Our Republican Constitution

Securing the Liberty and Sovereignty of We the People

[Amazon Link]

The good people at the Interlibrary Loan desk at the University Near Here waggled their magic wands and got this book all the way from the University of Wyoming in Larimie! That's far! And wouldn't it be nice if it were available from somewhere closer?

The author, Randy Barnett, is a law prof at Georgetown, and a longtime libertarian-leaning scholar of the US Constitution. His purpose here is to distinguish between two major conceptions of the Constitution: "Republican" and "Democratic". Guess which one he advocates? (Hint: see title.)

The Republican and Democratic Constitutions don't have any necessary connection to the same-named political parties. (Especially in 2016.) The contrast starts in the interpretation of first three words of the document: "We the People". The Republican Constitutionalist holds that this refers to people-as-individuals, that individuals are the referent here; the Democratic vision holds that it's, instead, the collective.

This difference leads (necessarily?) to the origin of basic rights: Republicans (following the language of the Declaration of Independence) view such rights to be "endowed by [our] Creator", or, in more agnostic language, inherent in the nature of humanity and the physical world. On the Democratic side, rights are granted by the state through (of course) the will of the aforementioned collective, which is held sovereign.

Barnett runs through our entire US history, showing how these Constitutional conceptions played out in Supreme Court cases over the years. The Democratic side has had some major victories, and may be seen to be currently ascendant (especially if Hillary wins and gets to replace a few Republican-appointed Justices).

He's particularly scathing on the concept of "judicial restraint", the notion that the courts should yield wide latitude to the elected branches of government. That's not so: the Framers intended the judiciary to be a major impartial check on the possible abuses inflicted by the executive and the legislature. There's every reason that they should use their full skepticism when reviewing the Constitutionality of (say) Obamacare. (And they failed in that.)

Barnett also demonstrates that "judicial restraint" is used mostly as an argument of convenience, not principle. When it stands in the way of (say) a progressive goal, the progressives don't hesitate to drop it.

What to do, then? Barnett leaves his answer in a very short conclusion. He would prefer that an Article V Consitutional Convention be called, to propose a raft of amendments to clarify and strenghen Federalism and the proper limited powers of government. This shows no sign of happening, but … maybe.

Barnett's discussion is lively and blessedly light on the arcana of Constitutional law. I think it would be comprehensible to anyone with a good background in American history. (If you want less comprehensible, there's always Richard Epstein; love him, but he can be impenetrable now and then.)