In his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Georgetown law professor Randy E. Barnett answers the question of who constitutes “We the People.” He provides new insights into what that means for America’s Constitution and government, while demonstrating how an alternate understanding of the first three words of the Preamble led to Chief Justice John Roberts’ decision in NFIB v. Sebelius.
Those familiar with Barnett’s style will not be surprised by the book’s inclusion of heaps of historical context to support his points, nor will they be shocked that it ends with actionable solutions to the problems he identifies. However, Our Republican Constitution is a more comfortable read than his previous works for one not immersed in constitutional study. Barnett effectively ties his past scholarship with newer explanations and ideas he has not introduced elsewhere.
Our Republican Constitution combines Barnett’s previous work—including his role in the constitutional challenge to Obamacare—with a newer explanation of why our Constitution is republican, rather than democratic. He doesn’t differentiate the constitutions according to modern political understandings of “republican” and “democratic,” but chooses these terms because they “have deep roots in our constitutional history.” In Barnett’s view, the two visions of the Constitution stem from two definitions of “We the People”—that composed of “individuals,” and that which functions as “a group, as a body, as a collective entity.”
This, in turn, leads to two views of popular sovereignty, or the right of the people to rule. Under a republican Constitution, sovereignty resides “in the people as individuals,” and government exists to secure the rights of the people—rights that preexist government. As Barnett often says, “first come rights and then comes government.” Representatives in government “must not themselves use their delegated powers to violate the very rights they were empowered to protect.” According to this view, the separation of powers exists not to “protect the prerogatives of Congress,” but “to secure the sovereignty of the people.”
Under a democratic Constitution, popular sovereignty rests in the hands of majorities (not every single person because, in practice, every member of We the People agrees on nothing), who impose their will through government. Barnett explains that this view does allow government to protect some rights of individuals, “but not so many as to thwart unduly the will of a majority.” This understanding is enshrined in the words of presidents such as Theodore Roosevelt, who contended that judges have a duty to “follow, rather than thwart, public opinion,” and “to keep their hands off such statutes when they have any reasonably permissible relation to the public good.”
Barnett quotes various presidents in order to show that numerous occupants of the executive office have held the democratic view of the Constitution, in which the will of majorities takes precedence over government’s constitutional duty to protect the liberties of the individual. His examples provide an essential understanding of how the democratic view of the Constitution has dominated the thinking of some presidents—thus endangering the rights of the individual.
Barnett believes the Constitution is “republican in nature,” but has been weakened over time as majorities sought ways to overcome constitutional constraints on power. For example, constitutional limits on congressional power are unenforced when the Supreme Court uses “judicial restraint” to avoid striking an unconstitutional act. Barnett proves that “‘restraint’ and ‘deference’ to the majoritarian branches,” in addition to the concept of “a living Constitution,” are deeply rooted in progressivism. To demonstrate, Barnett points out that, while Justice Oliver Wendell Holmes is often remembered as “a crusty New England conservative who adopted judicial restraint solely as a matter of principle,” he was actually “an enthusiastic supporter of the New Republic and the men who edited it.” On his 93rd birthday, President Franklin Roosevelt sent him a note, “wishing all good things for the most splendid and wisest of all American Liberals.”
Judicial restraint also creates a problem Barnett calls “double deference.” “The judiciary must defer to the legislature’s judgment that a law restricting liberty is rational and therefore find it to be constitutional. Then, when you ask a legislator whether a proposed restriction on liberty is constitutional, he or she will reply, ‘Yes, because the courts will uphold it.'”
NFIB v. Sebelius provides a good illustration of the problem with judicial restraint and the “double deference” it creates. As Barnett notes, Justice Roberts upheld Obamacare’s constitutionality by changing “the statute so it was no longer an unconstitutional mandate.”
Barnett uses Roberts’ opinion to shows that he rewrote the law “in the name of judicial restraint that requires deference to Congress.”
President Obama regularly proves the problem with deference when he cites Roberts’ opinion as an example of “judicial restraint” and justifies Obamacare’s constitutionality by noting it was upheld by the Supreme Court.
Barnett has long argued that the original meaning of the Ninth Amendment is precisely what it says and, when it is ignored, our republican Constitution is weakened. He quotes James Madison, who argued that the Ninth Amendment was necessary to prevent the belief that, “by enumerating particular exceptions to the grant of power, it would disparage” unenumerated rights. Madison was concerned that could lead people to believe these rights “were intended to be assigned into the hands of the general government, and were consequently insecure.” His concerns proved valid as, despite the Ninth Amendment, courts regularly consider our unenumerated rights less deserving of protection.
This leads to what is arguably among Our Republican Constitution‘s most insightful points.
In other words, courts’ focusing so much on our enumerated rights is a bad sign, particularly because that some rights are expressly included in the Constitution was never intended “to deny or disparage others retained by the people.” The Ninth Amendment couldn’t be clearer.
In typical Barnett fashion, the professor ends his book with actionable ways to overcome the democratic Constitution, adding that it “will not be easy, but because our Republican Constitution is in writing, there is still hope.”
The book is an invaluable read. Whether one believes judicial restraint is a virtue or vice, he will leave these pages both with a greater knowledge of historical context surrounding our founding document and challenged to confront his preconceptions about the original meaning of the Constitution and its implications. Our Republican Constitution adds greater depth to the picture of the Constitution and its constraints on government that Barnett has been painting for years.
