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.
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