Patterico's Pontifications

4/20/2016

Review: Randy Barnett’s “Our Republican Constitution”

Filed under: General — Patterico @ 12:31 am



I promised you a review of Randy Barnett’s new book, “Our Republican Constitution” — just not yesterday, when it would be overshadowed by the election. As I said yesterday, I somehow managed to score an advance copy, and it has definitely whetted my appetite for more. Order it through this link.

Barnett’s main thesis is that there are two competing views of the Constitution: the Republican Constitution and the Democratic Constitution. One vision, the Democratic Constitution, places primacy in government (rule by the majority), while the other, the Republican Constitution, emphasizes natural rights (rights first, government second). Barnett contends that the former version, the Democratic Constitution, is dangerous and has led to atrocities like the decision upholding ObamaCare. Specifically, when Justice Roberts gave primacy to the notion that ObamaCare should stand because it was a law passed by a majority of the People’s representatives, he abandoned his duty to scrutinize the law for constitutional defects, and thus favored the Democratic Constitution over the Republican Constitution.

Barnett goes back to the Declaration of Independence as stating the foundation of the Founders’ vision. The Founders extolled the basic natural rights to life, liberty, and property/happiness — a triad that found its expression not just in Locke and in the Declaration of Independence, but also in the George Mason-penned Virginia Declaration of Rights, as well as several state constitutions that quoted from Mason’s draft of that document.

Barnett explains how this conception found its way into the language of the Constitution. He first focuses on Madison’s essay “The Vices of the Political System of the United States” with its concerns about the dangers of democracy and majoritarianism — concerns that seem very prescient in the age of Trump, and which regular readers know that I rail about regularly. Barnett shows that the Constitution embodies a “rights first, government second” conception through provisions like the Ninth and Tenth Amendments, and the limited grant of powers to Congress in Article I, section 8. Barnett argues that, since ultimate sovereignty rests in individuals, and there are problems with the notion of “the consent of the governed” (see for example my post about Robert Nozick’s thought experiment The Tale of the Slave), government should not imply consent to any law or government that tramples on natural rights.

Barnett explains how Republicans, responding to slavery, created a more Republican Constitution through the Thirteenth and Fourteenth Amendments. Supreme Court justices once argued that the Thirteenth Amendment conferred positive powers on the federal government to remove the “badges and incidents” of slavery — “liberty” being the opposite of slavery. Barnett also provides a history of the Fourteenth Amendment to argue that its sponsors believed that the “privileges or immunities” clause of the Fourteenth Amendment (quickly neutered by the Slaughter-House Cases) were intended to assure citizens that the states could not infringe upon the rights listed in the Bill of Rights. But Slaughter-House and Plessy stomped on this conception, leading to the view of Justices like Holmes that majorities could do pretty much whatever they damn well pleased.

Holmes’s supposedly conservative mindset thus lined up squarely with the views of progressives like Theodore Roosevelt, who showed utter contempt for judicial review. The Republican Constitution took further blows with the passage of the Sixteenth Amendment (feeding the federal beast with taxation on income) and the Seventeenth Amendment (providing for direct popular election of Senators). The short-lived attempts of the New Deal-era Supreme Court to carve out a sphere of economic liberty (usually in response to laws favoring large crony capitalists — same as it ever was!) gave way, as we all know, to a decision (Wickard v. Filburn) that prevented a man from growing wheat on his own property for his own consumption.

Barnett takes us on a short journey of constitutional history, focusing on rulings addressing two structural rules of the Constitution that effectively preserve liberty — the separation of powers, and the limitation on Congress’s powers in Article I, section 8. Barnett emphasizes that federalism “makes diversity possible” and thus preserves liberty. But in the Gonzales v. Raich decision (which this blog is old enough to have condemned contemporaneously!) we saw any nascent effort at federalism largely fall apart. Finally, with ObamaCare, Justice Roberts affirmed the notion that the Commerce Clause did not allow a mandate to buy a product — but nevertheless, due to his deference to the vision of the Democratic Constitution, allowed the mandate to survive as if it were a tax. (For more on the silliness of the ObamaCare decision, I recommend the short tract by Senator Mike Lee titled Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court’s Obamacare Ruling. This pamphlet is likely to appeal primarily to lawyers, but I read it recently and found it very readable.)

One valuable thing about Barnett’s book is the renewed respect it gave me for my favorite Justice, Clarence Thomas. Not only did Justice Thomas have the best opinion in Raich, but he has also opposed the consolidation of judicial, executive, and legislative power that has taken place in our mammoth federal bureaucracy, aided by horrible decisions like the Chevron decision (mandating judicial deference to administrative decisions) that we remember being discussed in the run-up to the second ObamaCare case, King v. Burwell. (Even though Chevron ended up playing no role in the King case, it still serves to oppress citizens by effectively removing any realistic judicial check on arbitrary administrative lawmaking and enforcement.) Barnett gives several stirring quotes from Thomas opposing this dangerous state of affairs. I’m going to take the liberty of reproducing one of those quotes here, because I think it is important:

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

(For more on the oppressive bureaucracy, as well as suggestions for how to use a form of civil disobedience to oppose it, I recommend Charles Murray’s By the People: Rebuilding Liberty Without Permission, which I read recently and hope to review here one day.)

[UPDATE: It’s probably worth noting that Thomas has not always been good on Chevron. I’m not an expert in this area, but I’ll note that the excellent quotes Barnett provides from Thomas are recent — causing me to hope that Justice Thomas is rethinking his views in this area.]

I’m not absolutely certain I agree with all of Barnett’s conclusions, but his philosophy intrigues me enough that I will be buying and reading his other books. If you love liberty — and wonder how we got to the point where the Constitution no longer seems to protect it — “Our Republican Constitution” is well worth your time. Once again, it can be purchased here.

UPDATE: Deleted a line that I’m told was based on an error in the advance copy that was fixed in the final version.

11 Responses to “Review: Randy Barnett’s “Our Republican Constitution””

  1. I’m 65 years old and when I was seven I was taught, IN GOVERNMENT SCHOOLS, that the Constitution was a “living document”. It took me until twelfth grade to shake that misconception. So the BS goes back at lest that far. Once the “living document” meme became common knowledge by propagandist teachers everyone entered college then law school pre programed for a Democratic Constitution.

    Hoagie ™ (e4fcd6)

  2. Of course you learned that in government schools. They specialize in pro-government propaganda.

    Patterico (86c8ed)

  3. UPDATE: It’s probably worth noting that Thomas has not always been good on Chevron. I’m not an expert in this area, but I’ll note that the excellent quotes Barnett provides from Thomas are recent — causing me to hope that Justice Thomas is rethinking his views in this area.

    Patterico (86c8ed)

  4. Two comments:

    1. The Slaughterhouse Cases (5-4, 1873) did not kill the “privileges or immunities” clause “later” but almost immediately, only 8 years after ratification in its first major test. The Court’s members included 8 Republican appointees, so bad appointments were a rpoblem even then.

    2. I am willing to bet than few, if any, college students today are required to read Locke’s Second Treatise of Government. I’d bet many of their professors haven’t either. I am once again amazed at the selection of books my college made every frosh read as a common core back then. I’d probably be saddened to see what they suggest now.

    Kevin M (25bbee)

  5. And of course, it is worth mentioning that Scalia did not cover himself with glory in Raich. He had a chance to further so many of this goals, and he proved to be just as blinded by particular issues as some of his colleagues on the left. It is also worth mentioning that Kennedy, for all his lofty claims of furthering “liberty interests”, voted the wrong way on Raich as well. But then he’s always been more pliable.

    Kevin M (25bbee)

  6. Patterico,

    As you probably know, Thomas’s overriding goal is to resurrect the “privileges or immunities” clause as the minority’s bulwark against encroachment by states. Among other things, it is a much better place to hang federal rights, or even rights commonly acknowledged (e.g. travel), than “substantive due process.” Bork thought so, too, but alas.

    Kevin M (25bbee)

  7. I’m no fan of the Civil War Amendments and I consider the 17th repugnant to the fundamental structure of the Federal government, it usurps the role of State governments and deprives the people of an effective check on Federal excess. It results in an unlimited role for the Federal government at the expense of the State governments which is upside down.

    ropelight (6b0bd8)

  8. 1. The Slaughterhouse Cases (5-4, 1873) did not kill the “privileges or immunities” clause “later” but almost immediately, only 8 years after ratification in its first major test. The Court’s members included 8 Republican appointees, so bad appointments were a rpoblem even then.

    It was quick, but 8 years after passage is later than passage . . .

    But yeah, “soon” might have been a better word. I’ll change it but don’t want to do a whole update about it.

    Patterico (86c8ed)

  9. “Quickly” fits the sentence better than “soon” so that’s what I went with.

    Patterico (86c8ed)

  10. And of course, it is worth mentioning that Scalia did not cover himself with glory in Raich.

    Yup, as I said at the time (link in the post): “I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.”

    Patterico (86c8ed)

  11. Kevin M.

    I actually am embarking on a little project concerning a core curriculum of things that should be read as part of one’s education, I would be interested in knowing what that was for you, and where and when.

    As a science major, the most enlightening thing I was required to read was probably Lewis’ Abolition of Man in a required English composition course. Newer versions of the anthology we used as a text no longer include it.

    MD back in Philly!!! (f9371b)


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