Barnett has also done work on the theory of the United States Constitution, culminating in his books
Restoring the Lost Constitution and
Our Republican Constitution. He argues for an
originalist theory of
constitutional interpretation and for constitutional construction based on a
presumption of liberty, not
popular sovereignty. Barnett also focuses on the history and original meaning of the
Second and
Ninth Amendments to the United States Constitution. He has advanced the Standard Model interpretation that the Second Amendment protects an individual's right to bear arms, subject to federal regulation under Congress's power to organize the militia in
Article I, Section 8 of the Constitution.
Ninth Amendment Barnett is a proponent of the view that the
Ninth Amendment's rights "retained by the people" should be vigorously enforced by the federal judiciary. In a 2006 article, Barnett wrote: Regarding what stature and force natural rights had before some of them were enumerated, Barnett says that federal courts did not have authority to enforce such rights against the states. He wrote in the same 2006 article: A related issue is whether the original unamended Constitution gave federal courts authority to enforce unenumerated natural rights against congressional regulation of the federal district. Barnett has indicated that federal courts had such authority and that enumerated rights "had the same stature and force" in the district even before they were enumerated. He has indicated that the case of
Bolling v. Sharpe (dealing with integration of public schools in the
District of Columbia) is hard to justify textually from the Constitution, and if it were to be overturned, Congress would create more laws desegregating the district, which would be justified in his view of the Constitution. The question of what constitutional rights citizens possessed in the federal district has ramifications for the meaning of the
Privileges or Immunities Clause of the Fourteenth Amendment. In 2003, Barnett wrote: If no such federal constitutional protection of unenumerated rights existed in the federal district prior to the Fourteenth Amendment, only enumerated rights may have been extended by it.
Fourteenth Amendment With Evan Bernick, Barnett reviews the history and sources of the
Fourteenth Amendment as well as what he considers its misunderstanding and legal misuse in the Belknap Press title
The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. Barnett's reading of
Lysander Spooner was instrumental in changing his constitutional theory. In February 2025, Barnett co-authored an op-ed in the
New York Times with
Ilan Wurman where they argue that there is no right to
birthright citizenship for the children of
undocumented immigrants under the Fourteenth Amendment. They wrote the op-ed in defense of an executive order by President
Donald Trump. Other legal scholars challenged the op-ed. Jed Shugerman wrote that Barnett and Wurman offered very thin evidence for their interpretation of the Fourteenth Amendment; he asserted no evidence from the period of ratification was cited. Indeed, the only two pieces of evidence to which they could point, he asserted actually contradicted their argument.
Repeal Amendment Barnett has proposed a Repeal Amendment to the United States Constitution, which would give two thirds of the states the power to repeal any federal law or regulation. According to Barnett, the proposed amendment "provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse." as has
Attorney General of Virginia Ken Cuccinelli. Republican Congressman
Rob Bishop of
Utah introduced the amendment in the
House of Representatives.
University of Texas Law Professor Sanford Levinson has said that the Repeal Amendment "ha[s] the merit of recognizing that structures matter.".
Bill of Federalism The Bill of Federalism is a list of ten proposed
amendments to the
United States Constitution by Barnett. It would enshrine in the Constitution certain ideas based on
states' rights and
free market libertarianism. Barnett drafted the bill in response to the
Tea Party movement's emphasis on limiting federal powers. The present draft of the document was published on May 13, 2009, and incorporated much of the feedback that Barnett had received in response to the previous draft. The document is an expansion of an earlier 'Federalist Amendment' that Barnett composed as part of an article he wrote in the
Wall Street Journal. Barnett advocates for the states to call for a
Constitutional Convention in which they would propose the amendments comprising the bill. Alternatively, the United States Congress could propose the amendments to the states, as they have done every time a Convention to propose amendments has been called for. The amendments, summarized by number below, would: • Disallow federal
income taxes (repeal
Sixteenth Amendment), as well as
gift,
estate, and
consumption taxes; allow
FairTax; require a three-fifths
supermajority to raise or set new taxes • Set limits on the
Interstate Commerce Clause • Disallow
unfunded mandates and conditions on funding. • Close a constitutional
loophole that allows treaties to override established limits on power • Extend
free speech consideration to
campaign contributions and to cover any
medium of communication (including the
Internet) • Allow a resolution of three fourths of the states to
rescind any federal law or regulation. • Establish
term limits for Senators and Representatives. • Provide the President with a
line-item veto to
balance the budget on any year in which it is unbalanced. • Reinforce the
Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an
unenumerated right. • Restrict
judicial activism by mandating an
originalist method of interpretation. The Bill of Federalism Project has been incorporated as a nonprofit agency in the State of Tennessee. == Personal life ==