Author Archive: Randy Barnett

EVERY STATE FLAG IS WRONG, and here is why. For example:

Go home, Connecticut. You’re drunk. At least you say something that isn’t “Connecticut” but… ”He Who Transplanted, Sustains”? If that’s what you picked, what did you reject? “He Who Mulched, Will Probably Check For Aphids”?

RAND PAUL: Confederate Flag “Inescapably A Symbol Of Human Bondage And Slavery”

“There have been people who have used it for southern pride and heritage and all of that but really to, I think, to every African-American in the country it’s a symbolism of slavery to them and now it’s a symbol of murder for this young man and so I think it’s time to put it in a museum.”

CREATING GUN-FREE FREE-FIRE ZONES: Charleston shooting prompts gun-rights supporters to call for more concealed-carry at churches

He was a young gunman bent on shooting as many worshippers as possible, but Matthew J. Murray never got as far as Dylann Roof, the suspect in Wednesday’s South Carolina church massacre.

Murray had already shot and killed two people in the parking lot when he burst into the New Life Church in Colorado Springs. Before he could pull the trigger again, however, the 24-year-old shooter was gunned down by Jeanne Assam, a volunteer security guard with a concealed-carry permit.

That was eight years ago, but even though Ms. Assam was credited for saving as many as 100 lives that day, a dozen states continue to restrict the carrying of concealed firearms in churches — including South Carolina.

Just because the argument that fake “Gun Free Zones” invite crazed and evil killers by advertising the defenselessness of the persons therein is oft-repeated after each outrageous attack on a fake “Gun Free Zone” makes it no less valid. Increasing the risk for crazed or evil killers is likely to be a more effective response to mass shootings than eliminating offensive flags, as they are rarely so crazy that they can’t locate a nearby fake “Gun-Free Zone.” (For a recent exception, see the evil Garland Texas mass shooter wannabes.) But this assumes one truly cares about preventing rather than exploiting mass shootings.

DAMON ROOT: The Kelo Debacle Turns 10:

Looking back over the past 10 years, it’s clear that Kelo was a disaster on virtually every level…. Kelo was wrong the day it was decided 10 years ago today and it has only gotten more rancid with age. If any modern case deserves to be overruled by a future Court, Kelo is it.

And while you’re at it, buy and read Damon’s excellent book, Overruled: The Long War for Control of the U.S. Supreme Court in which he explains the current fight against the judicial philosophy of “deference” that gave us Kelo and other constitutional abominations in our history.


The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.

This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision.

Ilya Somin says more here about the ruling and why it is so important. And kudos to Stanford law professor Michael McConnell, who argued this case.

LEARN LIBERTY IN DC THIS SUMMER: I will be speaking at Cato University this summer in DC from July 26th-31st. My topics are:

  • Why the Declaration of Independence Was Right
  • The Modesty of Libertarianism
  • Our Republican Constitution

Other speakers include:

  • Senator Jeff Flake (R-AZ) will be delivering the dinner address on Wednesday, July 29 on Capitol Hill.
  • John Tierney, The New York Times
  • Amity Shlaes, Calvin Coolidge Presidential Foundation
  • Jeffrey Miron, Harvard University
  • Robert McDonald, United States Military Academy
  • Tom G. Palmer, Cato Institute

AVOID THE TUITION HIKE! This is your last chance to register for Cato University for only $995. This price covers all meals, receptions, lectures, materials, books, and evening events. This price will increase on June 26, so register today!

“THIS WAS THE DEPARTMENT OF JUSTICE TARGETING SPEECH BECAUSE IT COULD”:  DoJ’s Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought. Virginia posted on this earlier but it deserves a second link. Plus this reaction by Reason’s editor Nick Gillespie.

This episode invites pessimism. But Nick Gillespie suggests that it should encourage us, because it showed how difficult it has become for the government to get away with silencing us. “We’re in a better place in terms of free speech than we’ve ever been as a country,” he says, citing both culture and technology. “It’s harder and harder for the government to shut down the conversation.” Certainly things didn’t go the way the government hoped here.

The challenge is to use Reason’s fifteen days of enforced silence as a catalyst, not a deterrent. Technology is only as effective as the people who wield it. We need to be committed to watch for, examine, and report on abuses of power like these. More people need to tell their stories of encounters with it. “No one knows how often this happens, or who is the target,” said Gillespie, who emphasized that we ought to be worried about anyone getting a gag order, not just a professional journalist.

“Unless people speak up, and unless people repeat the story, we won’t have a good sense of how this power is abused.” We also need to resist the temptation to filter our vigilance through partisanship. Many people have responded to this story with comments about the Obama Administration, a purely fatuous reaction, as though Obama has time between his golf outings and Steve Wonder concerts to censor a small magazine — but the danger will remain no matter what flavor of politician is in charge. “Power is nonpartisan,” says Gillespie.

Yes, but the difference is that if a Republican administration did this, Reason would not be standing alone among its media brothers and sisters.

WHY THE “PLAN B” ADMINISTRATIVE FIXES TO OBAMACARE EXCHANGES ARE ILLEGAL:  A new Federalist Society white paper by Josh Blackman: The Legality of Executive Action after King v. Burwell:

This article will assess the legality of executive actions that the Administration may take after King v. Burwell to continue paying subsidies in these thirty-four states. I will not discuss the merits of the case, predict how the Court should construe the statute or IRS rule, or propose congressional modifications to the ACA.  Rather, this analysis is premised on potential administrative fixes HHS could employ following an adverse ruling in King v. Burwell.

There are two possible approaches HHS could take that would continue the payment of subsidies in some or all of the thirty-four states using the federally-facilitated exchange. First, HHS could unilaterally deem several of these states as having tacitly established an exchange, without the state’s subsequent cooperation. Specifically, HHS could construe the fact that fourteen states perform certain functions that overlap with the ACA—what is known as “plan management”—as evidence that they in fact intended to establish an exchange. This post-hoc recognition of an establishment would drastically alter the terms on which states accepted certain responsibilities. Each of the fourteen states at issue notified HHS that it was only performing certain limited functions, and expressly declined to establish a state-based exchange. Retroactively and unilaterally declaring that these states in fact established a state exchange would distort political accountability, and disregard the considered judgments of the sovereign states, in violation of the principles of federalism. If HHS issued this interim rule without notice and comment, litigation would likely immediately follow by the King plaintiffs and the states. These suits, however, would face an uphill battle to stop the unlawful payment of subsidies. The administration could also attempt to limit the judgment in King v. Burwell to the four named plaintiffs, but that effort to evade the Court’s judgment would be met with further litigation.

Second, HHS can streamline the process to fast-track the process for states seeking to establish an exchange. The threshold inquiry is whether a state has the appropriate authority to establish an exchange. The ACA requires that before a state can elect to establish an exchange, the state shall “adopt and have in effect . . . a state law or regulation that the Secretary determines implements the standards within the State.” Eighteen of the thirty-four states enacted the “Healthcare Freedom Act,” which would require an act of the legislature, or even a constitutional amendment, in order to allow the creation of an exchange. In the remaining exchanges, it is feasible that a governor’s executive order would satisfy the Secretary of HHS that the state has established an exchange. Even with this speculative authority, it is unlikely that the state would be able to complete all of the necessary steps to establish an exchange in 2015. However, a state could possibly deem the federally-facilitated exchange as state-established. This approach would be inconsistent with the text and history of the ACA, and would likely be challenged by further litigation.

A ruling against the federal government in King v. Burwell, even if stayed until the end of the tax year, would leave the Administration and the states with very limited options of how to respond quickly. Resorting to dubious administrative fixes to continue the payment of subsidies would invite an immediate court challenge. The path to amend the ACA must go through Congress.

This is not a blog post and does not argue the merits of King. It is a detailed and technical examination of what the statute says about the establishment of exchanges, made accessible to serious readers. Anyone covering this case in the press or blogosphere should read it before the spin begins.

Assuming, of course, that the Court in King holds that what the statute says actually matters.

I AM OLD ENOUGH TO REMEMBER ALL OF THESE: Seven Liberal Pieties That Only the Right Still Believes:

  1. The Right to Offend
  2. The Value of a Liberal Education
  3. Government Should Stay Out of the Bedroom
  4. Live and Let Live
  5. Support for Israel
  6. Support for Human Rights
  7. The Dignity of the Working Man

The irony is that the “liberals” of my youth won this culture war — then switched sides (or at least yielded the field to the Left)! It is almost enough to undermine the libertarian trope that the left and the right are equally objectionable, just in different ways.


Think of it as the rise of what you might call the “liberal right”: a lot of people upholding ideas that once upon a time would have made us liberals in good standing—yet finding that this gets us designated as right-wingers today. And the list above is just a start. I could (and in the future probably will) add other former liberal pieties like the value of wealth and prosperity, the rejection of genetic determinism, judging people based on the content of their character rather than the color of their skin, or the old-fashioned notion that putting on blackface is really offensive.

Read the whole thing.

NOT SURE DE BLASIO WOULD CONSIDER THIS TO BE A BUG: New York’s Attempted Requirement That Uber App Updates Gain Regulatory Approval Will Cede Control to China: “The DeBlasio administration in New York City, through its Taxi and Limousine Commission . . . intend[s] to exercise veto rights over the technology the world uses to interact with the global ridesharing service. They require notice to the Commission every time there’s an app update.”

 “We can still review their application change after the fact,” said Allan Fromberg, TLC spokesman. “If we see a problem we can still advise them and insist that they make any necessary changes.”

Gary Leff comments:

“[U]nder this model it’s actually China that wins the regulatory war, decisions they make following a Taxi and Limousine Commission model, would dictate how the business operates and interacts with consumers and drivers. Because the biggest market is China.”

STEVE MOORE: “Rand Paul overnight changed the dynamics of the Republican presidential race on Thursday when he released his Fair and Flat Tax plan.” It is a one-rated, 14.5 percent flat tax devised with help from Art Laffer, Steve Forbes, and Heritage’s Moore:

The 14.5 percent tax would apply to wages, salaries, capital gains, rents, and dividend income. The plan eliminates the estate tax, telephone taxes, Internet taxes, gift taxes and all customs and duties [while keeping the mortgage interest and charitable deductions].

This plan would take America from being one of the highest income tax rate nations in the world to the lowest. This would suck capital and jobs from the rest of the world almost immediately to these shores. America would move from a nation off-shoring jobs, to one that would start in-sourcing millions of them. It gives U.S. workers a fair advantage.

For low income and middle class families of four, the first $50,000 of income would be tax free. Moreover, because this plan eliminates the payroll tax withheld from worker paychecks, the average worker would with a $40,000 income would get a $3,000 take home pay raise. At a time of falling wages, that would be a big boost to middle class financial security.

Perhaps the strongest case for the Fair and Flat Tax is that it eliminates all of the special interest loopholes and carve-outs in the tax code. Tax lobbyists in Washington would become an endangered species — and it couldn’t happen to a nicer group of people. The richest one percent get the preponderance of the tax write-offs, so getting rid of the big deductions, would increase their taxable income while lowering the rate.

This plan is the essence of a fundamental principle of good and fair tax policy: broad base and low rates.

You make twice as much, you pay twice as much in taxes. You make three times as much, you pay three times as much in taxes. Simple, but…

CATO’S DAN MITCHELL IDENTIFIES THE CATCH:  “Senator Paul’s “business-activity tax” doesn’t allow a deduction for wages and salaries. This means, for all intents and purposes, that he is turning the corporate income tax into a value-added tax (VAT).”

MORE: Rand Paul and the VAT That Dare Not Speak Its Name.

So apparently you pay a 14.5% income tax PLUS a 14.5% sales tax on all you buy with your after tax dollars. A transparent national sales/consumption tax makes sense if you repeal the Sixteenth Amendment and abolish the IRS along with any need to report one’s income and activities to the government. But then it would have to be much higher than 14.5%.

Let the tax policy debate begin!

“MR. WORF, FIRE!”: The Story of the Most Daring Cliffhanger in Star Trek ‘Next Generation’ History:

Ron Moore, Jonathan Frakes and more reveal how writing themselves into a corner for “Best of Both Worlds” changed Trek forever: “All of us were quite thrilled they had the balls to leave Picard on the Borg cube.”

I remember watching this episode in first run and my whole family going, “Whoa” after this ending. The clip still gives me chills.

And it is also very cool to see Marina Sirtis after spending four days with her on a studio set at Riverside Stages in Sylmar California filming the courtroom scenes for Inalienable: The Movie, which was written by Walter Koenig. She was a hoot to talk with, constantly wanting to engage me in political debate (as did Koenig) and dishing some behind-the-scenes Star Trek cast stories.


“Obviously, the lessons of Eric Cantor’s humiliating loss have not resonated with Boehner, McCarthy, and Scalise,” Levin said. “The only solution is for Conservatives to husband their resources and target these three in the coming Republican primaries. Conservatives need to find serious candidates and raise funds nationwide to defeat them. Let them fight for their political careers as our response to their disgusting and pathetic behavior.”

Well, it would get their attention between now and November 2016.

THANKS GLENN FOR HAVING ME: It was an honor to be an Instapunditeer for a week, and a great distraction from grading exams. (But I probably would have posted more if I hadn’t been grading.) I don’t know how you do what you do, but keep on doing it for the country’s sake.

You can find me longer-form blogging on the Volokh Conspiracy. Or get the brand-new updated 2014 reasonably-priced paperback editions of my books, Restoring the Lost Constitution: The Presumption of Liberty, and The Structure of Liberty: Justice and the Rule of Law. Such a deal!


I am glad we know what we now know about the NSA’s domestic data seizure programs  But it is possibilities like this that keep me from praising Snowden or considering him a hero. There is much we don’t know, and likely never will as neither side has much incentive to tell the truth about this.

LEARNING ABOUT LIBERTY UNDER THE PALMS: Join me for the Cato Summer University at Rancho Bernardo.

I will be speaking on “Why the Declaration of Independence Was Right: Demystifying Natural Rights,” “The Modesty of ‘Radical’ Libertarianism,” and “Our Republican Constitution: Why Popular Sovereignty Requires the Judicial Protection of Human Rights.”

ANOTHER PROVISION OF THE “LOST CONSTITUTION”: Video of the Cato Institute panel on the Origination Clause challenge to the Obamacare individual mandate. The speakers provide an excellent exposition of the issues raised by this challenge to Obamacare, which is based on the fact that Article I, Section 7, Clause 1 provides:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

And yet, we all know that it was the Senate who wrote and first passed the Affordable Care Act. The government claims the ACA to have been a Senate “amendment” to a House tax measure that struck every single word of the House bill, including the title, retaining only the House bill number. Is this an “amendment”? If so, then the Clause has lost all constitutional function and, like other clauses, is now “lost.”

Nevertheless, while the Origination Clause argument has the virtue of being valid — which is where all constitutional analysis should start — the composition of the panel in the DC Circuit makes this litigation an uphill fight. Reportedly, Tim Sandefur‘s excellent oral argument last week was met with skepticism by the judges.

ANDREW MCCARTHY:  Why Lois Lerner Should Be Granted Immunity:

When officials prove unfit for government power, taking that power away is the highest public interest. Even if you’ve deluded yourself into thinking the Obama Justice Department would lift a finger to prosecute Lois Lerner, who cares if she ever sees the inside of a jail cell? What matters is laying bare the entirety of the scheme and finding out how high it goes: Who and what induced her to orchestrate the harassment of conservative groups? Why was the government’s fearsome tax agency placed in the service of the Democratic party’s political needs?

To get the answers to those questions, you need Ms. Lerner to testify. Instead, the House has wasted a full year chewing over a tough legal issue that, even if it were ultimately resolved in the Oversight Committee’s favor, would not get her any closer to answering questions — at least not for a long time….

If the House really wants to get to the bottom of the IRS abuses, it is long past time to immunize Lerner. Let’s find out what she knows and advance the public’s knowledge of the facts. It will then be possible to determine which, if any, higher-ranking officials in the Obama administration were involved: Were they active participants? Nod-and-a-wink approvers? Unknowing, incidental beneficiaries of the inability of conservative groups to organize effectively?

As things stand right now, the congressional investigation is going nowhere. There is also good reason to doubt that it will ever go anywhere unless it is assigned to a select committee. This week’s contempt drama does not hide these stubborn facts.

Beats appointing a special prosecutor.

HE GETS IT: Great review by Matt Zwolinski of the new edition of my book, The Structure of Liberty: Justice and the Rule of Law:

When I first became a libertarian, I was strongly attracted to some version of natural rights theory. But critiques like those of David Friedman and G.A. Cohen caused me to question that commitment.

It was in the midst of this questioning that I first read The Structure of Liberty. I didn’t know it at the time, but one of Randy’s long-standing philosophical projects was the reconciliation of natural rights and consequentialist analyses. The Structure of Liberty represents the culmination of that research project, presenting a very useful analysis of natural rights as hypothetical imperatives, and integrating and extending Hayekian concerns about the use of knowledge with public choice concerns about the limitation of power into a novel, systematic libertarian theory.