Bench Memos

Law & the Courts

Randy Barnett’s Our Republican Constitution—Part 1

I’ve agreed to write a review of law professor Randy Barnett’s new book Our Republican Constitution. In order to work my way through some of Barnett’s arguments, I’m going to write a series of posts on the book. I’ll emphasize at the outset that I don’t intend these posts to form a review on their own. In particular, there is a lot in the book that I really like but that I might not discuss here; I’m instead going to be focusing in this series on some of Barnett’s arguments that I’m having difficulty with.

Let’s start with Barnett’s models of a “Democratic Constitution” and a “Republican Constitution,” two competing approaches that he says reflect sharply different understandings of the conception of popular sovereignty reflected in the first three words of the Constitution, “We the People.” I’ll present those models in this post and discuss them in the next post or two.

1. By Barnett’s account, a Democratic Constitution

starts with a collective vision of We the People;

which leads to a conception of popular sovereignty based on the “will of the people” as a group;

which, in practice, can only be the will of the majority. [P. 20 (emphasis in original).]

Under a Democratic Constitution, Barnett argues (in all italics), “first comes government and then come rights”:

Under a Democratic Constitution, the only individual rights that are legally enforceable are a product of majoritarian will—whether the will of majorities in the legislature who create ordinary legal rights, or the will of majorities who ratified the Constitution and its amendments and created constitutional rights. [P. 21.]

Barnett maintains 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.’” [Pp. 21-22.]

2. By contrast, a Republican Constitution “views sovereignty as residing in the people as individuals.” (Emphasis in original.) The purpose of the Constitution is “not to reflect the people’s will or desire—which in practice means the will or desires of the majority—but to secure the pre-existing rights of We the People, each and every one of us.” Further:

A Republican Constitution views the natural and inalienable rights of these joint and equal sovereign individuals as preceding the formation of governments, so first come rights and then comes government. [P. 23 (emphasis in original).]

Under a Republican Constitution, Barnett writes (in all italics), “the meaning of the written Constitution must remain the same until it is properly changed” via amendment. Further, the Constitution “must be interpreted according to its original meaning until it is properly amended.” (P. 24.)

The “primary duty” of judges under a Republican Constitution “is to adhere to the law of the Constitution above any statute.” Judges must hold legislatures “within the proper scope of their just powers” in order to protect the individual rights retained by the people. (P. 24.)

What, under a Republican Constitution, are the individual rights retained by the people? Under Barnett’s theory of “individual popular sovereignty,” the rights retained by the people “closely resemble those enjoyed by sovereign monarchs.” In particular, “sovereign individual citizens have jurisdiction over their private property”; “no citizen may interfere with the person and property of any other”; “individual citizens [may] use force in defense of themselves and their possessions”; and “individual citizens [may] freely alter their legal relations with their ‘fellow citizens and joint sovereigns’ by entering into contracts with each other.” (Pp. 24-25.)

Further, any law that does not have as its purpose the “equal protection of the rights of each and every person” is “beyond the just powers of a republican legislature.” And “when the liberty of a fellow citizen and joint sovereign is restricted, judges as agents of these citizens have a judicial duty to critically assess whether the legislature has improperly exceeded its just powers to infringe upon the sovereignty of We the People.” (P. 25.)