Professor Barnett - In his response, Professor Barnett emphasized that judicial restraint is an admirable ideal to pursue, and what it means is that judges should follow the law. However, the Constitution is a key facet of the law. In his writing Professor Barnett makes reference to the "Lost Constitution," which he considers the portions that have been "redacted" by the Supreme Court, such as the Privileges and Immunities Clause and the 9th Amendment. The meaning of these clauses does not invite judicial restraint. The fact is that the Constitution is there to restrict the democratic process, and judges are charged with the responsibility of protecting the Constitution. It is true that section 5 of the 14th Amendment allowed Congress to enforce the rights guaranteed in the Amendment by appropriate legislation, but the point of section 1 of the 14th Amendment was to empower the courts to prevent a future Congress from undoing the very rights that the Amendment had guaranteed.
Professor Rosen - In response to Professor Barnett's comment that Professor Rosen's speech could have been made at a lecture for the American Constitution Society, Professor Rosen expressed his view that many individuals with more liberal viewpoints have
recently tended toward accepting judicial restraint, including President Obama and others, even when this means a conflict with their views on social issues. Professor Rosen believes that now is a moment of truth for the Federalist Society, at a time when the conservative view exemplified by Justice Scalia and Judge Wilkinson conflicts with the libertarian view of the Tea Party and others, and strongly advocated an embrace of the conservative approach and corresponding judicial restraint.
Professor Rosen acknowledged that the Privileges and Immunities clause included unenumerated rights, but the Framers of the 14th Amendment assumed that these rights would still leave sufficient room for regulations that were necessary to serve the public interest. They also believed that these rights would not be enforced across the entire spectrum of cases. Professor Rosen was strongly critical of Professor Barnett's apparent endorsement of "free-floating rights" that, at the end of the day, have more to do with libertarian philosophy than they do with the text of the Constitution.
Questions:
Professors Barnett and Rosen responded to several interesting and intricate questions, and each passionate response to one portion of a question sparked a correspondingly passionate response from the opposite professor. It seemed clear that the two would have been content to debate the issue all night, and perhaps had indeed done so in the past, and the audience might have been happy to indulge them.
However, regrettably, there was only time for a few questions. Judge Livingston began with a question about the Constitutional basis for Professor Barnett's presumption of liberty, to which Professor Barnett posed the interesting inquiry of whether the presumption of liberty or the presumption of constitutionality is more consistent with the text of the Constitution, since neither is explicitly present.
To a question comparing gay marriage and healthcare as social contracts, Professor Rosen returned to the libertarian perspective that so many issues hinge on autonomy. He posed the hypothetical world where all security camera feeds were centralized and available online, and hypothesized that libertarians may yearn to strike this practice down on a similar free-floating and abstract autonomy right to the one implicated in these cases.
To a question about to what extent his argument for judicial restraint was specific to economic liberty, rather than simply a general argument, Professor Rosen admitted that he is generally skeptical of judicial review, not only in economic contexts. The courts are at their most legitimate when they have a textual peg to support their decisions. Professor Barnett countered that there are clear textual bases for unenumerated rights in the 9th and 14th Amendments, that are at least as clear as those present in the 1st Amendment. The unfortunate reality is that as soon as you begin to protect the freedom of speech you find yourself in the realm of constitutional construction. Your unfortunate choice is either to ignore the Constitution, or to do your best to enforce it. As a further counter, Professor Rosen insisted he was not saying unenumerated rights should never be enforced, but posed the question of when exactly the Framers embraced such an active view for judges.
The final question was a perceptive inquiry about the relevance of the Contract clause of the Constitution to this inquiry. Both Professors agreed that the Contract clause was relevant here. Professor Barnett emphasized that, given the existence of the Contracts clause and other Constitutional provisions, there is no reason to believe that economic freedom is any less deserving of protections than personal liberties, and in fact the Founders may have preferred the former to the latter, if they had been forced to make the choice. Professor Rosen said the courts should enforce the Contracts clause like every other clause, but to abstract from that to denying power over broccoli and healthcare is penumbral reasoning, just as abstract and indefensible as that widely denounced in cases like Roe v. Wade. To close, Professor Barnett accused Professor Rosen of a mischaracterization of his arguments regarding the health care legislation, and insisted his arguments against the legislation are based on Constitutional doctrine, not ephemeral rights of personal autonomy.
