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Randy Barnett on colleges and the constitution, scholars and students

The Griffin spoke with Randy Barnett, professor of law at Georgetown and renowned constitutional scholar, during his recent trip to Canisius. A recap of that trip, plus a brief background of Barnett, can be found on page 2.

Barnett has appeared on many political podcasts and writes regular op-eds; his political positions and legal theories are discussed in those. This being a college newspaper, The Griffin asked Barnett about the intersection of college and law as well as the relationship between scholars and their students.

(This interview has been edited for length and clarity.)

The Griffin: You attended Northwestern and Harvard, you’ve taught at Northwestern, Harvard, Penn, and Georgetown, and you recently wrote a book with Supreme Court justices in mind. Yet you also regularly write op-eds and you’ve written a constitutional law textbook for undergraduates. How do you adapt your arguments to different audiences, from Supreme Court justices to the general public?

Barnett: If you can communicate your ideas in a simple enough manner, so that a layperson could understand them, you can be more confident that someone who is supposed to be more sophisticated can also understand them. You’d be surprised at how difficult it is to communicate with the supposedly sophisticated people. So being able to translate ideas into their most simplest forms has a benefit even when you’re not talking to lay people.

And there’s a sense in which, if you can’t reduce your idea to a simple and understandable form, it’s a sign that maybe there’s something wrong with your idea. The best, most elegant ideas can be explained in simplified form even if there is a more technical dimension to them.

The Griffin: Is a college degree now necessary, like a high school degree used to be, to

make it in the world?

Barnett: Unfortunately a college degree is now being used as a credentialing/signaling device. It is a way of screening applicants for jobs when you are not in a position to make particularized judgements about people. It’s a lot easier to see, “this person has a degree and this person doesn’t.” Presumably if you get a college degree this means you’ve been vetted by all the people who’ve handed out grades in college and you have survived that vetting. And so, when someone is deciding whether to hire you or not, you’ve already been somewhat pre-approved or not by the person handing out the degree.

It’s not as though what you learn in college is necessarily necessary for what you do afterwards. It is this sorting mechanism. And I think it’s highly unfortunate. High school degrees used to have that quality. But then when there became a big push, particularly with the expansion of student loans, which fueled growth in colleges, which fueled a desire on the part of colleges to attract more students, it has become more and more necessary to go to college but college isn’t for everybody. It isn’t even helpful.

Society being structured the way it is, it’s not clear this is true, but it’d be better if society were structured in such a way that people could just go out and go into business, go into trades, which they could still do when I was young. Now, unfortunately, you can still do it, but it’s harder, you’re taking a bigger risk.

The Griffin: Speaking of student loans, does President Biden have the constitutional or statutory authority to cancel student loans?

Barnett: Well, it’d be statutory, not constitutional, and I don’t know the statutes in this area.

But I think it’s a terrible idea to cancel student loans to people that are some of the most affluent people in the country. The people that have the heaviest student debt are the people that have come out of medical or law school. They’re the people who are gonna have great earning capacity. And it’s really unfair to everybody else who has paid back their student loans.

On the other hand, I think this prolific availability of student loans has just fueled the cost of a college education. I mean the reason why it costs a fortune to go to college is because the money that has been subsidized in the course of federal student loans has just gone directly to the colleges, it doesn’t go to the students.

This is a college assistance program. And that’s the reason why administrators at colleges now outnumber faculty members and you have a big emphasis on physical plants and elaborate student unions and dorms. This is all being fueled by student money ostensibly through the student and into college coffers.

The Griffin: Don’t you think that’s the free market, though, because that’s what prospective students are demanding?

Barnett: No, it’s not the free market for the federal government to subsidize all of this. That is the opposite of the free market.

The Griffin: But the reason that the colleges have these student unions is that prospective students go there, they want these facilities.

Barnett: Oh yeah, for sure. I love staying at the Ritz-Carlton myself. [Amenities] are a great draw for students. I like the finer things in life as well. But the question is, who’s paying for it? And it’s really the taxpayers who are subsidizing this. At the very minimum, students should pay it back.

Should there be student loans in the first place? I think they’ve had an unfortunate effect on making college both essentially too popular for the good of many students who probably don’t need to go to college and also way too expensive for people who should go to college.

Once you have freely taken on this debt, whether the taxpayers are holding it or not, I think you should pay the price. There’s no particular urgency [to forgive student loans]. There’s been no showing that people who have student debt are not capable of paying it back.

The Griffin: The Supreme Court is soon going to test some cases from Harvard and North Carolina about affirmative action. Does the Fourteenth Amendment’s Equal Protection Clause preclude affirmative action?

Barnett: It really depends on what is meant by affirmative action. The original meaning of the phrase affirmative action is that schools or employers should take affirmative action to try to identify qualified minority or women applicants who would otherwise be overlooked. This is to get over the inertia where people tend to prefer people like themselves.

This is all separate from the need to somehow alter or change standards that are being used across the board in order to reach certain results. What’s supposed to be illegal (according to civil rights laws) are quotas and set-asides. So the litigation the Supreme Court is taking up is whether Harvard has taken up admissions policies which adversely affect Asian Americans. I think the data suggests that they have. Affirmative action was initially supposed to be about resisting discrimination rather than implementing it.

The Griffin: You’ve co-authored books with younger scholars such as Josh Blackman and Evan Bernick. Is it intentional on your part to seek out younger scholars or is it just because they were the superior choice? Barnett: This is a great question. For most of my career I’ve worked only by myself because given the kind of theory work I do, I do legal theory. Whether it’s about contract law theory or constitutional law theory, I’m developing my theory and nobody else can develop my theory for me.

However, in recent years, I started taking on younger colleagues to be collaborators. So you ask a good question: what changed? Well, each one of these collaborations had its own explanation. One of the things that I think happened as a result of these is I think it has extended my productivity as a professor. I just had my 70th birthday; eventually other priorities start to intrude and you don’t quite want to do all of the work that you once did — the grunt, difficult work needed to do good scholarship.

I have been very, very fortunate for each of these projects to find people who are really quite different from each other, but who work in a very complementary way with my skillset. I don’t think I would do [these projects] without them, but nor could they do them without me, and so therefore I’ve extended my productivity beyond where I would have taken it myself by bringing them in. And as an unintended consequence I have sort of helped educate them. They know more about what we’re doing together than when we started because of working with me.

The Griffin: How do you want your views to be known and remembered: through your books or through your influence on other people?

Barnett: It’s a great question. It’s primarily through my books, secondarily through other people. I’m now writing a memoir. In writing the memoir I didn’t realize when I started writing it was going to be a memoir about my mentors: my dad, my grade school band instructor, high school debate coach, then my college philosophy professor. And after that it was other people. So I’ve ended up devoting chapters to each of my mentors.

So to answer your question, I do enjoy being a mentor to people the way other people were a mentor to me: it’s kind of the “pay it forward” idea. It’s not that that’s how I want to be remembered but I’m paying back the people who helped me by helping other people.

The Griffin: Which people do you want your ideas to influence: the Supreme Court and/or other scholars?

Barnett: Well, I’d love both of those things to happen but my happiness is not contingent on either of them happening. My goal is to leave the world a better place than I found it. How do I do that? By contributing to the sum of human knowledge. How do I do that? First of all, you have to come up with a contribution that advances human understanding. But just coming up with that is not enough; you have to publish it. By publishing it, it adds to the store of human knowledge that other people can access.

And that’s as far as I go. That is, I want to make a contribution by solving problems that other people have not been able to solve. That is an improvement on the present way of thinking, then I want to publish it so that anyone else who is interested will have access to it. And then when I’m all done with that, the world will be a better place than when I found it.

If, in addition to that, these ideas become influential, either because they influenced a younger generation or they influenced the Supreme Court — and my ideas have become somewhat influential, though I don’t know how much — that’s a bonus.

If people have a grandiose goal that they are unlikely to achieve, they are likely to get discouraged and give up. If they have a goal that’s achievable, nobody can stop you from achieving it, then you keep going. And if you do that long enough, you might get the grandiose goals too.

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