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Rights First, Government Second

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Rights First, Government Second

Randy Barnett’s new book calls for limits on the power of the federal government. June 23, 2016
Politics and law

Our Republican Constitutionby Randy Barnett (Broadside, 320 pp., $26.99)

On April 2, 2012—just days after the Supreme Court heard oral arguments on the legal challenge to the Affordable Care Act in NFIB v. Sibelius—President Barack Obama took to the Rose Garden to warn the justices against taking the “unprecedented, extraordinary step” of overturning a law enacted by a democratically elected legislature. The president’s comments echoed those of liberal politicians and commentators who predicted dire consequences for the republic—and the Court—if Obamacare’s individual mandate were found unconstitutional. Though we may never know for certain, it appears likely that public pressure played a role in Chief Justice Roberts’s decision to uphold the individual mandate based on a tortured “saving construction” that rewrote the mandate as a tax provision.

For Georgetown law professor Randy Barnett, the Supreme Court’s Obamacare decision illustrates the peril of living under a regime in which the meaning of our supreme law must bend to the will of the majority—what Barnett calls the “Democratic Constitution.”  In Our Republican Constitution, Barnett argues that the “Democratic Constitution” theory has it exactly backward: the Constitution isn’t intended to facilitate majority rule, but rather to restrain it, whenever necessary, to secure individual liberty. This is the “Republican Constitution” of the book’s title.

Barnett’s book is important, not because he examines the undemocratic aspects of the Constitution—such as judicial review and the equal representation of states in the Senate—but because he unapologetically embraces those counter-majoritarian aspects as features, not as bugs of our supreme law. Barnett looks to the Declaration of Independence and its most immediate precursor, George Mason’s draft of the Virginia Declaration of Rights, as providing the first principles upon which the Constitution is based. Both documents assert that all men possess inherent, God-given rights, and that governments exist “to secure these rights.”

Thus, the Republican Constitution recognizes that the primary duty of government is to protect individuals’ preexisting rights. Or, as Barnett repeats frequently (so frequently that it takes on an almost hypnotic quality): first come rights and then comes government. Moreover, the rights secured by government are inalienable (“unalienable” in the Declaration’s idiosyncratic phrasing), meaning that they can’t be waived or sold off to accomplish some other goal, even if the majority wants to do so. For the Founders, our rights did not depend on the shifting tides of public opinion.

The Constitutional Convention of 1787 was largely motivated by a need to cure the problems that had arisen from, as Massachusetts statesman Elbridge Gerry put it, “an excess of democracy.” Under the loose framework of the Articles of Confederation, the states—with legislatures elected annually (in Rhode Island, every six months)—allowed local majorities to infringe the rights of unpopular minorities, such as creditors. The Constitution’s partial answer to this problem was to create a structure of government in which power would be divided between the state and central governments, and among branches of government, making it difficult for political entities to restrict individual liberty. But at the root of this system is the unspoken assumption that all government power is derived from the sovereign people.

When Benjamin Franklin was asked what kind of government had been devised by the Philadelphia convention, he is said to have famously replied, “a republic”—not a democracy—“if you can keep it.” The problem, as Barnett demonstrates, is that we have not “kept” a republic, but rather have been slipping ever closer toward the tyranny of the majority.

The shift to a more “democratic” constitution began in earnest during the Progressive era, when the zeal of would-be reformers ran into the reality of constitutional checks and balances, including an engaged judiciary. Supreme Court decisions like Lochner v. New York (1905), which struck down a state law limiting the working hours of bakers, infuriated progressives. Justice Oliver Wendell Holmes—who often aligned himself with the progressive camp—dissented from the Lochner decision on the basis that the Constitution must not be used to “prevent the natural outcome of a dominant opinion.”

As Barnett argues, the Lochner Court didn’t set out to undermine majority rule, but rather, to discharge its constitutional duty; namely, to assess whether the New York legislature had violated the Due Process Clause of the Fourteenth Amendment by restricting the liberty of bakers, without legitimate reason (in fact, the “Bakeshop law” had nothing to do with worker safety; it was intended to insulate politically connected bakeries from their upstart competitors). Nonetheless, progressives successfully demonized Lochner as the very nadir of judicial tyranny.  When Theodore Roosevelt sought the Republican nomination in 1912, he ran against the Lochner Court, arguing that “the people should have supervision over judicial decisions.” Roosevelt lost in 1912, but his constitutional views prevailed with the election of Woodrow Wilson, a liberal with little patience for checks and balances. To this day, Lochner remains unpopular, even among conservatives, and Barnett will surely generate controversy with his defense of that decision.

In a brief but comprehensive historical review, Barnett shows how the Supreme Court moved decisively in the direction of the Democratic Constitution during the twentieth century. The due process scrutiny used in cases like Lochner was abandoned; instead, statutes were presumed to be constitutional, and courts would uphold them as long as judges could perceive some rational basis for the law—even if the legislature never articulated that basis. But these triumphs of Progressive jurisprudence often yielded results that today’s progressives would like to forget. The Supreme Court’s growing deference to the will of the majority led to decisions like Bradwell v. Illinois, upholding Illinois’ refusal to allow women to practice law, and Plessy v. Ferguson, which upheld Louisiana’s system of separate-but-equal streetcars. More recently, judicial deference to legislatures and administrative agencies (which are creatures of Congress) has had disastrous effects on personal liberty and property rights.

Barnett offfers specific proposals to revive the Republican Constitution, the most important of which are embedded in his Bill of Federalism: ten constitutional amendments aimed at limiting the power of the federal government and unleashing real diversity among the states. Wisely, Barnett’s proposals—such as repealing the income tax and establishing congressional term limits—focus on structural changes that are difficult for courts to “interpret” out of existence. One quibble: inexplicably, the book describes only a handful of the proposed amendments; for the complete Bill of Federalism, readers must go to Barnett’s earlier book, Restoring the Lost Constitution.

The hard part, of course, is mustering the political will necessary to get three-fourths of the states to ratify the Bill of Federalism. Who would lead that charge? Barnett argues that at least one of the major political parties must take up the Republican Constitution, and that its “natural home” is the Republican Party. The party described by Barnett—who wrote his book before the presidential primary campaign—is a party committed to “constitutional conservatism” and “armed with an awareness of its noble republican history.” Alas, as today’s GOP appears to be turning away from that history and toward a more populist future, hopes for the Republican Constitution so bracingly advocated in this book recede further into the distance.

Photo by AleksandarNakic/iStock

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