Countering the majoritarian difficulty.

• Author: Barrett, Amy Coney
• Position: Book review

OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE. By Randy E. Barnett. (1) New York: HarperCollins Publishers. 2016. Pp. xiv + 283. $26.99 (cloth).

In Our Republican Constitution, (3) Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett's prior work, that the government must justify incursions upon individual liberty. (4) If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, legislation does not represent the sovereign will but rather the work product of government officials who serve as the agents of individual sovereigns. The citizen is thus positioned to demand that his agents explain why legislation lies within the authority he has constructively given them to secure his natural rights.

Courts play an important role under Barnett's Republican Constitution. They provide the forum in which citizens seek protection of their natural rights from legislative infringement. Like legislators, judges serve as agents of each individual sovereign, and judicial deference to democratic majorities is "misguided and inconsistent with the most basic premises of the Constitution" (p. 18). Rather than treating legislation as presumptively constitutional, they must treat the citizen's challenge as presumptively correct. And on the merits, they must critically rather than deferentially assess the question whether the legislature has exceeded its authority, which is limited to regulation securing the "equal protection of the rights of each and every person" (p. 25). Barnett thus calls for, among other things, a return to the pre-New Deal approach to the Due Process Clause.

Constitutional scholars have long viewed judicial review through the lens of the countermajoritarian difficulty. Under the Republican Constitution, however, it is legislatures rather than courts that we should worry about. In this essay, I begin by developing the connection between Barnett's theory of the Constitution and his approach to judicial review. I then express doubt about the historical support for Barnett's approach, contend that the task he would give courts fails to account for the realities of the legislative process, and argue that he overestimates the institutional capacity of courts. I conclude by praising Barnett's attention to the often-misunderstood concept of judicial restraint. That is a point on which many can agree with Barnett, regardless whether they accept his republican take on our Constitution.

1. THE MAJORITARIAN DIFFICULTY

   Generations of constitutional scholars have grappled with the so-called countermajoritarian difficulty. (5) The power of judicial review enables courts to interfere with the majority's preferences. Because the baseline in our republic is set in favor of democracy, the argument runs, courts should generally defer to what the majority wants. Courts apply heightened scrutiny to statutes implicating fundamental rights or suspect classes, but outside of that context, they are reluctant to interfere with the outcome of the democratic process. They give federal and state legislatures wide berth in enacting social and economic legislation and apply only minimal scrutiny when evaluating federal statutes for consistency with the limits on federal power.

   In attacking this state of affairs, Barnett starts with its premise: that we should be concerned about the countermajoritarian nature of judicial review. Instead, Barnett claims, we should be concerned about the majoritarian nature of legislation. Democratic majorities pose a consistent threat to minority rights.

   Barnett points out that many of the Founders had reservations about democracy. Madison's essay on "The Vices of the Political System of the United States," which matured into Federalist No. 10, details the concerns. Every society contains factions that will pursue their own self-interest. (6) When a faction includes a majority of citizens, what is to stop it from unjustly infringing upon the rights of those in the minority? Majorities will give into the temptation to self-deal by, among other things, enriching themselves at the expense of the minority. (7)

   A republican form of government was the Founders' solution to the excesses of democracy. On a view of our Republic that Barnett dubs "the Democratic Constitution," the Founders countered the risk of democratic excess by opting for indirect rather than direct democracy (pp. 18-19). Direct democracy carries a greater risk of runaway majorities and is in any event impracticable in a country the size of the United States, even as it existed at the time of the Founding. Thus the Democratic Constitution filters its commitment to majority rule through the senators and representatives whom the majority votes into office. Structural features like federalism, bicameralism, equal state representation in the Senate, and differing terms lengths in the House and Senate were among the mechanisms the Founders employed to mute the influence of faction. But the Democratic Constitution does not eschew the importance of majority rule; it aims simply to temper the risk that the majority will get carried away. The majority vote of those senators and representatives represents, albeit indirectly, the majority will of the People. Hence government regulation is legitimate as the product of majority rule.

   Barnett rejects this view of the Constitution in favor of what he calls "the Republican Constitution." On Barnett's account, the Founders did not design our Republic to enable elected representatives to "re-present" the will of the majority. (8) For one thing, such an approach would be inadequate to counter the risk of factions and democratic excess. For another, the Founders' mistrust of democracy indicates that preserving majority rule was not in fact their primary concern. Drawing on, among other things, the Declaration of Independence and the Virginia declaration that inspired it, Barnett claims that the Founders' purpose in forming the United States was the preservation of the pre-existing natural rights of the People--each and every one. (9) These natural, inalienable rights include the rights to life, liberty, and property. (10)

   In the design of the Republican, as opposed to the Democratic, Constitution, elected representatives serve to secure the natural rights of the individual sovereigns who comprise "We the People," not to carry out the mandate of the majority that voted them into office. The legitimacy of government rests on the consent of the governed, and the Republican Constitution conceives of that consent as flowing from individuals rather than the people as a group. Given that the consent of these individuals is only constructive, it ought to extend no farther than that to which a rational person would consent. A rational person would give up his liberty interests only if doing so advanced the larger goal of securing his life, liberty, and happiness. (11) That line defines the scope of authority conferred by the People (the principals) to government officials (their agents).

   Thus the republican vision of the Constitution counsels courts and constitutional scholars to worry less about preserving the product of the democratic process than about the way the democratic process is apt to trample the rights of individuals. Because the point of government is to secure the pre-existing natural rights of the People, legislation is not presumptively legitimate simply because it has majority sanction. On the contrary, regardless of that majority sanction, it is presumptively illegitimate to the extent that it infringes upon the natural rights of individual sovereigns. Courts should not give statutes a presumption of constitutionality when they review them; instead, the state should bear the burden of justifying legislation as lying within its limited authority to secure the life, liberty, and property of the People. Nor should courts be unduly deferential when reviewing the state's proffered justification. They should return in Due Process and Equal Protection challenges to the more demanding form of "rational basis" review practiced by courts in the Lochner era. And because structural constraints are often more effective than substantive limits in preserving individual liberty, courts should put teeth in the doctrines that enforce limits on federal legislative power. (12) As Barnett explains, "when the liberty of a fellow citizen and joint sovereign is restricted, judges as agents of these citizens have a judicial duty to critically assess whether the legislature has improperly exceeded its just powers to infringe upon the sovereignty of We the People" (p. 25).

2. THE HISTORICAL CASE FOR JUDICIAL ENFORCEMENT OF THE REPUBLICAN CONSTITUTION

   Given Barnett's stature as an originalist, one might come to Our Republican Constitution expecting an originalist argument, and the book's first chapter, which is devoted to founding-era history, gives it that flavor. Yet Barnett does not contend that the Constitution's text demands acceptance of either the republican vision or the more searching form of judicial review for which he advocates. The book is less about what the Constitution's original public meaning requires than about what is normatively attractive. Barnett claims it is desirable to understand the Constitution as a document designed to secure the natural rights of individual sovereigns, and that one accepting that view should find it similarly desirable for courts to play an active role in ensuring that the government not exceed...