The work of
The challenge to the individual mandate, the provision requiring nearly all Americans to obtain health insurance, has been raised before; David B. Rivkin Jr. and Lee A. Casey, both lawyers who served in Republican administrations, made the Commerce Clause critique in a Wall Street Journal opinion article in 1993, when Congress was debating President Bill Clinton’s health care initiative, and again in the fall of 2009.
Their argument prompted an online debate. Professor Barnett joined, remembering how another law professor “wrote a very snarky, no-serious-person-would-think-there’s-a-serious-challenge-here” post. He added, “That just sort of got my blood flowing.”
And on Barnett’s background:
In high school, Mr. Barnett said he was a “William F. Buckley conservative,” and president of the Student Council and his local Jewish youth group. Most of the town was Polish Catholic; Mr. Barnett was one of four Jews in his graduating class.
“I was sort of odd man out,” he said, “which does inspire people to be independent-minded.”
He discovered libertarianism as a student at Northwestern. Later, as a Harvard law student, he took a class in constitutional law from the liberal scholar Laurence H. Tribe, and found himself disenchanted with the Supreme Court’s interpretation of the Constitution. (Professor Tribe remembers him as “a very talented and creative student.”)
He became a prosecutor and later, a contracts professor. But a 1986 invitation to speak to the Federalist Society, then a fledgling group of conservative lawyers, ignited his interest in the Constitution. He developed a specialty in the Ninth Amendment, a favorite of libertarians, which says that rights not spelled out in the Constitution are “retained by the people.”