In defense of constitutional republicanism: a reply to criticisms of "Our Republican Constitution."(in this issue, p. 31, 61, 83, 113, 143, 175)

• Jurisdiction: United States
• Author: Barnett, Randy E.
• Date: 01 January 2017

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

I am supremely grateful to the University of Illinois College of Law's Program in Constitutional Theory, History, and Law, directed by my friend Kurt Lash, and to Constitutional Commentary and its editor Jill Hasday, for the honor of convening and publishing this symposium on my book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. (2) I am also enormously appreciative to the authors of the papers that appear in this volume: Jud Campbell, Jack Balkin, Jason Mazzone, Amy Coney Barrett, Sanford Levinson, and my colleague Lawrence Solum. Their commentaries are uniformly insightful, constructive, and stimulating. They have caused me to think more deeply about the many issues they have raised--so many issues that this reply can only touch on the highlights. Rather than attempt to be comprehensive, I aim instead to use their critiques as a springboard to clarify the claims I make in Our Republican Constitution and, where possible, to look for common ground.

JUD CAMPBELL

There is much to admire and like in Jud Campbell's article Republicanism and Natural Rights at the Founding. (3) I found his treatment of Founding Era sources discussing natural rights and social contractarianism to be nuanced and fascinating. And I agree with large swaths of what he says. Where I may disagree, however, would require an exegesis of Founding Era sources that would necessitate a deeper dive into those sources than I am prepared to make or could present here if I was. So let me confine myself to two points he may want to think about for his future work, and a general observation about the qualified nature of his thesis.

First, while he admirably presents a wide diversity of sources in a remarkably coherent way, he never attempts to resolve some of the fundamental differences in approaches to which he alludes. While I share his view that, when it came to first principles, the Founding generation agreed on much and that their disagreements should not be exaggerated, disagree they did: especially on the scope of the implied powers of the federal government. That was what the debate over the first bank was all about.

And yet, at the end of his paper, Campbell is seemingly able to reach a unitary conclusion regarding their views of the status of natural rights. As he concludes, "[m]ost retained natural rights were therefore individual rights that could be collectively defined and exercised by legislatures, with virtually no room for judicial oversight. In the end, Founding-Era natural rights were not really 'rights' at all...." (4) I think his conclusion is a little too confident, even in light of the discourse he so admirably summarizes, but also in light of some items he does not mention.

I will limit myself to one set of statements from Madison. In a footnote of his essay, Campbell quotes Madison's Bill of Rights speech where he said that "it is for [Congress] to judge of the necessity and propriety" of laws. (5) And Madison does make this statement in the context of discussing why certain means--like the use of general warrants as a means of raising revenue--should be restricted by adding certain positive rights, which Campbell calls "constitutional rights." Here, the end of "raising revenue" is undoubtedly a proper one as it was enumerated.

Yet, in his bank speech delivered to that very same Congress, Madison invokes the Ninth Amendment "as guarding against a latitude of interpretation" (6) of the Necessary and Proper Clause, with respect to whether a monopoly grant to a bank was properly within the power of Congress. One possible way to reconcile these positions is that, as these statements were made during a congressional debate, whether or not a monopoly is "proper" is solely for the Congress to debate and decide, and not for the courts.

Years later, however, in a letter to Spencer Roane responding to Chief Justice Marshall's opinion in McCulloch upholding the National Bank Act that Madison had signed into law as president, Madison condemned "the high sanction given to a latitude in expounding the Constitution," and in particular to "a legislative discretion" as to the means "to which no practical limit can be assigned." (7) And he then expressly criticized Marshall for his assertion of judicial restraint: "Does not the court also relinquish, by their doctrine, all control on the legislative exercise of unconstitutional powers?" Equating "necessity" with mere convenience, wrote Madison, would place the matter "beyond the reach of judicial cognizance.... By what handle could the court take hold of the case?" (8)

So Madison apparently saw an important role for courts in holding Congress to its enumerated powers--a role so important that it could be cited against an interpretation of the Necessary and Proper Clause that was not judicially administrable. And he took issue with Marshall's reasoning on this question in a case that reached an outcome with which he agreed!

Further, it is revealing that, when Marshall later sought in his series of pseudonymous newspaper essays to defend himself from this charge, he denied (perhaps disingenuously) equating "necessary" with "convenience": "The court does not say that the word 'necessary' means whatever may be 'convenient,' or 'useful.'" (9) He then specifically rejects the view that the Court should have exercised judicial restraint or "modesty" and deferred to Congress's own assessment of the scope of its powers:

Would Amphyction himself be content with the declaration of the Supreme Court that, on any question concerning the constitutionality of the act, It is enough to say "it is not consistent with judicial modesty" to contradict the opinion of Congress, and "thus to arrogate to themselves the right of putting their veto upon a law" ...? (10) To the contrary, Marshall maintained, it "was incumbent on them to state their real opinion and their reasons for it." (11)

In a later essay, Marshall doubled down on the Court's assertion that it would fall to the judiciary to assess whether Congress was exercising an enumerated power in good faith, or is instead acting pretexually:

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, "should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal ... to say that such was not the law of the land. (12) Marshall also implicated the concept of good faith in defense of using "convenient" as a synonym for "necessary": "When so used, they signify neither a feigned convenience nor a strict necessity; but a reasonable convenience, and a qualified necessity...." (13)

A judicial willingness to invalidate pretextual assertions of power for the common good is exactly what I am advocating in Our Republican Constitution (pp. 231-245). While I would not want to place too much weight on particular statements by Madison, Marshall, or anyone else, I think the matter of the judicial role in holding legislatures to their "just powers" was, at minimum, more contestable, or at least in flux, at the founding than Campbell's unqualified conclusion seems to assert.

My second point concerns the role that the concept of "presumed consent" played in discussions of consent, which Campbell addresses only in passing. For me, this was a key discovery that I believe has long been overlooked in discussions of the role played by natural rights in limiting legislative power. As Justice Samuel Chase explained in Calder, the only way implied consent of the individual to legislative power can be "presumed" or deemed to be unanimous, is if legislatures of general powers are limited by the unenumerated "great first principles." (14) For example, a law "that punished a citizen for an innocent action," or "a law that destroys, or impairs, the lawful private contracts of citizens," or "a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B" is merely an "ACT of the legislature (for I cannot call it a law)." (15)

Why not? Given the consent of the governed to legislatures of general powers, why are such "acts" not "laws"? Because, said Chase, "[i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it" (16) In other words, because the unanimous consent of the people is merely "presumed," such consent is by its nature limited, even without expressed limitations on powers being included in a written constitution.

In a like manner did Attorney General Edmund Randolph use such reasoning to conclude that a national bank was beyond the power of Congress to enact. In his opinion to President Washington, Randolph contended that even a textually unqualified grant of legislative power "does not affect any of those paramount rights, which a free people cannot be supposed to confide even to their representatives," (17)

In short, the fact that the consent of each individual can, at best, only be presumed provides a limit on the powers that can be claimed by legislatures who presume to govern on his or her behalf. Although the role that judges may play in enforcing such a limit is a separate question, the inherently bounded nature of presumed consent is an important conceptual prerequisite to the judicial duty to nullify ultra-vires statutes.

Finally, Campbell couches his critique carefully in ways that make it more difficult to rebut, but...