Bench Memos

Law & the Courts

Randy Barnett’s Our Republican Constitution—Part 4

See Parts 1, 2, and 3

Randy Barnett’s Our Republican Constitution culminates in his prescription for how federal courts should apply the Due Process Clauses of the Fifth and Fourteenth Amendments against “irrational and arbitrary” laws enacted by Congress or state legislators, respectively. (The Due Process Clauses protect any person from being deprived “of life, liberty, or property, without due process of law.”)

Barnett contends that these Due Process guarantees mean that any person subject to a law that restricts his life, liberty, or property must have a “fair opportunity to contest whether [that law] is within the ‘proper’ or ‘just power’ of a legislature to enact and therefore carries the obligation of a law.” (P. 228 (emphasis in original).) A law that is “irrational or arbitrary” is by definition “not within the just powers” of a legislature—even if it is enacted through an exercise of a constitutional power. (P. 228.) Further, if a power is being exercised for a just purpose, “we must next ask if the restriction of liberty is necessary to serve” that purpose. “Strict logical necessity is not required,” but “some degree of means-ends fit must be shown.” (P. 231.)

My basic question for Barnett is: Where does all this come from? How, in particular, does it flow from the original-meaning principles that he advocates?

I understand, of course, that Barnett is drawing on his political theory of “individual popular sovereignty,” which I outlined in point 2 of my Part 1 post and which I critiqued in my Part 2 post. But even if that theory were sound, how would it give rise to a judicial power to invalidate laws as beyond the “just power” of a legislature? How do federal courts have authority to determine that a law is unconstitutional simply because it is, in their view, unjust?

Barnett’s answer, I gather, is that the Due Process Clauses somehow can and should be read to incorporate his political theory. One difficulty I have with such an answer is that Barnett’s full account of “individual popular sovereignty” strikes me as a novel creation of his own. (Again, I am not disputing, and instead happily embrace, Barnett’s more modest propositions that our Constitution is founded on a political philosophy of natural rights and reflects the philosophical logic that “first comes rights and then comes government.”)

It’s too much, I acknowledge, to expect Barnett to offer a detailed originalist argument in a book intended for a popular audience. But when Barnett observes that in the early 20th century “[s]tate and federal courts responded to [the] wave of progressive legislation by interpreting the Due Process Clause of the Fourteenth Amendment to require an assessment of the reasonableness of restrictions on the ‘life, liberty, and property’ of individuals” (pp. 124-125), he seems to be describing a judicial innovation rather than a traditional practice. (That impression is reinforced by his statements that the courts “began to require some showing …” and “began to realistically assess…” (p. 125 (emphasis added)).) And Barnett’s apparent argument from necessity—that the ordinary democratic processes are inadequate to vindicate the rights of “prospective flower arrangers, interior decorators, hair braiders, horse massagers, [and] casket makers” (p. 243)—also does not seem the usual stuff of originalism

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