The Making of a Libertarian, Contrarian, Nonobservant, but Self-Identified Jew

April 10

Yair Rosenberg has a nice article in Tablet, ‘These Ideas Haunt You’: At Chicago Conference, Scholars Link Lawyering With Jewishness, reporting on a conference at which I spoke last week on Judaism and Constitutional Law: People of the Book. The symposium was organized by DePaul’s Center for Jewish Law & Judaic Studies (JLJS)  at the DePaul University College of Law. Rosenberg’s article summarizes pretty accurately the talks by Jack Balkin (Yale), Richard Primus (Michigan), Eugene Kontorovich (Northwestern), and me on how Judaism affected our approaches to the Constitution. I recommend the article’s summary of the talks by Balkin, Primus, and Kontorovich. Here is his summary of mine:

Randy Barnett, a professor of legal theory at Georgetown and director of its Center for the Constitution, is known for many things, but being Jewish is not one of them. He has been called a “rock star” in the libertarian world, and in 2012, the New York Times dubbed him the “godfather” of the constitutional challenge to President Obama’s health care reform. But few are aware that Barnett traces much of his political and constitutional outlook to his Jewish background.

“A typical reaction I get from academics, those who have known me for a very long time, is that they didn’t know that I was Jewish,” Barnett told the conference. In fact, he almost didn’t get invited to the event, because the organizers didn’t know either, until a non-Jewish academic clued them in. Part of the confusion no doubt stems from Barnett’s last name, which was changed from “Kanefsky” at some point after his grandfather emigrated from Russia in the 19th century.

But another reason many mistake Barnett’s background is his center-right libertarian philosophy, which is largely at odds with the prevailing liberal outlook of most American Jews. “The stances that I take both politically and constitutionally,” Barnett said, “they don’t really associate with the Jewish position.” These include his advocacy for states’ rights over a stronger federal government, and for causes like gun rights. Yet for the Chicago native and former prosecutor, these positions are a natural outgrowth of his Jewish upbringing.

Barnett’s father, a strongly identified Jewish atheist, took the lesson of the Holocaust to be that individual rights needed to be protected against the tyranny of the majority, which could easily turn against despised groups like the Jews. For him and his son, the liberties guaranteed by the Constitution made the United States a “promised land” for Jews, who were protected by its curtailment of state power. And as one of four Jews in his high school—“where anti-Semitism was common and not all that well concealed,” he said—Barnett learned early to distrust the wisdom of the crowd. (At the time, he was even “highly skeptical” of Zionism, popular among his Jewish peers, which he thought was “a really bad idea to get all the Jews in one place where they could be more easily exterminated.”)

Today, Barnett sees his libertarian advocacy—with its emphasis on “locking in” constitutional rights—as an effort to “preserve the form of government that made the U.S. a haven for me and for my family,” especially “as the world is now shrinking for Jews” with the rise of global anti-Semitism. What we have in America, he cautioned the conference attendees, “is not to be taken for granted.”

You can download and read my whole essay (which is only 4 pages), The Making of a Libertarian, Contrarian, Nonobservant, but Self-Identified Jew here.  And, for those who missed it, Rosenberg had a nice profile of Eugene Volokh and the Conspiracy in Tablet, The Volokh Conspiracy Is Out To Get You—And Everyone in America.

Finally, at the symposium we were told that DePaul’s Center for Jewish Law & Judaic Studies would soon be going out of business due to lack of funding. They don’t need much to keep going — much less than $100K per year. If you, or someone you know, might be interesting in becoming a benefactor, contact one of the Center’s co-directors Professor Steven Resnicoff or Professor Roberta Kwall. It would be a mitzvah.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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Dale Carpenter | April 10