call a lagging indicator because the people of the age and accomplishment that get on the court are from a different generation than whoever's the young generation now. So there's always going to be a bit of a lag that way. And I think it's personally a healthy thing that the court can't change too much too fast. Although I would like it to change 100% in my direction, right? But so with the other side. I mean, as somebody who argued the race case, that seems like a century ago. And where is the federal, where is federal legislation recognizing where America is on questions, not just of medical marijuana, but recreational marijuana. Well, we got three votes. Yeah. We got Chief Justice Rehnquist, Justice Thomas and Justice O'Connor. So we beat the spread. Do you, I mean, in a more kind of sinister reading, the focus on the Supreme Court, one function that it might serve is to take pressure off of Congress to actually do things. Is that part of what's being revealed by the high drama surrounding Supreme Court decisions, which seem to be very amped up certainly in this term, that may not be the case, depending on what cases are being settled in the coming years. But is that, by talking about the Supreme Court, do we run the risk of really kind of focusing on the legislative branch, which seems to be very poorly administered these days? Yeah, I mean, it's really hard to talk about the Supreme Court in isolation from the rest of the federal government. You have the Congress, which has really deep internal problems associated with it. I would say almost especially in the House of Representatives, which has become a purely majoritarian institution run by leadership. I mean, it's actually majoritarian in the sense it's not majoritarian, it's the opposite. Leadership gets to decide what to do and their caucus has to support them. Whereas before there used to be things like amendments to bills and committees reports. And anyway, plus there's the administrative state. So everything gets offloaded by Congress to the administrative state. And that empowers the president as well as the administrative state to do all kinds of things. We keep coming up with one executive order after another executive order. And when asked whether this is legal or not, my response always has to be, well, I don't know, what law is he invoked? Because tell me the law, because chances are he's only done this because there's been a law that gave him the power to do something. Now I don't know what that law is, tell me what it was. And then it turns out there's three laws or two laws that he's invoking the powers of and they will say, what were those laws for? And is he really doing it? But Congress has sent, speaking of gun control, Congress has sent over to the executive branch one loaded firearm after another saying, here, you use these guns as you see fit. And then the president picks one up and decides to fire it and go, oh my God. I mean, generally speaking under our, schoolhouse rock way of looking at government, it's the Congress that's supposed to be making laws. And that's supposed to be democratic. That's supposed to be, and if they're not the only body, but they're at least one of the bodies and they have offloaded the making of law. So it's really hard to evaluate the Supreme court in a system where lawmaking is taking place in the executive branch and Congress has abdicated much of its responsibility. I mean, Congress is kind of now, they tried to, Republican majorities tried to say, dictate the outcome of Terry Shiva's life, a person in a persistent vegetative state. They are Terry Shiva now. A broadly speaking, and we'll end with this, when did you start teaching as a law professor? Like 1982. 1982. So let's use that as a benchmark. Do you feel like, and again, broadly speaking, from a libertarian perspective, do you feel like we're in a better place? Maybe not the good place, but when you take into account all of the different things, kind of run through all the spreadsheets and stuff, do you feel like the country is more libertarian, or is it less libertarian, or is that not quite the right way to think about how societies evolve and change? I am somewhat at a loss here because I think when you evaluate the culture, there's all kinds of things that are at stake besides the libertarian issues of individual liberty per se, like what am I allowed to do? There's also what kind of schools do our kids go to? What kind of education do they get? There is the issue of free speech, of course, but then there's the issue of what do private institutions, what are private institutions doing about speech? And Georgetown is a good example, right? You gotta be downbeat on that, right? And if certain very, very large companies start to take control of the organs of speech and think about Twitter or Facebook or other places, because of a lot of complicated variables, they are basically running our speech forums and they're so-called private, but then they're also not, they're acting like Georgetown does, that's a threat. So I mean, I'm currently writing a memoir about my life. As I turned 70, I felt it was time to get on the record where I've been and what I've done for the benefit of my grandchildren because otherwise they'll know or know, but my next book that I wanna work on after the memoir is done is gonna be called Real World Libertarianism and it's gonna be a rethinking of the model of libertarianism that I participated in developing as a student when I knew Murray Rothbard and Leonard Ligio and Ralph Raco and Ronald Hamaway and all the others. We were all involved in the Center for Libertarian Studies in New York in the 1970s when I was a law student. I was on the board of directors of that center, but that model which was developed then which libertarians have operated within for 50 years has really never been updated or refined. And I do think in light of the experience of the last 50 years, it does require some updating and refinement. And was that broadly speaking that the focus and the energy should be at the relationship of the individual to the state and that that's really what libertarianism is about and as opposed to this broader question of how does power actually get operated and enacted and that's what I mean, part of the job of the book is to try to figure it out because there's a number of different strains and I'm a theory guy and so I think I can do this but until I do it, I haven't done it yet. And so the whole point of writing a book, when I write a book, I don't write a book to write down what I already think. I write a book to discover what I think. And so I can't really answer your question. I have some theories, I have hypotheses about what it's really about. I think it might really be about the fact that the libertarian model was not constructed with states in mind at all, with governments and it's hypothesizes what would a government free world look like, what would be the best policy for no government at all is what it was formulated at. But once you introduce governments into that, the model doesn't necessarily tell you what you should do. So there is a, the model that we, that libertarians have carried in their head which I would call ideal world libertarianism runs up against reality and the model doesn't always work as it should. And so what is necessary I think is modifications to the model so that it ends up being real world libertarianism, which is what the title, my working title of the book is. How should libertarianism work in the world that we live in? As opposed to the model of liberty that libertarians like me, we're working very hard to develop in the 1960s and 70s. I joined in the 1970s into the 1980s, but it's been a long time since there's really been any rethinking of that model. Wow, that sounds great as well as the memoir. I've been talking with Randy Barnett of Georgetown Law School. Randy, thanks so much. Thank you, Nick.