Monday, August 01, 2016

Summer Reading: “Our Republican Constitution”

Regular readers know I don’t often do book reviews in this space, and, truth be told, this won’t be a full-fledged review either. But if you are looking for an important book to read during the summer reading season, I want to commend Randy Barnett’s just published “Our Republican Constitution – Securing the Liberty and Sovereignty of We the People.”
First, two “trigger warnings” of sorts. Our Republican Constitution is a serious, thought-provoking book, but not necessarily one you’d grab for a day at the beach if you usually look for the latest Dan Brown or James Patterson offering.
And please pay attention to the second warning. Mr. Barnett’s book is about two different visions concerning what our Constitution means. He calls these divergent visions the “Democratic Constitution” and the “Republican Constitution.” But, as he says, “I don’t intend these labels to be partisan.” If you read the book, you will see that this is true. Mr. Barnett is not referring to the current Democrat and Republican parties.
With those trigger warnings out of the way, what differentiates the two divergent constitutional visions? According to Mr. Barnett, those who favor the Republican Constitution view the “We the People” – the opening three words in the Constitution’s Preamble – as individuals, while those who favor the Democratic Constitution view “We the People” as a collective entity.
Those who favor a Democratic Constitution hold a conception of popular sovereignty that elevates majority will as the presumptive governing doctrine. So, in this view, “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.” Therefore, Mr. Barnett concludes, “under a Democratic Constitution, first comes government and then come rights.” (Emphasis in the original.)
Under a Republican Constitution, the presumptive governing doctrine is reversed. Sovereignty resides in people as individuals. “We the People” is not a collective group but rather a collection of individuals. And, in the words of the Declaration of Independence, it is a “self-evident” truth that each individual is endowed “with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” As the Declaration goes on to say, “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
I don’t want to make Mr. Barnett’s case here and, in any event, I can’t do it in light of space limitations. But I will say that he marshals considerable evidence to show that our Founders incorporated into the Constitution’s language and its structure, including the Ninth and Tenth Amendments, the Declaration’s claim that individuals possess certain inalienable natural rights. Thus, Mr. Barnett asserts: “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.” (Emphasis in the original.)
So now consider the core of the difference between the two constitutional visions: 
The Democratic Constitution – “first comes government and then come rights”
The Republican Constitution – “first come rights and then comes government”
Or put another way, the Democratic Constitution’s vision places much more emphasis on majoritarian rule at the expense of protecting individual rights, while the Republican Constitution places more emphasis on securing individual rights at the expense of giving force to the majority’s will.
In essence, Mr. Barnett argues, convincingly in my view, that the Founders’ primary concern when they met in Philadelphia in the summer of 1787 was to adopt a governing charter that would guard against the excesses of “pure democracy,” especially against violations of property rights, then prevailing in the States under the Articles of Confederation. This concern regarding “pure democracy” – or unconstrained majoritarian rule – was expressed this way by James Madison to Thomas Jefferson in a famous October 1788 letter:
“Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”
Hence, the adoption of a Republican Constitution that created a representative government, with separation of powers and checks and balances, a republic intended to protect individual rights against the power of the majority.
In a portion of the book addressing how the progressive vision of the Democratic Constitution has facilitated the rise of today’s massive administrative state, Mr. Barnett says this about Chevron deference: “[I]t has profoundly weakened the separation of powers that is supposed to secure the sovereignty of the people and their servants in government.” Regular readers know that I have expressed a similar view, most recently here.
A significant portion of Mr. Barnett’s book is devoted to showing the extent to which the Republican Constitution vision has been lost, the adverse consequences of such loss, especially with respect to loss of individual freedom, and how “We the People” can redeem the Republican Constitution. On the latter score, I’ll just add that I agree with Mr. Barnett’s suggestion that the first thing we need to do is understand our constitutional heritage. I’m less enamored of some of the structural changes he suggests, such as establishing term limits for members of Congress or replacing the now-defunct power of state legislatures to select a state’s senators with a new provision giving a majority of state legislatures representing a majority of the population the power to repeal any federal law or regulation.
But read the book and draw your own conclusions!
*     *     * 
Finally, here’s another important book for a summer read, one you can proudly display either while sitting in a beach chair or in your own musty, book-lined study: “The Constitutional Foundations of Intellectual Property – A Natural Rights Perspective”, co-authored by me and Seth Cooper, my Free State Foundation colleague. Our book draws on many of the same historical, philosophical, and jurisprudential sources as Randy Barnett’s in arguing that, by including the Intellectual Property Clause in the Constitution of 1787, the Founders intended to secure the natural right of authors and inventors to reap the rewards from the fruits of their labors. Like Mr. Barnett, we look to John Locke, James Madison, and Abraham Lincoln, among others, in support of our project in support of the protection of intellectual property rights.
Right now, the Constitutional Foundations of Intellectual Property is available here from Amazon at a deeply discounted price. This steep discount may not last for long.