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Our Republican Constitution: Securing the Liberty and Sovereignty of We the People – A Manifesto for Renewing Individual Rights and American Democracy
A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic.
The Constitution of the United States begins with the “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.
Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.
In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.
Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.
The Constitution of the United States begins with the “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.
Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.
In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.
Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.
292 pages, Kindle Edition
First published February 2, 2016
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July 21, 2016“Georgetown law professor Randy Barnett is the most prominent libertarian in legal academia today. His latest book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, shows why. Characteristically of libertarian legal scholars, Barnett decries the essentially unchecked power of the federal legislative and executive branches (I agree with him about that) and advocates that the courts exercise far broader veto power over federal and state policymaking (which is not my favorite idea).
Barnett bases his argument for reinvigorated judicial imperialism on a peculiar reading of the United States’ founding documents—one holding that the Constitution was the act of one people, and that somehow this means individual Americans are sovereign. The sovereignty of the people, in turn, underpins Barnett’s longstanding claim that the Constitution embraces a “presumption of liberty” that courts must uphold against the other branches of government.”
http://www.theamericanconservative.co...
Barnett bases his argument for reinvigorated judicial imperialism on a peculiar reading of the United States’ founding documents—one holding that the Constitution was the act of one people, and that somehow this means individual Americans are sovereign. The sovereignty of the people, in turn, underpins Barnett’s longstanding claim that the Constitution embraces a “presumption of liberty” that courts must uphold against the other branches of government.”
http://www.theamericanconservative.co...
September 19, 2016
The driving thesis in Randy Barnett's latest is that there are basically two ways of reading our founding document. Barnett categorizes under the heading of "the Democratic Constitution" any interpretation that defers to the majoritarian outcome of the political process and as "the Republican Constitution" any interpretation that declares unconstitutional laws that violate individual liberty.
So John Roberts's decisions upholding Obamacare? Democratic Constitution. Reconstruction-era decisions upholding Jim Crow laws? Democratic Constitution. New Deal court deferring to FDR? Democratic Constitution. But Lochner v. New York? Republican Constitution. Brown v. Board? Republican Constitution. Etc.
In this way, Barnett proceeds through our country's history—branding as heroes, in the mold of those who integrated our schools, judges who strikes down even the mildest restraints on contract; and lumping in with slavery defenders any court that enforces economic regulation. In so doing, Barnett rarely bothers to parse out that different types of legal issues implicate different Constitutional provisions. Instead, every undesirable law must run afoul of a personal liberty protected by the Ninth Amendment's penumbras and/or fail to satisfy the requirements of substantive due process.
Barnett's ridiculously oversimplified approach necessarily ignores glaring examples of judicial overreach. He focuses almost exclusively on the trendy topic of economic liberty and doesn't bother to address abortion, Obergefell, or our unhinged establishment clause jurisprudence.
The book could also have used another coat of polish. Barnett mentions in the acknowledgments that the writing process included a substantial reorganization, and some of the seams from that reorganization show. For example, a new case is referred to as if the reader is already familiar with the details, and then only introduced and explained later.
All of that said, the book was not a total waste of time. It is an easy read with a pleasant informal style, and the history of constitutional development was a fun review. I hadn't thought about some of these issues since law school, and it was nice to get a refresher and clarify some of my thinking.
So John Roberts's decisions upholding Obamacare? Democratic Constitution. Reconstruction-era decisions upholding Jim Crow laws? Democratic Constitution. New Deal court deferring to FDR? Democratic Constitution. But Lochner v. New York? Republican Constitution. Brown v. Board? Republican Constitution. Etc.
In this way, Barnett proceeds through our country's history—branding as heroes, in the mold of those who integrated our schools, judges who strikes down even the mildest restraints on contract; and lumping in with slavery defenders any court that enforces economic regulation. In so doing, Barnett rarely bothers to parse out that different types of legal issues implicate different Constitutional provisions. Instead, every undesirable law must run afoul of a personal liberty protected by the Ninth Amendment's penumbras and/or fail to satisfy the requirements of substantive due process.
Barnett's ridiculously oversimplified approach necessarily ignores glaring examples of judicial overreach. He focuses almost exclusively on the trendy topic of economic liberty and doesn't bother to address abortion, Obergefell, or our unhinged establishment clause jurisprudence.
The book could also have used another coat of polish. Barnett mentions in the acknowledgments that the writing process included a substantial reorganization, and some of the seams from that reorganization show. For example, a new case is referred to as if the reader is already familiar with the details, and then only introduced and explained later.
All of that said, the book was not a total waste of time. It is an easy read with a pleasant informal style, and the history of constitutional development was a fun review. I hadn't thought about some of these issues since law school, and it was nice to get a refresher and clarify some of my thinking.
February 19, 2023
The concept behind this book is mildly interesting, and the majority of the book is a bashing of progressive Supreme Court opinions. This is certainly right and just, but I wasn’t blown away until the penultimate chapter on irrational and arbitrary laws that has genuinely caused me to re-think how I understand the due process clause. That chapter alone makes the book worth reading once. Professor Barnett’s consistent name-dropping and periodic libertarian nonsense makes it worth reading ~only~ once.
May 19, 2017
I had originally started reading this book and felt the first couple chapters themselves justified the price of the book. It seemed very helpful to explain what the heck is going on in this country! (America) It can be rather hard to understand at times, discussing law cases from history, and I ended up pausing my reading of this book for quite a while. A recent news story about the separation of Church and State and online discussions that resulted, prompted me to think about all this again. I don't quite understand the discrepancy between having a Declaration of Independence that declares our rights as being inalienable and having been endowed by our Creator, which then led to the Constitution, instituted to protect these rights...and the eventual "progress" to now having God being essentially like Voldemort, "He-Who-Must-Not-Be-Named".... It appears as if our Declaration of Independence has been almost entirely ignored for a long time. The Constitution seems to be considered as a stand alone document, thus losing a significant aspect by doing that...anyway, that got me to return to this book. I was able to read it straight through from the beginning again much more easily. I think it is an extremely important book for all Americans to read. It explains how our Constitution has come to be interpreted in two different ways, one way based in seeing our sovereignty, "We the People", as individuals, the other as a group. It actually makes a big difference. It discusses majority rule, the effect of Progressivism of both Republicans and Democrats, the interpretation of the Constitution as a "living document"...It starts at the very beginning and from actually even a little before, explaining the earlier thinking that influenced our Founders when they wrote the documents... I feel it is very important to honestly assess what side one comes down on, and to understand why...there will be those that fall on both sides I'm sure, but there are consequences to all this stuff and we are experiencing them every day, seemingly more and more...
February 2, 2020
A pretty good popular book on the main libertarian criticisms of existing constitutional law doctrine. The book starts with the premise that the government exists to protect individual natural rights, the most important being liberty, not to reflect the majority's will (and takes Wood's line that the constitution was formed in response to a perceived excess of democracy in state governments). The book provides a pretty simple and accessible narrative of the evolution of constitutional doctrine from limited federal powers, to the expansion of the commerce clause from the new deal (ignoring the limited nature of federal government, and together with a board and unbound spending clause ignoring the federalism nature of the states), the rise of the administrative state (ignoring the separation of powers, and difficult to undo because of the veto gates inherent in checks and balances), and the rational basis test that seems to find government intrusions into liberty to be presumptively constitutional. Barnett is particularly upset that the judiciary has protected social liberties but not economic ones including the right to property. The book argues that the structural protections that have been eroded, including federalism (and a person's exit right from different mixes of state social experimentation), limited powers, and separations of powers were meant to protect personal liberty. The book discusses how a structure and judiciary that protects individual rights avoids the difficulty of finding exact rights, or choosing which groups get special protection (and how this is a bit contradictory since only popular "unpopular" minorities will be granted judicial special treatment). The book does a good job simplifying and explaining critiques of constitutional doctrine from libertarian and anti-administrative state scholars such as Epstein, and Hamburger.
There were a few ideas I found pretty original. In particular Barnett's reading of Chisholm as an affirmation of individual sovereignty, and Caldar v. Bull as a jurisprudential point that the sovereign people can only have been presumed to delegate powers to the government if the government is acting rationally. I found Barnett's analysis of the 14th amendment interesting. In particular, section 1 as a grant of power to the federal judiciary, and section 5 as a grant to Congress. The proposed breakdown of privileges and immunities to restrict the state legislatures (gutted by the Slaughterhouse cases), due process state courts, and equal protection state executives. I learned from the book how the Civil Rights Act was enacted under the 13th amendment's enforcement section, since many of the oppression of freedman could be understood to be an incident of slavery. When the Supreme Court read incident of slavery narrowly, the country passed the 14th amendment to clarify, and also to possibly protect Republicans who were not protected under the 13th amendment. Barnett makes an interesting point that slavery was very much about economic rights (a Carolene Products distinction that would not have been recognized), the right to own one's own labor and that the rise of the Republican party was very much tied to the rejection of slavery as a national institution, and northern states desire to not aid the return of fugitive slaves. I also liked Barnett's discussion of Chase's argument that the fugitive slave clause could not be enforced by Congress (rather it was a comity provision) since other clauses granting Congress power did so explicitly, not through the necessary and proper clause (though the Court rejected this argument in Prigg). I was surprised to learn that the popularizer of Lochner as the boogie man was actually Theodore Roosevelt.
On the other hand, I felt like the book has parts that tend to repeat other works. It traces the standard story of the progressive attack on the textual, structural protections of rights in favor of a more robust regulatory government (especially through the commerce clause and various formulations of judicial deference that Barnett traces to Thayer). It makes the same complaints about development in law that favors powerful interest groups subverting individual liberty to collect rent (in particular, through regulations or licensing requirements). In that sense, it is likely to be repetitive for those who have read in the field (though I felt like the book had taught me enough to be worthwhile). In addition, I have some serious questions about the history that is presented. For example, the book takes the standard route of citing Federalist 10, and Madison's fear of factions as a reason why the constitution is designed to be anti-majoritarian, but apparently there's some scholarship that Federalist 10 was not important until after Beard cited it in the 1920s. In the very last chapter, the conclusion also mistakenly identifies the 20th amendment as the women's suffrage amendment. The book also repeats the complaint that the 17th amendment (direct elections of senators) made the senate excessively democratic, but if I remember correctly by the time of the 17th amendment, the vast majority of states had already effectively had direct elections because their state legislatures bound their selection to elective results. The book's attempt to tie some onerous cases like Plessy to judicial deference is a bit unavailing, though it is true that many of the progressive policies upheld by progressive courts tended to favor white union men at the expense of women (Muller), and ethnic minorities (Lochner). Regardless, the book is a good introduction or refresher on a libertarian body of work critiquing the modern development of constitutional law.
There were a few ideas I found pretty original. In particular Barnett's reading of Chisholm as an affirmation of individual sovereignty, and Caldar v. Bull as a jurisprudential point that the sovereign people can only have been presumed to delegate powers to the government if the government is acting rationally. I found Barnett's analysis of the 14th amendment interesting. In particular, section 1 as a grant of power to the federal judiciary, and section 5 as a grant to Congress. The proposed breakdown of privileges and immunities to restrict the state legislatures (gutted by the Slaughterhouse cases), due process state courts, and equal protection state executives. I learned from the book how the Civil Rights Act was enacted under the 13th amendment's enforcement section, since many of the oppression of freedman could be understood to be an incident of slavery. When the Supreme Court read incident of slavery narrowly, the country passed the 14th amendment to clarify, and also to possibly protect Republicans who were not protected under the 13th amendment. Barnett makes an interesting point that slavery was very much about economic rights (a Carolene Products distinction that would not have been recognized), the right to own one's own labor and that the rise of the Republican party was very much tied to the rejection of slavery as a national institution, and northern states desire to not aid the return of fugitive slaves. I also liked Barnett's discussion of Chase's argument that the fugitive slave clause could not be enforced by Congress (rather it was a comity provision) since other clauses granting Congress power did so explicitly, not through the necessary and proper clause (though the Court rejected this argument in Prigg). I was surprised to learn that the popularizer of Lochner as the boogie man was actually Theodore Roosevelt.
On the other hand, I felt like the book has parts that tend to repeat other works. It traces the standard story of the progressive attack on the textual, structural protections of rights in favor of a more robust regulatory government (especially through the commerce clause and various formulations of judicial deference that Barnett traces to Thayer). It makes the same complaints about development in law that favors powerful interest groups subverting individual liberty to collect rent (in particular, through regulations or licensing requirements). In that sense, it is likely to be repetitive for those who have read in the field (though I felt like the book had taught me enough to be worthwhile). In addition, I have some serious questions about the history that is presented. For example, the book takes the standard route of citing Federalist 10, and Madison's fear of factions as a reason why the constitution is designed to be anti-majoritarian, but apparently there's some scholarship that Federalist 10 was not important until after Beard cited it in the 1920s. In the very last chapter, the conclusion also mistakenly identifies the 20th amendment as the women's suffrage amendment. The book also repeats the complaint that the 17th amendment (direct elections of senators) made the senate excessively democratic, but if I remember correctly by the time of the 17th amendment, the vast majority of states had already effectively had direct elections because their state legislatures bound their selection to elective results. The book's attempt to tie some onerous cases like Plessy to judicial deference is a bit unavailing, though it is true that many of the progressive policies upheld by progressive courts tended to favor white union men at the expense of women (Muller), and ethnic minorities (Lochner). Regardless, the book is a good introduction or refresher on a libertarian body of work critiquing the modern development of constitutional law.
November 16, 2017
Understanding our founding documents
This book is a great resource for helping to remind us of our founding documents the Declaration of Independence and the Constitution of the United States as a police officer and police trainer the history of these documents are often neglected in training for state statutes and procedures. To be better, more effective, fair and impartial these founding documents and what they mean to American
This book is a great resource for helping to remind us of our founding documents the Declaration of Independence and the Constitution of the United States as a police officer and police trainer the history of these documents are often neglected in training for state statutes and procedures. To be better, more effective, fair and impartial these founding documents and what they mean to American
May 2, 2021
This book made me pretty sure that I don’t want to be a lawyer. I found the premise initially interesting, but forgot what the book was about, midway through. Some of the arguments are laden with legal jargon and are difficult to understand.
May 28, 2023
Here is a question that could be the start of interesting conversation: do you believe that first come rights and then comes government? Or do you believe that first comes government and then comes rights? The careful thinker on this point will certainly recall the ringing (if oddly punctuated) statement from the U.S. Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” The Founders philosophy, then, clearly upholds the former statement, the key phrase being “unalienable rights”; “unalienable” meaning that one cannot delegate or alienate these rights to any other person or body (government).
A proper understanding of founding documents such as the Declaration requires knowledge of the historical context in which they were written, and no less does a proper understanding of this book require understanding of its context. Published in February 2016, when the author refers to “the President,” he means Barack Obama. What motivates him to write the book is the ACA, against which he recently argued in the Supreme Court. And what he wants you to think about is, in the words of George F Will’s introduction, is for “Americans to soberly consider how far their cumulative choices have taken their country from the founders philosophy.”
Knowing the historical context, I found George Will’s introduction to be smug and disingenuous. Smug, in that particular way that inheres to people who embody privilege while lecturing everyone else about the definition of freedom. Disingenuous, because the degree to which a whole lot of people were foaming at the mouth about Obamacare had a lot to do with the color of the eponymous face, as opposed to the constitutional merit of the legislation. (Those people would also foam at the mouth at the smugness of this assertion, of course. To which I say: Medicare part D. George W Bush. A gigantic and costly expansion of a government program for which everyone is compelled to pay through taxes. It’s not the same as Obamacare, but has enough similarity to demand an explanation for why the level of outrage and vitriol was so minimal by comparison to the ACA.)
So I was expecting to find a nigh-intolerable amount of rightwing cant here, and indeed, there was some of that. The author throws around assertions of what “progressives” do, as if they are all dangerous idiots with malign intent. He speaks of the ACA as being disastrous, and a tragedy, as if that were just an objective fact, and not, like, an opinion. Also, I found it obnoxious that he almost never refers just to “the Constitution;” he always calls it the “republican Constitution.” He is so robotic on this point that I doubt his sincerity in his insistence that this appellation is not meant as a partisan one. It’s true that he couldn’t be more clear in his definition of terms: a democratic constitution is one where the majority decides what rights exist and which of them will be protected, while a republican constitution protects the individual’s rights by constraining what the government is allowed to do.
On the whole, though, Barnett writes with irresistible clarity and persuasive analysis, tracing the history and evolution of thinking about individual rights versus government’s ability to compel. Ultimately he has been unsuccessful in convincing me that Obamacare is a tragedy, any more so than Lochner v State of New York was a tragedy, or for that matter the 16th and 17th Constitutional amendments. I do, however, consider the book has added to my understanding of the (lowercase) republican vs democratic dichotomy.
Did I just say he was clear? He seemed clear enough in his historical exegesis, but his overall libertarian worldview is not so clearly defended to me. Is federal regulation of working conditions a tragedy? The existence of the EPA? Income tax is extortion? Direct election of senators deprives State legislatures of a check on federal power? Why is the supposedly all-powerful and tyrannical national government such a bogeyman requiring a protective bulwark, while any social outcomes consequent to the unfettered power of capital is merely a required expression of individual liberties? It is because he is trying to convince me to adopt the viewpoint of a rich and privileged super-minority, deceiving me into thinking of myself as a freedom-loving economic agent beleaguered by the administrative state, when the truth is that my middle-class lifestyle would not even exist but for the democratic constitution he so despises.
A proper understanding of founding documents such as the Declaration requires knowledge of the historical context in which they were written, and no less does a proper understanding of this book require understanding of its context. Published in February 2016, when the author refers to “the President,” he means Barack Obama. What motivates him to write the book is the ACA, against which he recently argued in the Supreme Court. And what he wants you to think about is, in the words of George F Will’s introduction, is for “Americans to soberly consider how far their cumulative choices have taken their country from the founders philosophy.”
Knowing the historical context, I found George Will’s introduction to be smug and disingenuous. Smug, in that particular way that inheres to people who embody privilege while lecturing everyone else about the definition of freedom. Disingenuous, because the degree to which a whole lot of people were foaming at the mouth about Obamacare had a lot to do with the color of the eponymous face, as opposed to the constitutional merit of the legislation. (Those people would also foam at the mouth at the smugness of this assertion, of course. To which I say: Medicare part D. George W Bush. A gigantic and costly expansion of a government program for which everyone is compelled to pay through taxes. It’s not the same as Obamacare, but has enough similarity to demand an explanation for why the level of outrage and vitriol was so minimal by comparison to the ACA.)
So I was expecting to find a nigh-intolerable amount of rightwing cant here, and indeed, there was some of that. The author throws around assertions of what “progressives” do, as if they are all dangerous idiots with malign intent. He speaks of the ACA as being disastrous, and a tragedy, as if that were just an objective fact, and not, like, an opinion. Also, I found it obnoxious that he almost never refers just to “the Constitution;” he always calls it the “republican Constitution.” He is so robotic on this point that I doubt his sincerity in his insistence that this appellation is not meant as a partisan one. It’s true that he couldn’t be more clear in his definition of terms: a democratic constitution is one where the majority decides what rights exist and which of them will be protected, while a republican constitution protects the individual’s rights by constraining what the government is allowed to do.
On the whole, though, Barnett writes with irresistible clarity and persuasive analysis, tracing the history and evolution of thinking about individual rights versus government’s ability to compel. Ultimately he has been unsuccessful in convincing me that Obamacare is a tragedy, any more so than Lochner v State of New York was a tragedy, or for that matter the 16th and 17th Constitutional amendments. I do, however, consider the book has added to my understanding of the (lowercase) republican vs democratic dichotomy.
Did I just say he was clear? He seemed clear enough in his historical exegesis, but his overall libertarian worldview is not so clearly defended to me. Is federal regulation of working conditions a tragedy? The existence of the EPA? Income tax is extortion? Direct election of senators deprives State legislatures of a check on federal power? Why is the supposedly all-powerful and tyrannical national government such a bogeyman requiring a protective bulwark, while any social outcomes consequent to the unfettered power of capital is merely a required expression of individual liberties? It is because he is trying to convince me to adopt the viewpoint of a rich and privileged super-minority, deceiving me into thinking of myself as a freedom-loving economic agent beleaguered by the administrative state, when the truth is that my middle-class lifestyle would not even exist but for the democratic constitution he so despises.
August 19, 2023
Randy Barnett’s “Our Republican Constitution" is an important overview of the role of judicial review in our constitutional system. For decades, conservatives have inveighed against judicial review, pointing to it as antidemocratic, and contrary to the will of the people. Barnett’s book reexamines the concept of sovereignty, and contends that judicial review can actually promote popular sovereignty, properly understood.
The generally held consensus is that popular sovereignty implies that the will of the people is represented by the results of majoritarian political processes. Barnett calls this approach the “Democratic Constitution.”
The Founders, following John Locke, understood the grandeur and gravity of individual sovereignty. Barnett terms this the “Republican Constitution,” and posits the case for vigorous judicial review, as a device to protect the individual from the tyranny of the majority. The judiciary, in this account, limits the power of government, and provides a firewall for individuals, insulating them from the whims of transient majorities and influential political action groups.
Modern judicial theory- at least since Warren- emphasizes the need to protect liberties such as freedom of speech and privacy. Barnett reminds us that the Founders, again following Locke, emphasized that property rights and economic freedom are equally critical to the functioning of a just society, and are frequently imperiled by majority opinions.
Barnett’s theory of judicial review stands or falls on his notion of natural rights. Absent a recognition of rights which inhere in the person qua person, there is little to constrain any action that can claim its provenance through democratic processes; a situation which inexorably discounts individual freedom and individual sovereignty.
Barnett is right to focus some attention on the erosion of the doctrine of the separation of powers wrought by the administrative state, as well as the post-Warren disrepute showered on federalism. Conservatives and Progressive have both contributed to the breakdown of these structural guardrails for reasons of expediency. Both have a wavering commitment to judicial deference on the one hand, and federalism on the other.
Barnett’s book is timely and thought provoking. It is a prudent look at a perennial problem; however, in today’s overheated, outcomes-oriented environment, few will really ponder its long term implications. This situation is truly unfortunate.
The generally held consensus is that popular sovereignty implies that the will of the people is represented by the results of majoritarian political processes. Barnett calls this approach the “Democratic Constitution.”
The Founders, following John Locke, understood the grandeur and gravity of individual sovereignty. Barnett terms this the “Republican Constitution,” and posits the case for vigorous judicial review, as a device to protect the individual from the tyranny of the majority. The judiciary, in this account, limits the power of government, and provides a firewall for individuals, insulating them from the whims of transient majorities and influential political action groups.
Modern judicial theory- at least since Warren- emphasizes the need to protect liberties such as freedom of speech and privacy. Barnett reminds us that the Founders, again following Locke, emphasized that property rights and economic freedom are equally critical to the functioning of a just society, and are frequently imperiled by majority opinions.
Barnett’s theory of judicial review stands or falls on his notion of natural rights. Absent a recognition of rights which inhere in the person qua person, there is little to constrain any action that can claim its provenance through democratic processes; a situation which inexorably discounts individual freedom and individual sovereignty.
Barnett is right to focus some attention on the erosion of the doctrine of the separation of powers wrought by the administrative state, as well as the post-Warren disrepute showered on federalism. Conservatives and Progressive have both contributed to the breakdown of these structural guardrails for reasons of expediency. Both have a wavering commitment to judicial deference on the one hand, and federalism on the other.
Barnett’s book is timely and thought provoking. It is a prudent look at a perennial problem; however, in today’s overheated, outcomes-oriented environment, few will really ponder its long term implications. This situation is truly unfortunate.
January 9, 2021
Interesting book arguing for a different interpretation of how one should see the constitution. I'm sympathetic to Barnett's views, so largely agreeing with the premise that popular sovereignty is bad, and that when compared to securing rights, it lacks both philosophical and moral justification.
At the same time, it was unclear whether it was trying to be a narrative, at some points going to anecdotes about Obamacare, and then switching back to historical and philosophical treatise, which may make the book somewhat harder to read.
I found most of his argument persuasive, but I thought defining progressive so clearly was a little bit of an overreach and even though I don't share much intellectual ground with them, I still feel this book at times, rejected the spirit of charity.
I found the profiles of various speakers like Brandeis to be interesting, especially because history education in public school emphasizes his virtues, like free expression, while downplaying the degree to which he was a proponent of major experimentation.
At the same time, it was unclear whether it was trying to be a narrative, at some points going to anecdotes about Obamacare, and then switching back to historical and philosophical treatise, which may make the book somewhat harder to read.
I found most of his argument persuasive, but I thought defining progressive so clearly was a little bit of an overreach and even though I don't share much intellectual ground with them, I still feel this book at times, rejected the spirit of charity.
I found the profiles of various speakers like Brandeis to be interesting, especially because history education in public school emphasizes his virtues, like free expression, while downplaying the degree to which he was a proponent of major experimentation.
September 13, 2017
This is a good example of what Originalist thinking on the Constitution means. I didn't like the fact that he went on about how smart he was to overturn Obamacare and then had to backtrack and say why he lost the argument.
Basically the argument is that the Constitution has to be read as is. If you want to allow wire taps, or other types of arguments, you will have to create amendments through the voters or the Congress.
My personal opinion is closer to Louis Brandeis that the Constitution is a living, breathing document that can be interpreted by the intention of the Founding Fathers and can be updated to allow laws to exist in the present day on things that were not a part of the history of the Constitution.
I gave this a three rating because I believe the thinking is flawed, but the book was well done.
Basically the argument is that the Constitution has to be read as is. If you want to allow wire taps, or other types of arguments, you will have to create amendments through the voters or the Congress.
My personal opinion is closer to Louis Brandeis that the Constitution is a living, breathing document that can be interpreted by the intention of the Founding Fathers and can be updated to allow laws to exist in the present day on things that were not a part of the history of the Constitution.
I gave this a three rating because I believe the thinking is flawed, but the book was well done.
June 5, 2017
I found this book very thought-provoking. A key point is that the author's use of democratic constitution and republican constitution is not the same as the current Democratic and Republican parties. I agree with about 85-90%, which is rare. My one complaint is that while the author acknowledges that current day Republicans are also guilty of the abuses he mainly lays on "progressives" he seems to downplay the extent to which that is true. One example he could have cited and is glaring in omission is the "conservative" efforts to institutionalize their version of Christianity in federal law.
December 22, 2018
Set primarily in the legal quarrels over Obamacare, this book clearly outlines the philosophical and practical differences between a republican/representative republic and what has devolved into a purer democracy with an entrenched unaccountable bureaucracy. The vision of limited government securing liberties inherent in the individual citizens has been replaced with a government that grants such liberties. All branches of government have contributed to the fundamental changes we’ve experienced.
December 5, 2019
Although I disagree with parts of his thesis and his assessment, this book is a fairly interesting read and does a decent job describing the constitutional history of the United States. He does blame democrats and lifts conservatives higher and ignores a plethora of evidence that says otherwise, still it's a great read that can make any reader evaluate their understanding and application of constitutional interpretation.
November 28, 2018
Great book. Audible narration isn’t great, though. The narrator tries to do different accents when quoting others as if it was a fiction read.
There’s one minor error in the book. Women got their voting right with the 19th amendment, not the 20th - but that might just be a typo.
I recommend reading it with the The Constitution: An Introduction by Michael and Luke Paulsen.
There’s one minor error in the book. Women got their voting right with the 19th amendment, not the 20th - but that might just be a typo.
I recommend reading it with the The Constitution: An Introduction by Michael and Luke Paulsen.
July 12, 2020
(3.5/5) This is a very thoughtful examination of how constitutional structure protects freedom and promotes the common good. I didn’t find some of the arguments convincing and thought his libertarian political and economic preferences leaked too much into his description of what the founders objectively understood the Constitution to be.
June 24, 2025
pretty good read overall. randy does a good job establishing why its important for the judiciary to strike down unconstitutional actions regardless of the democratic mechanisms involved. yet he positions progressivism as the greatest threat to this thought process. recent events indicate that this belief may be partially outdated.
January 6, 2022
This is a well-written presentation of a relatively specific libertarian-style originalism. If you want more but different, Ilan Wurman's book "Debt Against the Living" does a good job of placing Barnett's perspective into the broader landscape of constitutional interpretation.
March 29, 2022
An all-time favorite. Most of Barnett's books are aimed at academia, but this one is more mass-market which makes it a much easier read. It truly helps to make sense of things that I always knew to be true but didn't quite understand how or why.
August 8, 2018
Well presented and persuasively argued. Would like more focus on the limits of judicial activism, but that does not appear to be a strong concern for Barnett.
March 12, 2020
A must read from anyone interested in knowing about the history future of our constitution.
December 31, 2020
Amendment Convention
May 30, 2024
Excellent, yet somewhat demoralizing look at how the Constitution has been perverted from its original purposes to fit politics.
June 16, 2016
Mr. Barnett makes the case that neither the federal or state governments are sovereign in the United States, instead the individual people are joint sovereigns. The discussion throughout this book is based on court cases and the rulings of judges since the founding of our nation. The main thrust is that actual democracy, majoritarian rule, can be totalitarian and that there is evidence that the constitution was written in such a way as to guard against that tendency. Yet over the years, for various political reasons, court rulings have reinterpreted those guards and made them meaningless. In concluding remarks, Barnett states that "government is instituted by the people as individuals, that presidents and congressmen are the servants of the people as individuals, and that the just powers of government must protect the rights of each and every person."
The structure of our federal government, with three separate branches, with all legislative power in only one branch, with only the enumerated powers granted to the congress for legislation, with the senate selected by state legislators, all provide guards against majoritarian rule, and even more, they provide guards against either tyranny of the legislators or tyranny of the president. My impression is that these guards were insufficient primarily due to the issue of slavery, then later the economic domination over former slaves and more recently the segregation of people into classes by laws that allow political domination by majoritarian rule. Even the bill of rights and subsequent amendments clarifying those rights were insufficient guards of our individual sovereignty, and perhaps even eroded the rights they defined, and those omitted.
Barnett's discussion of the income tax was weak. While the income tax enabled an increase in federal revenue, whether that method of taxation is a problem is not clear. He does point out that "The federal government has been able to exceed the enumerated limits on its powers by bribing or coercing the states with their own citizens’ money to use their more extensive powers as Congress sees fit". In the last 30 years, the political parties oppose each other on income tax rates, the degree of progressive rates and deficit spending, which are all related to the enumerated powers of congress, but not clearly an issue with the income tax itself.
Also, with the historical focus that is common with analysis of the constitution, the purpose and meaning of arguments presented at the time are easily misunderstood and subject to incorrect interpretations. Those founders and many generations that followed are no longer able to clarify their meaning or defend their written statements. The same comments might be applied to the court decisions cited by Barnett, but those written opinions are more complete arguments than those surrounding the constitution. Still, by citing other cases and other opinions, one might be able to present a completely different perspective than Barnett has chosen.
Overall, the book is impressive and I agree on many points. I favor individual sovereignty and oppose majoritarian rule, both by popular democracy and by our representatives in congress. I favor case by case decisions on principle and oppose conflation of issues by political parties resulting in control of government by a subset of people claiming to represent the will of the people in general. I favor limiting the federal government, and all other levels of government, to enumerated powers and oppose omnibus appropriations that hide usurpation of those limits. I am probably more extreme in my view of individual rights than Barnett in that I oppose laws that place prior restraint on individuals and prefer individual liability for their actions. Protection against potential future crime is the first step to tyranny. With Barnett, and with other contemporary writers, I favor an article V convention to propose amendments to our constitution in order to restore individual rights and sovereignty.
The structure of our federal government, with three separate branches, with all legislative power in only one branch, with only the enumerated powers granted to the congress for legislation, with the senate selected by state legislators, all provide guards against majoritarian rule, and even more, they provide guards against either tyranny of the legislators or tyranny of the president. My impression is that these guards were insufficient primarily due to the issue of slavery, then later the economic domination over former slaves and more recently the segregation of people into classes by laws that allow political domination by majoritarian rule. Even the bill of rights and subsequent amendments clarifying those rights were insufficient guards of our individual sovereignty, and perhaps even eroded the rights they defined, and those omitted.
Barnett's discussion of the income tax was weak. While the income tax enabled an increase in federal revenue, whether that method of taxation is a problem is not clear. He does point out that "The federal government has been able to exceed the enumerated limits on its powers by bribing or coercing the states with their own citizens’ money to use their more extensive powers as Congress sees fit". In the last 30 years, the political parties oppose each other on income tax rates, the degree of progressive rates and deficit spending, which are all related to the enumerated powers of congress, but not clearly an issue with the income tax itself.
Also, with the historical focus that is common with analysis of the constitution, the purpose and meaning of arguments presented at the time are easily misunderstood and subject to incorrect interpretations. Those founders and many generations that followed are no longer able to clarify their meaning or defend their written statements. The same comments might be applied to the court decisions cited by Barnett, but those written opinions are more complete arguments than those surrounding the constitution. Still, by citing other cases and other opinions, one might be able to present a completely different perspective than Barnett has chosen.
Overall, the book is impressive and I agree on many points. I favor individual sovereignty and oppose majoritarian rule, both by popular democracy and by our representatives in congress. I favor case by case decisions on principle and oppose conflation of issues by political parties resulting in control of government by a subset of people claiming to represent the will of the people in general. I favor limiting the federal government, and all other levels of government, to enumerated powers and oppose omnibus appropriations that hide usurpation of those limits. I am probably more extreme in my view of individual rights than Barnett in that I oppose laws that place prior restraint on individuals and prefer individual liability for their actions. Protection against potential future crime is the first step to tyranny. With Barnett, and with other contemporary writers, I favor an article V convention to propose amendments to our constitution in order to restore individual rights and sovereignty.
May 16, 2021
[Imported automatically from my blog. Some formatting there may not have translated here.]
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.)
January 8, 2017
Great overarching points occasionally lost in the weeds.
February 19, 2017
As usual, Professor Barnett is so thorough in both his logic and his research. Libertarianism's greatest legal scholar, in my mind.
October 15, 2023
Barnett’s attempt to ground libertarianism with originalism is both daring and humbling. Barnett justifies a sort of substantive due process view with original public meaning textualism, arguing that our government is founded on natural rights and the social compact since the Declaration of Independence where the people retain sovereignty as individuals and states rather than as a collective. Barnett’s formulation is first come rights then comes government. The fifth and fourteenth amendments explicitly guarantee due process to life liberty and property which are Lockean natural rights while the 9th and 10th amendments express the social compact via enumerated powers and federalism in that rights not mentioned in the constitution are retained by the people as individuals and by the states as privileges and immunities of citizenship. Barnett’s approach differs from current substantive due process in that it isn’t just particular rights that limit the government but a general presumption of liberty which must be overcome by a real substantial relation to a purpose granted to government. The limit of this is that while the powers of the federal government are few and defined the powers of the states are numerous and indefinite and so Barnett’s approach depends on the extent of limits on the police power enforceable by courts which effectively means negative liberties to do what has traditionally been lawful or not demonstrated to be contrary to the public good
December 19, 2016
Read the summary to see what this book is about. Basically, we desperately need to understand that individuals hold many absolute rights, and the will of the majority cannot take them away. Judges mustn't defer to the mere possibility that legislators did not intend to curtail rights, or that executives did not mean to fail to protect such rights adequately. Basically, the question comes down to this: did we form the government, which then granted us rights? Or did we have individual rights that needed protected, and then formed the government to protect those rights (granting them certain limited and delimited powers--and no more--in order to do so)? How you answer this question will direct how you understand the Constitution, how you understand the need for an "activist" judiciary (activist in the sense of protecting individual rights, and not being afraid to strike down legislation in order to do so), how you understand the mess that the twentieth-century progressive movement made of things, and more.
This book is not very clearly organized. Sometimes it's an historical overview, other times he gets into the weeds of various issues (due process, for example) without clearly explaining why. But the material itself is wonderful.
This book is not very clearly organized. Sometimes it's an historical overview, other times he gets into the weeds of various issues (due process, for example) without clearly explaining why. But the material itself is wonderful.
February 8, 2017
This book was a pleasure to read. The author convincingly argued his thesis of the original meaning and intent of our Constitution. Not only was the history fascinating (there are some fascinating facts regarding the ideas included in the Declaration of Independence, and the connections between it and the Constitution), but Professor Barnett also gave some great context for the origin of our separation of powers in government. I would recommend this book to anyone wishing to learn more about our Constitution, and/or hear a wonderful argument for constitutional originalism.
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