Constitutional law expert says Trump didn't receive due process during 'strictly partisan' impeachment inquiry
Georgetown Law professor Randy Barnett joins Mark Levin to discuss constitutional law through the lens of impeachment.
This is a rush transcript from "Life, Liberty & Levin," February 9, 2020. This copy may not be in its final form and may be updated.
MARK LEVIN, HOST: Hello, America. I'm Mark Levin. This is "Life, Liberty & Levin."
Welcome back, Professor Randy Barnett. How are you, sir?
RANDY BARNETT, GEORGETOWN UNIVERSITY LAW SCHOOL:
So good to see you, Mark.
LEVIN: It's a great honor.
BARNETT: Here in the bunker.
LEVIN: The bunker.
BARNETT: Yes.
LEVIN: Well, we're good friends. We've been for a while. You are the Professor of Legal Theory at the Georgetown University Law School. You also teach Constitutional Law and Contracts. You're the Director of the Georgetown Center for the Constitution.
I think we need to do a post mortem. We need to do a wrap up of what this nation was dragged through the last half year or so, impeachment and an impeachment trial.
And I want to break this down in logical steps, because we still hear people saying, we're going to impeach again, and maybe again after that. We're going to keep digging and looking and so forth and so on.
The impeachment process that took place in the House of Representatives, do you feel it met the standards that the framers had in mind?
BARNETT: Absolutely not. Due process is a basic fundamental concept, and the impeachment process in the House lacked all due process, which means that the result of that investigation, the result of that process gave no one any confidence that they had actually uncovered the truth and given the President his opportunity to give his side of the story in that phase of the trial -- of that phase of the proceeding. And as a result, it was strictly partisan exercise.
LEVIN: When we talk about due process, we're not talking about what's in the Bill of Rights, because we know this isn't a criminal case and so forth.
But we're talking about what traditionally, in a civilized Western society is a process that allows the facts to come out and the accused to defend him or herself. Correct?
BARNETT: Right. The due process of law has two components. It's the due process of law and the due process part says there must be a reliable procedure that actually establishes that somebody actually committed the offense for which they're charged.
And the of-law part says it must be -- nobody can be deprived of life, liberty or property without -- except by a valid law -- it actually has to be a valid law, and just because the legislature tells you something, it doesn't make it a valid law.
So it's both guilt and innocence that must be assessed and a legal standard, an objective legal standard that you could have been on notice of in advance that also must have been violated. Those are the two aspects of the due process of law.
And it's a general fundamental principle that precedes the Fifth Amendment, and it precedes the 14th Amendment. Those amendments make reference to a long standing preexisting principle.
LEVIN: And that long standing preexisting principle is crucial as a bulwark against tyranny.
BARNETT: Tyranny and abuse of power. Tyranny and abuse of power. Any governmental power can be abused. It's ironic, they charged the President with abuse of power.
The impeachment power is another power that can be abused.
LEVIN: Was it?
BARNETT: I believe it was. It was abused because it was being used for partisan ends, strictly partisan ends and I would say electoral ends. I would say the end of influencing an upcoming election.
Everything that the President was charged with here is what the House actually did in formulating an impeachment proceeding, and you can establish that as it has long been established and as your readers -- as your viewers know, by all the calls for impeachment for this, for that, for the other thing.
From the day he was inaugurated, there's been calls for impeachment. Well, that goes to the mens rea, shall we say or the good faith of the House.
LEVIN: Mens rea.
BARNETT: Mens rea, good faith of the House in exercising a power that is unquestionably their power, the power to bring charges.
The question is, was that power abused?
LEVIN: And you think it was?
BARNETT: I do. I think had they given the President the opportunity to participate in all phases of the hearings, not the secret hearings, the hearings that were done in the skiff, in the secure room located in the House, if they had allowed his counsel to participate in that and to call witnesses, both to call witnesses and to cross examine witnesses.
As you know, Mark, as a lawyer, cross examination is one of the hallmarks of freedom. The ability to call your own witness, that's the right of confronting your accusers and also the right to call your own witnesses. Those were not done.
The President was not accorded any opportunity to participate until the very last minute when it had gone from the Intelligence Committee where all the work was being done to the Judiciary Committee where no work was done. And then he was invited to sit in at that point -- his lawyers.
But that is not due process and that is not a way you reach a conclusion that's going to satisfy someone who is not already convinced that the President is guilty of an impeachable offense.
LEVIN: Do you think this is why they cobbled together these very broad impeachment charges? It appears anytime the President wanted to defend the Office of the President or the Executive Branch against certain subpoenas for witnesses, like people who advise him on a confidential basis or certain documents, they would just add that to an impeachable offense list -- I mean, Adam Schiff basically said that's what they're doing.
Doesn't that do grave damage? We need this balance. Isn't it possible as you alluded to, that the legislature can be tyrannical?
BARNETT: Absolutely. The legislature can abuse power. That is one of the reasons we have judicial review. It is to ensure that the legislature has not exceeded its proper powers, as it did, for example, when it passed the Affordable Care Act pursuant to its commerce clause power.
LEVIN: Which you were intimately involved.
BARNETT: I was one of the persons that formulated the argument for why the individual mandate was unconstitutional because it exceeded Congress's power.
And the due process of law gives you the opportunity to go into court and have an independent judge decide whether who is right -- the individual citizen or Congress.
Congress is not above the law. Nobody is above the law.
In the case of impeachment, though, it's not justiciable. It's not something that the courts would get involved with other than to evaluate the merits of subpoenas let's say.
But with respect to what's an impeachable offense, that is not who checks the House. The institution that checks the House is the Senate. That's where you get review. Its Senate review instead of judicial review of whether what has happened in the House meets the standard of due process.
And that is exactly what I think persuaded a majority of the senators to vote the way they did, regardless of whether or not the President had misbehaved.
Clearly, the House had misbehaved and to create an incentive or a future precedent in which the House, anybody, no matter which party controls, can continue to act politically and abuse their impeachment power is something the Senate was charged with stopping, and I think that's what they did.
LEVIN: If they had a case of the President misbehaving, they didn't act like it was terribly a strong case for the reasons you say.
They didn't want to put it through the test. They didn't want to allow due process. They didn't want him to allow to challenge the evidence. They didn't want to allow his lawyers to be present at critical times. They didn't want to allow him to present his own witness.
BARNETT: That's a very key point. It's a very key point. If they were so confident in the merit of their case, they should not have been afraid of due process.
The fact that they ran from the adversary system in the House indicates that they only felt they would survive, they would get to the finish line, which meant impeachment to satisfy a political constituency by denying the White House, denying the President of the United States his opportunity to participate in that phase of the impeachment process.
It was a-tell as we say.
LEVIN: You know, the Andrew Johnson case. He was a pretty awful guy.
BARNETT: He was quite awful.
LEVIN: But he shouldn't have been impeached. At least, I don't think. And this Tenure of Office Act they passed purposely, the so-called Radical Republicans. Lincoln is assassinated. The Civil War is over. You have reconstruction period. It wasn't all that much into reconstruction. He was a Democrat. He was from the south, but he was supportive of the Union versus the Confederacy and that's one of the reasons --
BARNETT: He was what was called a war Democrat.
LEVIN: A war Democrat. But the House kind of set him up and so did the Senate, that is they passed a law and said, you can't fire your own Cabinet, you have to get our permission, which is absurd. Separation of power -- but that was the position. And he vetoed it. And then he fired his Secretary of War who he inherited from Lincoln.
And for that reason, among others, they impeached him. And there were 11 charges brought. They lost on three in the Senate, and then they took a recess and the other eight they dropped. Were the House Democrats trying to set up the President with all these subpoenas?
BARNETT: I think they were. I think this was -- I think it was a setup. Look, getting back to your earlier point, all Presidents have misbehaved. It's -- I can't -- it's hard to think of a President who hasn't misbehaved and misbehave in a serious way.
Think of FDR and what he did during the Second World War with respect to the Japanese-Americans, or other things that he did, refusing to take Jews who were trying to flee Europe. There's all kinds of misbehavior.
And I mean I hate to --
LEVIN: The IRS -- Presidents have used the F.B.I. and the C.I.A. They put journalists in prison. They've shut down newspapers.
BARNETT: Right.
LEVIN: Lincoln, habeas corpus, he suspended it. He didn't have the authority to do it. You can go on and on and on.
BARNETT: You can go on and on and on. But they have not been charged with impeachable offenses.
The remedy for all of that Presidential misbehavior has been exposure and the political process.
Impeachment is reserved for those situations in which the removal of the President is imperative. It's imperative.
And so far in our history, that hasn't proven to actually been the case. It has never carried today, except for Nixon, where we didn't actually put it to the test. But it is -- other than Nixon, it has never carried the day that the President needed to be removed.
And so this is just consistent with our history of presidential misconduct that is addressed politically and not addressed by removal. Because removal has the effect of in some sense disenfranchising the voters who have put that President in office.
And that's the reason why partisan impeachments are so significant, because if the motive force for removing the President are all the people that voted against him, then the people who voted for them are not going to credit that. It's going to undermine the legitimacy of impeachment.
And I'm afraid, Mark that that is really one of the big downsides, one of the big costs of this is another check on governmental power.
Impeachment has now been politicized to the point where people don't care about impeachment. They should. It should be a weapon that you can threaten Presidents with and get them to conform, because it's such a heavy, serious matter.
But if you're going to diminish its importance to this point, then a President is going to go, hey, impeach me. Go ahead. What do I care?
Well, that's not a positive development, and all of the checks and balances that we have built in, when they get in the way of a progressive political agenda. They need to go. The Senate needs to go. The Electoral College needs to go. The impeachment power is going to be used in such a way, it will also be gone.
One thing after -- every single structural barrier is going to be politicized to the point where all checks on power are actually going to be undermined.
LEVIN: I want to pursue this with you. What is this force? And why is this party -- I mean, in the aggregate -- why is this party trying to tear down the barriers that the Constitution sets to protect liberty? I want to ask you about that when we come back.
Ladies and gentlemen, don't forget you can join us on Levin TV most weeknights. Go to blazetv.com/mark, blazetv.com/mark to sign up or give us a call at 844-LEVIN-TV, 844 LEVIN-TV. We'll be right back.
(COMMERCIAL BREAK)
LEVIN: Professor Randy Barnett, you said something, I think very important at the end of the first segment, which was you started to pinpoint areas that are sort of under attack. The constitutional firewalls that are intended to do what?
Limits centralized government that prevent mobocracy at the same time. First of all, let me try it this way. What's the difference between a republic and a democracy?
BARNETT: Well, I was going to go there before you asked me that. I could just see that's where we were going.
LEVIN: Yes.
BARNETT: A democracy, which is something that the people that wrote the Constitution were opposed to, is the idea of pure majority rule.
That was originally the concept that motivated what was called republicanism before the framing of our Constitution. The states, at that point were basically majoritarian governments.
And then what had happened was the abuse of individual rights. And the Constitution was developed as a way of solving a problem with republicanism, and that is, it was majority rule.
And it was not only James Madison, who said this, but Governor Morris, and Roger Sherman, and one framer after another at the Philadelphia convention said, the ills we face are due to an excess of democracy. Meaning, majority rule.
And it didn't mean majority democracy in the sense of town halls or referenda. They were representative governments. So if you go to the dictionary and you look up Republic, they'll say representative democracy. That's not right, because they were that representative democracies, but they needed checks on the democratic process.
In other words, majority rule is not the solution to the problem of legitimacy. It is the problem for which our constitution and republicanism is the solution, the checks on power.
So the meaning of the word republicanism changed -- changed with the Constitution. And after that, all of the states copied it. And they put that kind of Republican form of government into action in each state.
LEVIN: And just to bring it down a little bit, so we have the Declaration. It talks about unalienable rights. So this is like a circle of protection for the individual in a civil society.
If you emphasize democracy, then your neighbors are voting on your property rights, on your free speech rights and so forth, and the framers were concerned about this sort of thing.
BARNETT: Madison said, put three people in a room and have the majority way and had let two people's interest be adverse to the third, would the third person be secure?
And then he said, it wouldn't make any difference if it's 3,000 people, would the 1,000 be secure? That was the way he put the point.
And democracy or republican -- republicanism at that point was the protection of individual rights. The next sentence of the Declaration is the one that we forget about.
It says, to secure these rights -- to secure these preexisting individual rights, governments are instituted among men deriving their just powers from the consent of the governed. Not all powers, not unlimited powers, but only their just powers.
Which powers? The powers necessary to secure the rights retained by the people. And that's what the Constitution was set up to do.
And there are all these structural constraints. They all get in the way -- they get in the way of what? They get in the way of majority rule, when in this case, the progressives think they have the majority. And so they must be stripped away.
I don't actually think that progressives today are all that much into democracy itself.
LEVIN: Well, let me -- let me -- this is what I wanted to ask you. This is an excellent point. I think they're in the democracy when they win.
BARNETT: Exactly.
LEVIN: But when they lose, they are into the administrative state, and other things, the permanent government that the President talks about, the swamp and so forth. They'll take it either way.
BARNETT: We both know people who work in the government, and who may be -- who are political appointees, who have been put into the government by a politically elected President. And what did they find when they get to all the agencies? They find resistance.
Not even the #Resistance we've got today, but just bare resistance. The government is run by them. It's run for them. And they just go into resistance mode if the other party comes in.
If their party comes in, then they're all -- everybody is happy. They all play well together.
But if the elected -- if the people say no, you know, we've had enough of that and now we want something different. You can't have that different. They won't let you have that.
LEVIN: So let's circle back to impeachment and some of these things you mentioned. Separation of powers. The battle that's taken place on impeachment -- in the impeachment -- in many respects, subpoenas and we're going to impeach you if you don't --
It is a separation of powers battle, why is that so important? The separation of powers?
BARNETT: Separation of powers was devised and actually it's Montesquieu, I mean, it was Locke who understood there were two separate functions of government: Judicial, legislative, executive. It was Montesquieu who said, yes, but they should be held in the hands of different people.
LEVIN: Was he influential during the Constitutional Convention?
BARNETT: Very influential, but Locke was, too but Montesquieu with respect to separation of powers was very influential.
And the idea is you should put power in the hands of not just separate functions, which is what they had in England, but separate people which they didn't have in England and that was going to be a way of checking power.
And the basic -- the simplest way of putting this, Mark is that government doesn't get to act on the individual, us, the people. We are the bosses, we are the sovereigns. They don't get to act on us unless all three branches concur.
If any one of those branches says no, by and large, it doesn't happen. If Congress says no, it never gets to the President or the judiciary.
If the President says no, it only gets further if Congress has a supermajority, but that protects the minority because only a minority can stop it.
And then only if those two concur do courts get a say, in whether it's within the constitutional powers of the government. All three must concur, and that's a three-part check. We call that redundancy.
Like on an airplane, you've got four engines, because of any one of them fails, the airplane will still stay aloft.
Well, right now, constitutionally, Mark, we're kind of operating on one engine. We're still flying, but a lot of the redundancy that's been built into our Constitution has been eliminated, one after another.
LEVIN: So this battle over separation of powers, even in the impeachment context is a crucially important battle. And I feel if the President of the United States had complied with every one of those subpoenas, give them every witness they wanted. They pulled back, but if he'd given them his Chief of Staff and all the rest, every document they wanted, every bank note they wanted, every this, every this. He would have destroyed the office of the presidency. Do you agree with me?
BARNETT: I do. I do. It's the President -- it is not the President, it's the presidency, and we have had Presidents and pretty much all Presidents at one time or another have ceded this power, their power in the interest of getting along politically with the other branches.
And that has, in the long run, you know, has not been a good thing. So yes, I think that he would have not been holding up his end of the bargain as President.
And I think he listened to his advisers who understood that and he followed their advice.
LEVIN: We'll be right back.
(COMMERCIAL BREAK)
AISHAH HASNIE, FOX NEWS CHANNEL CORRESPONDENT: Live from "America's News Headquarters," I'm Aishah Hasnie.
We are right now learning more about that attack that left two American soldiers dead and six others wounded in Afghanistan yesterday.
The Pentagon tells us the attack was carried out by an individual in an Afghan uniform armed with a machine gun. It happened during a meeting between U.S. Special Forces and local leaders in the eastern part of that country. No group has claimed responsibility yet, but officials are not ruling out ISIS.
The two dead Americans now identified as Javier Gutierrez of Texas and Antonio Rodriguez of New Mexico.
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I'm Aishah Hasnie, now back to LIFE, LIBERTY & LEVIN.
LEVIN: Professor Randy Barnett. Witnesses? Do you have to witnesses in the Senate? Does it depend on the circumstances? This became a big issue, even more than the Articles themselves at one point. What do you think about that?
BARNETT: There were witnesses in the Senate, the entire House record, including all the video testimony was made a part of the Senate record, and initially they weren't -- it wasn't actually and then McConnell said, oh, yes, yes, it will be. It was a good move.
All of that evidence was before the Senate. There was a record. There were witnesses. The debate in the Senate was over additional witnesses, more witnesses. Witnesses that the House didn't call, witnesses that they didn't subpoena. That's what the debate was over.
And in fact, if it comes to due process, the problem with the Senate hearings, I think it didn't work out this way, but the real defect in the Senate proceedings is that the President did not have the opportunity to cross examine the witnesses that the Senate considered. All of those video clips that they listened to, there was no cross examination by the White House.
There was some cross examination by House Republicans, but not by the White House, which is what the President was entitled to.
I think, had this moved forward with additional hearings and additional witnesses, the President would have been entitled under due process to cross examine all the witnesses that had already testified in the House and which were part of the record so they could have recalled any one of those witnesses, so they'd be subject to cross examination which was lacking in the process of witnesses that the Senate did consider.
LEVIN: Which would have dragged this thing on.
BARNETT: Yes.
LEVIN: Right into the election. But you're exactly right because they never had a whack at these other witnesses.
So even the witness testimony that was used was mostly from the President's perspective, clearly unchallenged witness testimony.
BARNETT: Well, it was -- in fairness, it was challenged by House Republicans.
LEVIN: Not by the President.
BARNETT: But not by the President.
LEVIN: They may have a different objective.
BARNETT: But many of the clips that the President's lawyer showed to the Senate were the clips that were resulting from House Republican cross examination, but I agree, due processes to the presidency, not to House Republicans.
So House Republicans did what they could, I commend them for that. But it's not the same. You know, for one thing, you know, President's counsel is going to be privy to information that would actually animate their defense in a way that congressional you know, Republicans don't know about.
And you saw that in the way that that the President's counsel presented their case in the Senate. You know, it was arguments that we hadn't necessarily heard before. That was the first time in fact, the country heard what the President's defense was to these charges.
LEVIN: And the point is also, only the President can defend the presidency from that perspective. As good as the House Republicans are, or maybe or were or what have you, as you point out, we hadn't heard from him through his counsel.
But that's a very interesting take, and I think a very, very important one. So all of these we need witnesses, new witnesses, when in fact, the witnesses that were used had never been challenged by the President's counsel.
BARNETT: And remember, at the time of the founding, there were no video testimonies. I mean, the only way that the Senate would ever hear the evidence that had been presented in the House was to hear it for themselves.
Technology has made that unnecessary or not less necessary, and in fact, during the Clinton impeachment process, video, transcripts were used there as well. They had some live witnesses, but those were all witnesses that had testified before.
And then now would be subject to presidential cross examination. One of the things that was interesting to me is the extent to which everybody quotes Hamilton, because of his writings in the Federalist Papers.
And one of the things they point about Hamilton, is you know, the importance of the impeachment process, and I thought about Hamilton.
Hamilton and Jefferson were at loggerheads. He was the Treasury Secretary. Jefferson was the Secretary of State, but Hamilton in many respects thought he was the Secretary of State, and he went around President Washington to give information to the British.
He was sympathetic to the British and the French who were at each other's necks. Jefferson was sympathetic to the French. Jefferson wound up resigning because Hamilton was interfering with foreign policy.
And Hamilton was actually giving confidential information in discussions he had had with the President and Jefferson to the British, and I'm sitting there saying, look how little history these people actually know.
They're waving around the Federalist Papers to quoting Hamilton. When Hamilton, if anything, shows interference one way or another, with foreign governments in our domestic affairs.
Does it concern you as a constitutional expert when you listen to some of these people go on and on about the Constitution or history or with their platitudes that they just don't know enough about what they're talking about?
BARNETT: Yes. But I have to say that I am reassured when I hear both sides arguing about what the founders thought about this or that.
Essentially, if hypocrisy is the homage that vise pays to virtue, situations like this is the homage that living constitutionalists pay to originalism.
LEVIN: How about stupidity?
BARNETT: I wouldn't say that.
LEVIN: A whole another --
BARNETT: I actually think --
LEVIN: From my perspective.
BARNETT: I think that this there wasn't stupidity manifested in either body. I think both bodies were acting political -- I mean, they were political -- there's political operations going on, political arguments going on.
But I like the idea. I personally like the idea that this entire exercise turned in to an exercise about what the founding generation thought impeachment was, I think this is good for us.
You didn't hear living -- where was living constitutionalism, Mark? Why?
LEVIN: Where was liberty?
BARNETT: Why don't --
LEVIN: I didn't hear either.
BARNETT: But why didn't the Democrats get up and say, look, we're not bound by what the founders thought about this. We are bound by what we today think is an impeachable offense. That would be your living constitutionalism position. Why didn't they do that on national television?
LEVIN: Let me try this on you. Because they didn't have to. They were actually doing it.
BARNETT: You mean by distorting?
LEVIN: Correct.
BARNETT: But that's okay, and then -- but they are arguing in terms -- in the correct terms. And then what happens? You negate that argument by a historical counterpoint.
LEVIN: We'll be right back.
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LEVIN: Professor Barnett, during the course of these debates, and the legal analyst, and the guests and everything out there. The Electoral College comes up. I'm not exactly sure why, but it does.
They now hate the Electoral College because when they lose on the left, they don't like the Electoral College, when they, you know, wrap the vote in California, whatever they say, hey, look at that, we actually won the election, but for the Electoral College. Why do we have an Electoral College?
BARNETT: Well, an Electoral College, the original purpose of the Electoral College isn't really all that important now.
The original purpose of it was that there's a problem with communication technology at the time of the founding, and there was serious question whether the whole country would be aware of just exactly who the good leaders were and who were not the good leaders?
So like everything else, you delegate this to especially selected representatives, who presumably are going to know more and they're going to go and they're going to figure out who do they vote for.
So this is like what representative government is about. That's the original -- that's the main original purpose of it. We don't need it for that anymore. But what it's turned into is, number one, a way of ensuring that all parts of the country get heard even the more sparsely populated parts which who may have different policy views and different values from others.
LEVIN: Why do we care if they are heard?
BARNETT: Because we are a republic, Mark, and not a democracy. I thought I thought we'd settle this.
And as a result, we need to care about the minority as well as the majority. And the Electoral College does protect that.
But as important, it protects against voter fraud. I mean, I grew up in Cook County, Illinois. I am used to -- I was very familiar with the --
LEVIN: You're a prosecutor.
BARNETT: I was a prosecutor. I was a Cook County State's Attorney. I was very used to Chicago politics, Chicago corruption, Illinois politics, Illinois corruption, which they say tipped the balance towards Kennedy in the 1960 election.
So the thing is, is that if you have a national popular vote, you can steal votes from anywhere and run the vote count up.
In fact, you'll never get finished with recounting, it would go on forever. The thing about localities, the Electoral College does create firewalls, and so that only individual states and you can run -- you can you can steal as many votes as you want from Chicago, and it's not going to give Illinois more electoral votes than they otherwise have to give.
A fantastic firewall against voter fraud and allows us to have outcomes of elections known within a few days, at worst of the election being held, otherwise, it would be like the Iowa caucuses where you might never know who the winner of a particular election was, because they're just going to keep counting and recounting.
LEVIN: But isn't there also this idea that you can't have the city's -- it's kind of your point -- you can't let the cities control the whole country. I mean, the city has got to participate, but as an example, the farmers. We can't eat without farmers.
And if they're not represented, just because they're more rural states, more rural areas, then their interests aren't represented in Congress either or different kinds of industries, commercial fishing industries.
And so my point is this. You can have the top 10 metropolitan areas in the country running the country, because you cease to be a country and you cease to have all that kind of diversity that's taking place.
BARNETT: And why not? Because you hear the coastal elites making fun of the rubes in the middle, making fun of them. What does that tell you? That tells you we're not all the same.
If they were all the same, if they had the same values, and if they had the same sensibilities as the coastal elitist had, the coastal elites would not be making fun of them. There's diversity here.
So you need to protect everyone and a republican form of government is needed to protect, We, the People, each and every one of us, not a majority of the people and not a privileged minority of the people, but We, the People, each and every one of us, and that's why each one of those parts of our structural Constitution supplemented by enumerated rights is how these -- the rights of each and every one of us are protected.
LEVIN: Doesn't it also help keep the peace? The Electoral College, in other words, my point is, everybody has a say. Now you may not -- it's not exactly the same say that may be weighted a little differently. But everyone participates.
You want to be President of the United States, you have to go to Iowa. You don't just camp out in five cities, something like that.
So people don't feel completely left out of the process.
BARNETT: There is a serious problem of alienation, if in fact, some people start to feel like they're under the heels of the others and then society can break down. Civility can break down especially when people are arguing against civility. Civility can and will break down.
LEVIN: So this movement and the Electoral College, they call this national vote movement or something to that effect.
BARNETT: Right, the National Popular Vote.
LEVIN: Is that constitutional? Close question, isn't it?
BARNETT: It really shouldn't be that close a question because it's a compact or agreement amongst the states and the Constitution requires that any compact among the states be consented to by Congress.
And the National Popular Vote Initiative that is being enacted by different states do not include congressional consent. So that right itself has a constitutional problem with it.
LEVIN: A lot of people want to change the Constitution without going through the processes, don't they? Like amending it or as you point out congressional approval, and so forth. And this is an alarm bell, too, I think.
Ladies and gentlemen, don't forget, you can join me most weeknights on Levin TV. You can go to blazetv.com/mark to sign up; blazetv.com/mark or give us a call at 844-LEVIN-TV, 844 LEVIN-TV. We'd love to have you. We'll be right back.
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LEVIN: Professor Randy Barnett, I'm going to hit what's considered an arcane point here, but this is a brilliant audience that enjoys the sort of thing we're discussing.
We have the Bill of Rights. We have the Ninth Amendment that's almost never discussed and I've argued that the Ninth Amendment really is the link back to the principles in the Declaration of Independence about the individual, unalienable rights, natural law, what's your take?
BARNETT: The Ninth Amendment says, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others, retained by the people.
Now, if you came down from Mars and you looked at that sentence, you would say, well, that's a pretty important sentence, wouldn't you? But it turns out, the courts have ignored it.
What is rights retained by the people? That's part of the problem. They don't know what they are. Rights retained by the people are rights that the people had before government is formed, that's retained. They retain them, and those are natural rights. The very same rights the Declaration refers to as unalienable rights to life, liberty, and the pursuit of happiness. You retain those rights.
And the very fact that you put some rights in the constitution like freedom of speech, which was a natural right, and trial by jury, which was not a natural right, but which Madison said was as important to secure liberty as any natural right, as any pre-existing right was.
The fact you put some in there doesn't mean that you don't have others and one of the dangers that The Federalist pointed out about adding a Bill of Rights to the Constitution was if you enumerate rights, later on, people are going to say, well, that's the only rights we have.
So Madison said, well, I've got a solution, here is, what was the precursor of what became the Ninth Amendment. The problem is that in some sense, the Federalists were right.
By enumerating some rights, it turns out, those are kind of the only rights we have. And his solution, which was the Ninth Amendment has basically been blown out of the water by the courts.
LEVIN: Why?
BARNETT: Because I think it was too radical a doctrine. And it stood in the way to the kind of overarching Federal power because the Ninth Amendment really was about Federal power, not state power.
That at one point in our history, progressives decided that this is what we needed, and we had to get rid of what they called the horse and buggy Constitution, which had all of these limitations and move into a brave new world in which we would have fully robust national power of the sort that they had for example, Europe.
LEVIN: In the end, can progressivism as truly understood in practice, coexist with constitutionalism?
BARNETT: I think a lot of it can at the state level, where states have more power, more general power than the Federal government has. But progressives have never been content. That's what Louis Brandeis was talking about when he said laboratories of experiment, he met laboratories of state regulation, laboratories of progressivism at the state level.
But progressives did not settle for that and they have not settled for that. Any policy they like has to be implemented at the national level and the problem that means is that you can't vote with your feet and vote from a state that has bad policies to a state that has better. You have to leave your country, once the country has adopted one of these policies and that is dangerous to liberty.
LEVIN: When you hear of Bernie Sanders or a lot of these folks going on about we're going to nationalize public utilities. We're going to nationalize healthcare. We're going to nationalize the student loans. I don't care about Supreme Court decisions. Is that permitted under the Constitution?
BARNETT: Well, for a variety of reasons that we can't really go into an interview like this.
LEVIN: Right.
BARNETT: It's not permitted by the Constitution. But as you say, you've got care about -- you're not caring -- you're putting aside Supreme Court decisions and Supreme Court decisions have taken us astray for a very long time.
LEVIN: And I want to get to the original intent of the framers of the Constitution. They would be appalled of a government having that sort of power, wouldn't they?
BARNETT: Well, they wanted a more powerful government than the Articles of Confederation gave us because that created a very enfeebled power, the national government. So they wanted a balance. They wanted -- they wanted to a compromise between an unlimited national power and an enfeebled national power.
And they thought they struck that balance with the enumerated powers that they've gave to the Federal government leaving all others powers to the states and the 10th Amendment is really kind of a truism that essentially points to the enumerated powers and says these are the powers of the national government, all the rest of the powers are in the states.
But then as we know, that became qualified by the 14th, the 13th and 14th and 15th Amendments, where it was discovered that states could themselves be the agents of tyranny. Slavery was a state law and there needed to be some Federal constraints on state power.
But we lack our more state constraints on Federal power. There ought to be -- both sides should be checking the other.
LEVIN: We'll be right back.
(COMMERCIAL BREAK)
LEVIN: Now, you've written a remarkable book, an accessible book with videos and so forth, "An Introduction of Constitutional Law: 100 Supreme Court Cases everyone should know."
I think this is crucially important. I've had you on my radio show. We've talked about it and so forth.
So people who really want to get into the Constitution, want to get into what the Supreme Court says about the Constitution. Is that why you wrote it?
BARNETT: Yes. And what the Supreme Court says about the Constitution is not the same as the Constitution. My book, "Restoring the Lost Constitution" is about that.
This is a book about what the Supreme Court has said, for better and worse and oftentimes for worse, and we basically identify the 100 Supreme Court cases that everyone should know.
We discussed each one of them in very, very short chapters, something that's adoptable to the general public, to homeschoolers, to college students, and we have a video that's multimedia for all the hundred -- we have 63 videos and when you buy the book, you get a scratch off code on the inside cover that gives you access to the 63 videos that we spent two years making that illustrate all of these cases with multimedia.
We have excerpts oral arguments, the audio. The justices do their own hand down statements. We have them reading their own opinions in their own words and pictures and graphs.
This makes Constitutional Law, not the Constitution so much, its Constitutional Law come alive and now you'll understand what Constitution - - you take -- you read this book and you'll know more than what most lawyers who graduated from Law School know about the Constitution.
LEVIN: And probably more than most House managers in the impeachment trial. "An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know." Very, very briefly. Was it tough to pick the 100?
BARNETT: Actually not. It was -- basically, these are the basic cases. And these are the cases that are in 80 to 90 percent of all Constitutional Law courses.
LEVIN: A lot of conservatives and libertarians believe in originalism. In one sentence, what's originalism?
BARNETT: Originalism is the view that the meaning of the Constitution should remain the same until it's properly changed by amendment. That's all it is.
And there's another sentence which says why originalism? And that is the Constitution is not the law that governs us, Mark. The Constitution is the law that governs those who govern us, and they shouldn't be able to change the meaning of the law that governs them without going through the amendment process any more than you and I can change the laws that they make to govern us without going to the legislative process.
LEVIN: Beautifully put. It's been a pleasure. Thank you.
BARNETT: Thank you, Mark.
LEVIN: God bless you. See you next time on "Life, Liberty & Levin."
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