The Fall 2016 issue of the Claremont Review of Books features a review well worth your time by Jeremy Rabkin, a professor at the splendidly named Antonin Scalia Law School (previously the George Mason University Law School). The professor has written on Randy Barnett’s new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. We should add that anything Rabkin or Barnett writes is well worth reading, whether you agree with them or not. (Both have written for THE WEEKLY STANDARD.)
As Rabkin shows, Barnett is an activist for constitutional liberty and limited government. When the debate over the constitutionality of Obamacare intensified, most commentators thought the law would survive any imaginable constitutional challenge. Barnett, a law professor at Georgetown, dissented. What about the commerce clause, which gives Congress power to regulate commerce among the several states? Does not the requirement that we all must buy health insurance violate that clause? Barnett helped represent the National Federation of Independent Businesses in its challenge to the health care law, and five Justices agreed with the group. “Congress has never before attempted to use the commerce power to order individuals not engaged in commerce to buy an unwanted product”—in this case health insurance—and “nothing in the text to the Constitution suggests it can.”
The Court upheld the law on other, dubious grounds. But as Rabkin writes, the Court’s refusal to read more into the commerce clause than it can be “most reasonably interpreted to mean” should “give heart to believers in limited government.”
Our Republican Constitution seeks “to anchor the Constitution in the doctrine of natural rights,” observes Rabkin. Barnett undertakes this effort by repairing to our political history, his main point being that “earlier generations put the emphasis on individual rights,” understanding their project as “republican” (hence the title of the book, Our Republican Constitution). Progressives in the late 19th century put the emphasis elsewhere, as they equated “justice with majority rule.” This is how the progressives came to embrace a “living Constitution”—one premised, as Rabkin deftly explains, “on the more of less explicit” idea “that the Constitution should mean what current majorities or in some cases future majorities, would find most acceptable.”
Barnett “champions the original understanding of the Constitution,” writes Rabkin, though without getting into the weeds of what it means or might mean with respect to any particular provision. “He wants to identify the overall spirit behind the Constitution—what it was meant to accomplish.” Protecting personal liberty and private property are his answers. Rabkin agrees—to a point. “You can agree that government is instituted to ‘secure’ natural rights and still acknowledge that government will do this more effectively if it does other thing to reinforce communal bonds”—so that we become more than just “a collection of individuals.”
Barnett closes his book by advocating a “Bill of Federalism” designed to restore constitutional limits by allowing a qualified majority of state legislatures to repeal acts of Congress. Not many constitutional amendments have actually been enacted, and Rabkin is not enthusiastic that any of Barnett’s might be.
Rabkin ends his review by noting that “neither of the two major parties nominated presidential candidates in 2016 with any commitment to the original Constitution’s limited government principles.” Pessimists, he says, will worry about that while optimists will say, in effect, that the country has survived constitutional disasters before and can do so again. I tend to agree with the optimists, while hoping for a renewal of constitutionalism from coast to coast.
