Bench Memos

Law & the Courts

Randy Barnett’s Our Republican Constitution—Part 2

I have some comments on, and questions about, the models of a “Democratic Constitution” and a “Republican Constitution” that Randy Barnett presents in Our Republican Constitution (and that I summarized in my Part 1 post):

1. I happily embrace the proposition that a constitution, like ours, that is founded on a political philosophy of natural rights differs in a fundamental sense from one that isn’t—and that that difference may well have implications for the judicial role in enforcing individual rights. Insofar as Barnett’s competing notions of “first come rights and then comes government” (Republican Constitution) and “first comes government and then come rights” (Democratic Constitution) are meant to contrast the philosophical logic (rather than the temporal sequence) of the two approaches, I’m on board.

2. But Barnett posits a more basic—and, to my mind, puzzling—divide between a Republican Constitution and a Democratic Constitution.

Put simply, I don’t think that I grasp his two competing notions of popular sovereignty—one (in the Democratic Constitution) that “starts with a collective vision of We the People” and one (in the Republican Constitution) that “views sovereignty as residing in the people as individuals” (emphases in original). My confusion isn’t helped by the fact that Barnett also refers to the Republican Constitution’s concept of We the People as “a collection of individuals” (p. 22 (emphasis added))—as though there were a fundamental distinction between collective and collection. I also don’t see how the concept of “joint” sovereignty of individuals is meaningfully different from collective sovereignty.

I’m no political philosopher, but I thought that a central proposition of Lockean social-contract theory is (as Barnett quotes Locke on p. 75) that “men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require.” If so, it would seem to follow that “people as individuals” do not retain the status as individual sovereigns that they possessed in the hypothetical state of nature.

3. Barnett (pp. 70-73) invokes the separate opinions of Justice Wilson and Chief Justice Jay in Chisholm v. Georgia (1793) in support of his concept of individual sovereignty. But I read those opinions very differently.

The legal issue in Chisholm was whether the state of Georgia enjoyed sovereign immunity from a lawsuit filed by a citizen of another state. In his very interesting opinion rejecting Georgia’s claim, Justice Wilson explained that states are not sovereigns under our Constitution. First invoking “principles of general jurisprudence,” Wilson argues that just as “a free man is bound by human laws [because] he binds himself,” so “an aggregate of free men, a collection of original sovereigns” (emphasis added) may unite to form and bind a state. In the part of his opinion in which he looks specifically to the Constitution, Wilson explains that “the people of the United States,” rather than the states, “form[ed] themselves into a nation for national purposes.” Far from insisting that individuals remained in their status of individual “original sovereigns,” Wilson points out that the Constitution, unlike the Article of Confederation, “has an operation on individual citizens.”

Similarly, when Chief Justice Jay states that sovereignty “rests with the people,” I understand him to be adopting a collective vision of We the People. As I read it, his language about citizens as “joint sovereigns” and as “joint tenants in the sovereignty” reflects this collective vision.

4. Barnett posits that the individual rights retained by the people after forming a Republican Constitution “closely resemble those enjoyed by sovereign monarchs.” But as I understand Lockean theory, the retained rights are determined by looking to the social contract (e.g., a constitution), as they are the obverse of the rights and powers that have been surrendered. In other words, the individual rights retained by the people can’t be defined in the abstract (without regard to a particular constitution), much less defined by comparison to the rights of absolute monarchs.

(To be sure, under Lockean theory, there are natural and unalienable rights, and it is the duty of a just government to protect such rights. Nothing I am saying, here or elsewhere, contests that proposition.)

5. Barnett objects that under a Democratic Constitution “the only individual rights that are legally enforceable are a product of majoritarian will,” including “the will of majorities who ratified the Constitution and its amendments and created constitutional rights.” That strikes me as a strange objection. How else, in practice, would Barnett like a constitution to be adopted?

Is Barnett contending that a Republican Constitution must be read to include all sorts of rights that have no basis in its text? If so, that proposition seems at war with his proposition that a Republican Constitution must be interpreted according to its original meaning. And if not, then aren’t the only individual constitutional rights that are legally enforceable under a Republican Constitution also the result of “the will of majorities who ratified the Constitution and its amendments and created constitutional rights?”

6. I also don’t understand the judicial roles that Barnett assigns under the Republican and Democratic Constitutions. Under a Republican Constitution, do judges look to the constitution to determine the “proper scope of [a legislature’s] just powers? Or do they rely instead on Barnett’s theory of individual sovereigns with rights that “closely resemble those enjoyed by sovereign monarchs”? If the latter, how again is that consistent with original-meaning interpretation? (One answer, I gather, is that a constitution would qualify as a Republican Constitution only if its original meaning confers on judges such a role.)

Barnett says both that a Democratic Constitution “is a ‘living Constitution’ whose meaning evolves to align with contemporary popular desires” and that judges under a Democratic Constitution “are told they should exercise their power of judicial review with ‘restraint.’” Insofar as “living Constitution” rhetoric is used to justify judicial invention of new rights, these two propositions strike me as incompatible. (For what it’s worth, if I were positing a model of a Democratic Constitution, it would have no rights provisions.)

7. Overall, what Barnett calls a Republican Constitution looks suspiciously like a fantasy libertarian constitution.

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