Magazine | August 15, 2016, Issue

Rights before Government

Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, by Randy E. Barnett (Broadside, 320 pp., $26.99)

In his important new book, Randy Barnett — a Georgetown University law professor and my fellow blogger at The Volokh Conspiracy — reminds us that the Constitution did not create a democracy: It sought to constrain democratic impulses and was, in many key respects, quite undemocratic.

By invoking the idea of a “Republican Constitution,” Barnett means to call our attention to key features of the document’s structure and design, features that are often glossed over in contemporary debates about “judicial activism” and “judicial restraint.” The Constitution, as written, is undemocratic in that it seeks to blunt the exercise of majoritarian power. It does this by dividing and limiting government power so as to constrain the ability of political majorities to enact their will; the purpose of these limits is to protect the natural rights of the people. The separation of powers makes it difficult to enact new laws, and the enumeration of powers limits the ways in which the federal government may act.

The Constitution is not self-enforcing, however. The division of power between a legislative and an executive branch may serve to limit the power of each, but this is not enough. Congress and the president may act as rivals, but they may also collude for mutual advantage. Fulfilling the Constitution’s republican promise requires something more, a third branch of government, the judiciary, with the obligation to enforce these limits and ensure that the government acts only within permissible bounds. As the great chief justice John Marshall explained in Marbury v. Madison, the judiciary, when called upon in a proper case, has a solemn obligation to say “what the law is” and to recognize that “a legislative act contrary to the Constitution is not law.”

Most debates about constitutional law focus on what the Constitution means, what it prohibits and what it requires. Barnett asks us to focus also on “the proper role of judges in enforcing that meaning,” and to question the widespread embrace of judicial deference and restraint.

The idea that the judiciary has an obligation to constrain the democratically elected branches is not always a popular one. For much of the 20th century, legal scholars on both the left and the right have called for judges to defer to democratically elected branches, much as President Obama urged the Supreme Court to heed the will of a “majority of a democratically elected Congress” when the Affordable Care Act was challenged in NFIB v. Sebelius.

Barnett challenges this view. The idea of judicial restraint is not a product of the Founding or of the original understanding of the Constitution so much as it is an invention of the Progressive era. As Barnett observes, “progressives gave us the concepts of ‘judicial restraint’ and ‘deference’ to the majoritarian branches” so as to counteract judicial resistance to their ideological program.

Although initially advanced by progressives, the idea of judicial restraint was subsequently embraced by conservatives, largely in reaction to the Warren Court’s excesses. They diagnosed the problem as one of judicial power rather than of judicial decisions unmoored from history or text. Both progressive and conservative proponents of judicial restraint have embraced what Barnett calls the “Democratic Constitution,” a constitutional ideal that sees “We the People” as a collective and presupposes that government precedes the rights of individuals. From this premise, the idea that judges should defer to democratic majorities follows. Yet as a matter of law and history, Barnett argues, the theory of a Democratic Constitution has it backward and is “inconsistent with the most basic premises of the Constitution.”

Barnett’s alternative vision, of a “Republican Constitution,” is based on the recognition that ultimate sovereignty resides “in the people as individuals.” Consistent with the understanding of the Constitution’s framers — and the text they adopted — the “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.”

The Constitution, as written, creates a republic that restrains government power, for the protection of liberty, as much as it facilitates its exercise. While creating a framework for necessary government action, the constitutional structure is also designed to frustrate the exercise of such power and constrain the ability of political majorities to work their will. Fidelity to the Constitution requires fealty to both of these purposes and, above all, to the Constitution’s text.

As Chief Justice Marshall counseled in Marbury, the whole purpose of a written constitution is to fix limits on government power. When judges ignore the textual limitations on government power, this is not judicial “restraint” so much as judicial abdication. As Barnett explains, the Republican Constitution “provides the law that governs those who govern us and it is put in writing so it can be enforced against the servants of the people.” If changing conditions suggest that constitutional constraints should be altered, it is not for judges to make these alterations but for the people to act through the amendment process. Until that point, judges are obligated to enforce the Constitution by its terms, even if it means rejecting the work of democratic majorities and elected representatives.

Barnett’s theory endorses adherence to the original public meaning of the constitutional text and judicial fealty to the textual limits on government power contained therein. Perhaps more controversially, Barnett argues that it also requires greater judicial scrutiny of government action that is not directly constrained by the text. As Barnett explains, “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.” What this means in practice is that judges must carefully scrutinize legislative enactments, operating under the premise that sovereign individuals would not delegate to the government any authority to impose unreasonable and unjustified restraints on individual liberty. In other words, a “rational basis” test must, in practice, actually consider whether a given law has a permissible rationale: Judges must force government officers to supply reasons for restrictions on individual liberty and, where such are lacking, be willing to strike laws down.

Although Barnett is a libertarian, Our Republican Constitution is not a libertarian book. Embracing Barnett’s prescriptions does not require embracing the libertarian conception of the Constitution that Barnett has advanced in some of his other work (most notably, his 2004 book Restoring the Lost Constitution). To say that judges must enforce the text and structure — and ensure that enacted laws contain some minimum rationality — is not to authorize unconstrained judicial activism but to expect judges to be active within specified bounds.

Our Republican Constitution is a lucid and powerful call for judges to reject the false promise of judicial restraint in favor of more-direct engagement with a judge’s duty to say what the law is and enforce constitutional limits on government power. As such, it is a welcome corrective to the reflexive call for deference and legislative supremacy.

The book is also timely. Today we live not so much under a “Democratic Constitution” as under a bureaucratic one. The idea that courts should stand aside to let the majoritarian branches work their will has given way to the idea that the political branches may delegate their power to unaccountable agencies that, in turn, are due the same degree of deference from the judicial branch. This marks an even greater betrayal of the Constitution’s vision, and a greater threat to the liberty it is meant to protect. When the bureaucratic imperative is combined with the Democratic Constitution’s doctrines of restraint, the result is judicial abdication and a betrayal of our Constitution’s real premise.

By itself, a resurgence of our Republican Constitution may not be enough to restore American constitutional government, but it would be a tremendous start. This book therefore merits wide readership and careful consideration. It starts a conversation about the nature of our Constitution and our country that is desperately needed and long overdue.

– Mr. Adler is the inaugural Johan Verheij Memorial Professor of Law at the Case Western Reserve University School of Law. His latest book is Business and the Roberts Court.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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