That’s not a persuasive rationale in Barnett’s mind. “You should have your own insurance,” he told me emphatically. “You should be insured. You should have health insurance, you should probably have life insurance, disability insurance. I insure myself.”

This quote exposes the weakness in his position, and I don't think that's an editorial or journalistic artifact - I've noticed similar lacunae in Barnett's writings online and in his arguments in person on legal panels and so forth.

Here's the problem in a nutshell: Professor Barnett says Government should not have the right to regulate, while the Individual should have an absolute right to contract (or not) - but that same Individual does not have the right to delegate any power to government, even in concert with a majority or supermajority of other citizens.

Why not? Why should citizens be forbidden to tinker with the boundaries of what is contractable? Contract qua privielege (ie private law) certainly predates the notion of a state and thus arguably forms a kind of natural law, but invoking natural law is IMO a weak response to the legal chafing that results from a constitutional republic - a Constitution that's legally Supreme and a republican form of government - from Res publica, a public affair as opposed to the private right of a monarch or emperor. Given the state of the world at the time, these distinctions were not academic or pedantic to the founders; consider that in 1805 the US (a Republic) was dealing with both a monarchy (the UK, albeit a cosntitutional monarchy rather than an absolute one, but we still deal with a few of the latter today) and an imperial state (France), so the governmental structure was not something you could take for granted the way you can today (when even obvious dictatorships like North Korea at least pretend top be democratic republics and go through the motions of conducting legislative business).

It seems to me that Barnett is arguing for adopting market fundamentalism dressed up in the fleece natural law, and while I am broadly pro-market I don't see any Constitutional basis for his argument. After all, the US is not constitutively capitalist; in theory we could have industry wholly nationalized as long as that nationalization did not involve expropriation. Just because this would a terrible idea economically and politically doesn't mean it would be unconstitutional. Private property would continue to exist, but if the government of the stumbled upon some fantastic cornucopia of material wealth then the citizenry could certainly direct the government to spend it on buying up the industrial base, having most of the work done by robots, and returning a dividend to the citizenry int he form of a basic income. (I'm using a fantastic example just to point out that the Constitution doesn't prescribe the structure of economic relations, so we needn't get hung up on questions about the reach of the Commerce clause, which is one area in which I agree with Barnett and other conservatives in rejecting Gonzales v. Raich and its key antecedent, Wicker v. Filburn.)

Barnett's argument reduces to a claim that contracts somehow precede commerce and that contractual relations (even commercial ones) are thus somehow outside the legislative scope, notwithstanding the juridical capacity for contractual interpretation in the event of a dispute. I feel that he, along with many other originalist scholars, secretly or unconsciously long for a priesthood rather than a judiciary that operates as a coequal branch of government.