In 2012 when the Supreme Court upheld Obamacare, conservatives got what they asked for.
Or so says Georgetown University law professor Randy Barnett in his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. Chief Justice Roberts’ opinion in that case adhered to the Right’s twin sacred judicial principles: originalism and judicial restraint. The opinion applied originalism to find the Affordable Care Act beyond Congress’s Commerce Clause power; it then upheld the law through exercising restraint, deferring to the elected branches by saying the statute could be (although was not best read as) a tax.
Of course, most conservatives see the case as a disaster, not a win. But Barnett views the Obamacare outcome as “[t]he chickens of the conservative commitment to judicial restraint coming home to roost.” Long thought harmonious, Barnett asserts that conservatism’s twin judicial principles, in the end, are incompatible. Judicial restraint—understood as extreme deference to the elected branches—undermines the original meaning of the Constitution. The Right, therefore, must choose between them.
Our Republican Constitution argues conservatives should choose originalism and ditch restraint. Yet much of Our Republican Constitution does not argue this direct point. Instead, Barnett lays out the framework from which his view of the judiciary’s role arises. This framework can be broken down into two broad sections: principles and structure. Barnett first lays out the principles by which government obtains and exercises power. He then turns to the institutional structures that best realize these principles. Both, he argues throughout, necessitate vigorous, not deferential, judges.
Democratic Constitution v. Republican Constitution
Barnett begins by pinpointing a deeper dispute underlying different views of the judiciary. This dispute concerns the source of and the purpose for government’s powers. Barnett names these two competing perspectives the Democratic Constitution and the Republican Constitution.
Regarding the source of governmental powers, both sides look to the opening phrase of the Constitution: “We the People.” It is clear that this “We” is the ultimate source of power in our political community—what Barnett repeatedly refers to as sovereignty. Whoever holds sovereignty does “ordain and establish this [American] Constitution,” which itself is the supreme law of the land. But who does the Constitution refer to when it says “We the People”?
Here the two sides divide. Barnett claims that “[t]hose who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity.” Therefore, as unanimity on most matters is impossible, sovereignty effectively resides in majority rule. The Republican Constitution, on the contrary, “view[s] We the People as individuals.” Therefore, in this set-up sovereignty ultimately rests with each person.
The placement of sovereignty then affects the purpose of government. In the Democratic Constitution, government ultimately exists to fulfill majority will. Majority will forms the standard by which all other claims, such as individual rights, are held legitimate or rejected. As government’s purpose lay in fulfilling majority will, individual rights are the creation of and subject to that majority. Barnett summarizes this relationship in the Democratic Constitution as “first comes government and then come rights.”
The Republican Constitution rejects the claim that government represents the people. Instead, government is merely a “servant” with limited, delegated powers to perform limited, particular tasks. These tasks go back to the Republican Constitution’s commitment to individual sovereignty: the government must protect the possession and exercise of each person’s individual sovereignty from outside threats. Cast in this light, the possession and exercise of individual sovereignty is the exercise and possession of individual rights. Thus, the Republican Constitution reverses the Democratic Constitution’s relationship between government and rights, claiming that “first come rights and then comes government.”
The Tyranny Of A Judicial Majority
As the book’s title strongly suggests, Barnett sides with the Republican Constitution, considering it to align best with justice and originalism. While the Democratic Constitution leads to extreme judicial deference, the Republican Constitution supports a more active judiciary. We can see this distinction play out in one of the most frequent arguments hurled against the courts—that they are undemocratic. The people elect Congress and the President, who represent their will, while the judiciary is merely appointed. Thus, the argument goes, judges should defer to the branches with a more direct line to the people.
But this position relies on the flawed premise of the Democratic Constitution. Under the Republican Constitution, no part of the government represents the people’s will. Instead, all three branches serve the individual sovereigns through the fixed task of protecting rights. Thus, Barnett contends that “[l]ike legislators, judges too are servants of the people” with the same purpose, to “protect the individual rights ‘retained by the people.’” Given the purpose of government, courts should not defer to the other branches. They should vindicate individual rights whenever such a case comes before them, including by “hold[ing] democratic legislatures within the proper scope of their just powers.”
This point brings up a valid objection. The judiciary often does seem to act upon a particularly wrong form of majority will—its own—in creating previously unheard of rights. This concern explains much of the conservative fondness for judicial restraint as deference, fed on a steady diet of bad decisions stretching back to at least the Warren Supreme Court.
Barnett addresses this issue by answering what these rights are that the government in general and courts in particular must protect. In his answer, Barnett provides a welcome defense of natural rights. Drawing upon the Declaration of Independence and the Constitution, Barnett claims that our rights more than pre-exist government; they inhere in us as integral parts of our humanity, so much so that “you cannot give them up even if you want to and even if you consent to do so.”
We know of these “unalienable rights” based upon the “laws of Nature and of Nature’s God,” a natural law which provides an ethical standard for governments and for human life. The known content of rights, furthermore, is discussed in the both the Declaration and the U.S. Constitution. In the Declaration, they are listed as “life, liberty, and the pursuit of happiness” while the Ninth and Tenth Amendments codify the same in the Constitution’s text.
In explaining these points, Barnett implies that a pernicious form of judicial activism is possible. If the Supreme Court creates rights instead of protecting only existing ones, it subverts the other branches’ own responsibility to legislate or execute for rights’ protection. Against such action, other branches and the people must be vigilant against the courts even as the courts exercise vigilance in the cases before it.
Federalism and Separation of Powers
The preceding discussion points toward the Constitution’s institutional makeup. This makeup consists of federalism and separation of powers. For Barnett, the purpose of both is the same as that of government in general: the protection of rights. But they operate in a way different from what Barnett previously discusses. Previous protections Barnett refers to as “substantive,” taking the form of express prohibitions on the government doing certain things such as in the Bill of Rights. Barnett believes, however, that rights can be protected through what he calls “structural constraint” on government action as well. In fact, he claims these protections, because self-enforcing, are the most effective.
Barnett’s most interesting argument on federalism declares that it protects individual liberty by giving people choices. To explain, he picks up on the Progressive idea that states can be “laboratories of experimentation.” Different communities can test out different schemes of regulation to protect individual rights. Doing so enhances individual sovereignty, as people can exercise their liberty in moving to those places that fulfill their particular wants and needs. On separation of powers, Barnett does a solid job of describing how the Constitution envisions distinct types of power (the making, enforcing, and applying of laws) which undergird the three branches of government. Each branch exists not only to keep power out of the hands of one entity but also to exercise a distinct function for the protection of individual rights.
Taking substance and structure together, Barnett gives the judiciary plenty to do. Judges must protect the natural rights to life, liberty, and the pursuit of happiness whenever anyone—including other branches of government—infringes upon them. Furthermore, judges must strike down violations of federalism and separation of powers, as undermining these structures also leads to less protection for liberty.
Though enough to make Robert Bork turn (restraint-edly) in his grave, Barnett here seems to modify his standard for judicial activity found in his 2004 book, Restoring the Lost Constitution. Therein, Barnett argued for a “presumption of liberty” that appeared to place a heavy burden on government regulations to prove their constitutionality. In Our Republican Constitution, the government’s standard seems a bit lower. They still must prove their actions protect rights. But Barnett appears to allow more (dare I say it?) deference to the government in proving it does so before the courts.
The Republican Constitution Completed and Lost
In both his substantive and structural sections, Barnett also gives a Constitutional history through the lens of the Republican/Democratic constitutional divide. The history proves to be a back and forth affair. In this story, Barnett credits the Thirteenth and Fourteenth Amendments with completing the original Constitution by abolishing slavery and protecting natural rights against state infringement—both of which the original Constitution failed to do.
Barnett rightly points out how the rise of the Progressive movement in the late nineteenth and early twentieth centuries undermines this completion of the Founding. The Progressive movement rejects the Founding by accepting a form of the Democratic Constitution. In the name of majority will, Progressives attacked individual sovereignty, natural rights, and the purpose of government in protecting them. Moreover, this movement undermined separation of powers as also thwarting the will of the people, replacing it with an administrative state of experts that dangerously exercises legislative, executive, and judicial functions all together.
Judicial restraint, Barnett argues, proved to be one of the greatest aids in the assault. This fundamentally Progressive theory told judges to grant extreme deference to the supposedly democratic branches. As noted before, extreme deference meant that if a judge could conceive of any plausible reason why a legislature would pass a law, then he must uphold it. This kind of restraint then extended to administrative agencies, who in essence became the interpreters of their own extra-constitutional lawmaking, enforcing, and adjudicating. In so doing, Barnett shows historically as well as logically how judicial restraint undermines, not fulfills, the original intent of the Founders.
Barnett’s Constitutional Restoration
Viewing the history as a whole, the Republican Constitution predominately has been losing to the Progressive’s Democratic Constitution for most of the last century. What, then, is to be done about it? Barnett concludes with three ways to restore the lost Republican Constitution. First, remind America of its Republican heritage. Second, reform or re-institute at least one political party faithful to that heritage. Finally, make amendments to the Constitution through the Article V process.
These suggested means seem wanting. While publishing this book may remind America of its heritage, the other two goals appear either out of reach or undesirable. In calling for a party that will adhere to the Republican Constitution, Barnett rightly recognizes that academics and courts alone cannot bring about restoration. Instead, the political branches must also pledge their faith to this effort. But the current status of both parties presents little hope.
The Democratic Party long stands in the throes of progressivism. The Republican Party confusedly teeters on the brink of collapse with precious few signs that it is moving toward constitutional renewal. Nor, finally, is an Article V convention advisable. While enough states may agree to call the convention, it seems clear that not enough consensus exists on what to do at that convention. Neither should we trust that new “parchment barriers” would work where the finely wrought structure of the present Constitution has not. No, the answer seems to lie in a re-dedication to the Constitution we have, the one that Barnett so well explains.
Our Republican Constitution comes at an important time. The Obamacare decision exposed fissures in the conservative view of the courts. In this context, Barnett rightly and convincingly rejects the kind of deference practiced by Chief Justice Roberts, showing how that approach abdicates the judge’s role in our constitutional system. But Barnett may agree with more persons than he intimates.
The dissent in the Obamacare case, while using the language of restraint, did so in line with a crucial part of Barnett’s argument. The four dissenters argued against an activism that re-writes texts to suit judicial desires, cloaking such legislating under the guise of deferential modesty. This point provides common ground between Barnett and a large section of conservatives who use restraint language. If more of these conservatives would join in supporting the natural rights foundation of our government, then a true movement may be afoot. If that happens, the Republican Constitution may again be our Constitution.