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.
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