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Government by Judiciary

Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.

Perhaps some new approach could break this impasse. This is the worthy purpose of Randy Barnett’s new book. The Georgetown law professor has risen to national prominence over the last several years as a defender of what might be called a libertarian constitutionalism. He has played this role both as a litigator (he helped craft the constitutional challenge to the Affordable Care Act) and as a theorist (he is the author of earlier scholarly books such as 1998’s The Structure of Liberty and 2003’s Restoring the Lost Constitution). In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, he addresses his arguments to a wider and more popular audience than the lawyers, judges, and academics who had been the primary target of his earlier work.

According to Barnett, we have largely forgotten the real meaning of the Constitution, and our politics has suffered as a result. Specifically, too many Americans are under the spell of what Barnett calls the Democratic Constitution. According to this view, the primary purpose of the Constitution is to enable the political majority—or various passing political majorities—to govern the country. Accompanying this understanding, says Barnett, is a belief in the propriety of judicial deference, the sense that judges should only rarely and with great hesitation presume to nullify the acts of the people’s elected representatives. America, after all, is a democracy. This means that the people get to rule, so judges should stay out of their way except in extraordinary instances. The problem with judicial deference, however, is that it often leaves the rights of individuals and minorities without adequate protection.

Barnett calls upon us to correct this error and avoid these dangers by returning to the Constitution as the Founders understood it. The Founders, it seems, intended something far different from what is usually supposed by the adherents of the Democratic Constitution. They were not primarily interested in establishing the conditions of democratic self-government. On the contrary, they were disillusioned with democracy by the extremely democratic state governments’ unruly behavior under the Articles of Confederation. From their experience of the misconduct of the states, the Founders learned that democratic government, rule by political majorities, all too often results in the oppression of the politically powerless.

As a remedy to this problem, the Founders sought to create what Barnett terms a Republican Constitution. The purpose of such a constitution is not so much to enable majority rule as to protect the rights of individuals, the natural rights that the Founders, following John Locke, believed human beings to possess by virtue of their humanity, and that they retain even when they have entered into civil society.

Accompanying this interpretation of the Founding is a new—or, as Barnett would say, a recovered—understanding of the meaning of the sovereignty of the people and the consent of the governed. The people are not sovereign collectively but individually: each person possesses sovereignty over himself by virtue of his natural liberty. The main point of the Constitution is not to secure the consent of the people understood collectively, as manifested in the will of popular majorities. It is instead to secure the kind of just government to which any free person would give his hypothetical consent because it secures his natural rights. As Barnett observes, Locke, and some of the Founders with him, spoke of certain kinds of laws as being intrinsically illegitimate on the grounds that they arbitrarily deprive people of their natural rights, and therefore nobody could ever reasonably be supposed to have consented to them.

With this Republican Constitution comes a de-emphasis on judicial restraint, which Barnett presents mainly as one of the errors of the Progressive Era, arising from the Progressives’ zeal to  sweep away judicial obstacles to their (then) popular political agenda. For Barnett, it is not so important that judges exercise their authority with restraint in order to show respect for the collective will of the sovereign majority. It is important rather that judges act conscientiously to protect the rights of the people as individuals, each of whom is sovereign in the sense of retaining his fundamental natural rights. Adequate protection of those rights calls not for judicial deference but for judicial skepticism, to ensure that all laws really serve a legitimate public purpose and intrude no more than is necessary on the freedom of the sovereign individual.

What are we to make of this Republican Constitution? In the first place, Barnett is to be credited for the aims he has in view and for the spirit in which he pursues them. The problems with which he is concerned are real and of grave import for the preservation of liberty and the rule of law: the decline of federalism, the undermining of separation of powers, and the proliferation of laws that seem to have no purpose but to give an undue economic advantage to politically well-connected groups. Moreover, Barnett confronts these problems with a bold and radical spirit.  That is, he is radical in the literal sense of going back to the roots: he returns to the Founding and the Constitution’s subsequent development with a view to taking a fresh look at the principles that inform our fundamental law.

But will this project work? That is, can it persuade enough people to generate a new consensus about how the Constitution should be understood? Here I have my doubts. It seems to me that the American belief in popular sovereignty—understood as the right of political majorities to govern the country—is very powerful and that an approach that tries to reduce it to a secondary consideration will have a hard time drawing adherents.

The presidential campaign of 2016 has strikingly revealed the latent power of the spirit of populism in American politics. The rise of Bernie Sanders and Donald Trump suggests the existence of a broad, bipartisan sense that government by the people is precious but has been neglected. The Americans attracted by Sanders and by Trump do not seem to be complaining  that anybody’s natural rights have been violated, but that the people generally have a right to rule in their own interest but have not lately been permitted to do so.

Moreover, those making and responding to such appeals are not simply acting on the basis of a misunderstanding of the Constitution they have inherited. They are instead acting on the basis of an aspiration deeply rooted in our history. Consider the venerable example of Abraham Lincoln, our first Republican president. Barnett correctly presents the creation of the Republican Party as driven by a determination to better align the Constitution with natural rights by limiting and finally doing away with slavery. Another important theme, however, was the right of the people, acting collectively through political majorities, to govern the country.

Thus Lincoln, in his celebrated Gettysburg Address, framed the Civil War as a contest to preserve “government of the people, by the people, for the people.” It is hard to read his invocation of government “by the people” as referring to anything other than the right of the people, understood collectively, to rule. Nor was this emphasis on the importance of democratic self-government a last-minute development in Lincoln’s thought. In 1860-61, he had condemned the seceding states not so much because they were acting in defense of slavery, but because secession itself was an attack on the right of the majority to rule. Secessionists would destroy the government rather than submit to the rule of the lawful authority: the voters who had elected Lincoln to the presidency.

Moreover, in making such arguments Lincoln was not departing from but building on the understanding of the Constitution that had informed the Founders. Barnett is right that the Founders believed that rights-protecting government is fundamentally more important than popular self-government. They nevertheless seem to have rated both quite highly. They understood the protection of natural rights as the essential condition of any just government. But they also treated popular self-government as highly desirable, and as very suitable to the American temper; certainly they intended to institute it. Hence James Madison’s suggestion, in Federalist 10, that the Constitution aimed to “secure the public good and private rights against the danger of” majority faction, “and at the same time to preserve the spirit and form of popular government.”

In an effort to combine these diverse goods, the Founders sought to create a Constitution that would empower the majority to rule even as it protected the rights of individuals. With a view to the latter purpose, they devised a number of constitutional expedients, including an enumeration of powers that limits the scope of the federal government’s authority, and the specification of rights in the Constitution in such a way that they could be vindicated by courts. On this understanding, we can see that the “republicanism” of the Constitution is manifested not only in its protections for individual rights and limited government, but also in its establishment of popular self-government.

Viewing the Constitution in this light, judicial restraint begins to look like a much more defensible way for judges to exercise their duties. Since the majority is basically authorized to govern, it makes sense for judges to conceive of their role as entailing a certain deference.  Nevertheless, since the majority is only authorized to govern within limits that are established by the Constitution, there may be cases in which a clear conflict between the Constitution and a law passed by a legislature requires a court to strike down the latter as inconsistent with the former.

If this account is correct, it would not be surprising to find that judicial deference or restraint has an older and more venerable pedigree than the Progressive movement. Such, indeed, would seem to be the case, at least if we can trust the classic Founding-era account of the judicial power, Alexander Hamilton’s Federalist 78. Hamilton, like Barnett, sees the Constitution as limiting the power of the government in ways that the courts can enforce. Unlike Barnett, however, he does not envision the courts as scrutinizing laws with a view to defending the natural liberty of the sovereign individual. He rather speaks of judges as performing the much more circumscribed task of enforcing “certain specified exceptions to the legislative authority,” or protecting the “reservations of particular rights and privileges,” contained in the Constitution.

Moreover, Hamilton contends that courts must strike down laws when they find “an irreconcilable variance” between them and the Constitution—a formulation strongly suggesting that courts must try to reconcile laws with the Constitution when there is some reasonable way to do so. But this is as much as to say that judges ought to approach their task of judicial review with a certain deference to the enactments of the legislature.

It is true that Hamilton, like Barnett, sees courts as “an essential safeguard” against “unjust and partial laws” that injure “the private rights of particular classes of citizens.” Hamilton, however, never suggests that courts have a power to strike down these abuses as unconstitutional—only to shelter the victims somewhat by “mitigating the severity and confining the operation of such laws.”

Barnett’s approach to the Constitution appeals to a deeply rooted American instinct: individualism, or respect for the sovereignty of the individual. But it also runs up against another deeply rooted American instinct: respect for the political authority of the majority. In view of this tension, Barnett’s interpretation will likely achieve a lasting place alongside existing ones, but without being able to supplant them. His libertarian constitutionalism will make our ongoing argument over the meaning of the Constitution more interesting, but probably will not be able to resolve it.

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