Randy Barnett's critique of democracy (and John Marshall?).

• Author: Levinson, Sanford Victor
• 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).

INTRODUCTION: AN UNFORTUNATE TITLE

There is much that is interesting and worth discussing in Randy Barnett's new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. (3) However, the title of his book, especially for academic readers, greatly disserves the argument he is making and unnecessarily provokes peripheral objections, perhaps including this one. As a matter of fact, Barnett's book is a worthy complement to Richard Epstein's 2014 magnum opus, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, (4) Whatever one thinks of Epstein's substantive ideas--and I assume they are largely congruent with Barnett's own--there is no doubt that Epstein gives the reader an absolutely accurate guide as to where he is coming from and where he is going. Where he is coming from, briefly, is what he accurately defined as the central liberal tradition associated with such philosophers as "Hobbes, Locke, Hume, Madison, and Montesquieu" (p. xi). One might also include, of course, such later philosophers as John Stuart Mill, whose principal book is titled, after all, On Liberty, and the late Robert Nozick, whose Anarchy, State, and Utopia offers what I assume Barnett finds a sympathetic account of the minimalist state that even libertarians should accept. Epstein was obviously writing for a sophisticated academic audience, which presumably would be aware of the difference between "classical liberalism" and the "liberalism" linked to the contemporary Democratic Party. Barnett, on the other hand, is publishing what is very much a trade book designed for a wider audience, and perhaps he believed that too many potential readers would be scared off or otherwise alienated by the very idea that they were being asked to agree with anything meriting the label "liberal." To the extent this is true, it is an unfortunate commentary on the assumptions about the political illiteracy of contemporary Americans. In any event, it might help to explain why Barnett prefers the confusing term "Republican Constitution."

To be sure. Barnett (like Epstein before him) notes that members of the founding generation were more than a bit skeptical about democracy and frequently used the term "republican" as the alternative to that view. To put it mildly, that term is highly problematic with regard to providing any specific definition. "There is not," former President John Adams wrote in 1807, "a more unintelligible word in the English language than republicanism." (5) That being said, it is hard to escape the widespread use of the term both in American discourse and, just as importantly, the analyses of American historians especially over the past half-century. (6) In his magisterial overview of the latter, Daniel Rodgers, focusing on the use of the term particularly by legal academics such as Frank Michelman, Cass Sunstein, and Morton Horwitz, summarized its importance as follows:

"[Republicanism" was swept up as shorthand for everything liberalism was not: commitment to an active civic life (contra liberalism's obsession with immunities and rights), to explicit value commitments and deliberative justice (as opposed to liberalism's procedural neutrality), to public, common purposes (contras liberalism's inability to imagine politics as anything other than interest group pluralism). (7)

It is not surprising, then, that Epstein noted that the framers he (and Barnett) choose to focus on "did not embrace the now fashionable 'republicanism' that allows the government to demand personal sacrifice or even individual valor in the service of some higher, overriding vision of community good." (8) And, it is important to emphasize, "community good" in this context means more than extraction of taxes to pay for what economists refer to as "public goods," i.e., goods like national defense, dams to protect against the flooding of rivers, and the like. They require public funding precisely because their benefits cannot be limited only to those who are willing to pay for them through a market. All of us can "free ride" on the general protection provided by missiles and submarines or the specific protection against floods or other natural disasters. Thus, only coercive taxation will provide the funds necessary to procure the general benefits, and it is completely legitimate to make persons pay for goods that they clearly and unequivocally benefit from.

This is very different, obviously, from providing public funding for goods that can reasonably be sold through a market and limited only to those who can afford to pay for them (such as medical care, housing, food, or education, for starters). Defense of the latter, including the inevitable redistribution involved in taxing the haves to pay for benefits that will flow to the have-nots, requires moving beyond "classical liberalism." After all, a classic trope in American thought condemns as a paradigm case of injustice "tak[ing] property from A, and giv[ing] it to B." (9) Antagonism to such redistribution is at the heart of Epstein's classic book Takings. (10) "Property" in this context applies to far more than real estate; libertarians view much taxation as the equivalent of theft inasmuch as it is taken by the state from (have?) A's to give to have-not (or, at least, politically well-situated) B's.

It is not clear how much Barnett's "Republican Constitution" is truly receptive to such redistribution. None of the cases he applauds involves B's receipt of funds from A. This may, however, simply reflect the fact that the Randy Barnett who is the leading academic voice for a systematically libertarian perspective--as revealed in his earlier distinguished writings (11)--has written a considerably different book, in both tone and substance, for more general readers. So be it, though I suspect that other academic readers like myself will rue his decision. In any event, any reader who expects any discussion of the "republican" basis of the Constitution (as distinguished from a more "liberal" one) will be disappointed.

Perhaps similar market considerations counseled against simply titling the book The Anti-Democratic Constitution, although that, too, would be accurate. He pays me the tribute of noting my own book Our Undemocratic Constitution, (12) which argues that our Constitution, even as amended after 1787, does not survive serious analysis under twenty-first century understandings of democratic political theory. Moreover, both of us agree that those who framed the document in 1787 scarcely described themselves as sympathetic to "democracy." Elbridge Gerry undoubtedly spoke for many of his fellow delegates in Philadelphia when he proclaimed that "[t]he evils we experience flow from the excess of democracy," as did Virginia Governor Edmund Randolph when he similarly traced "the evils under which the U.S. laboured" to their origins "in the turbulence and follies of democracy" (p. 57). If that is the diagnosis of our political illness, then one surely would not expect "democracy" as such to be adopted as the treatment. And, of course, it was not. What I regard as a bug, though, Barnett accepts as an attractive feature.

Barnett is thus similar to the many critics of my own book who reminded me, as they almost certainly unintentionally quoted the slogan of the John Birch Society, that the Framers adopted a "republic and not a democracy, and we should keep it that way." In this context, a "republican" government is not meant to contrast with "liberal," as was the case with the historians whose work was assessed by Daniel Rodgers, but, instead, to contrast with "democratic." Barnett does not seem to disagree with my descriptive analysis. Indeed, he adopts with characteristic exuberance a consistently anti-democratic posture, expressing general contempt for the idea of collective consent of the governed even as he privileges what he calls the sovereignty of each and every individual, about which more anon.

Whatever title he wishes to give it, his argument is certainly an important one, which should be grappled with, though it is important to be clear about what embracing "democracy" entails. If, for example, "democracy" is identified with support of unfettered majority rule, there are in fact few devotees. Perhaps Jeremy Waldron fills that niche, but, for better or worse, he has few allies in his insistent attacks on judicial review and the protection of vested rights (and, even more, creation of new rights) ostensibly linked to such review. For better or worse, most contemporary "democrats" are "liberal democrats" of one kind or another who, as do Barnett and Ronald Dworkin, "take rights seriously" even as they also generally support governance by the majoritarian "consent of the governed." To put it mildly, these dual commitments may sometimes be in tension with one another, but that simply underscores the complexity of intellectual life. As Waldron notes in his recent collection of essays, classical republican thought does not emphasize the necessity that rulers be directly accountable to the community in any systematic way, though, on the other hand, they should be motivated by a concern for the general communal welfare. (13) Modern liberal constitutionalism, on the other hand, places much more reliance on elections as mechanisms for disciplining "representative" agents and providing the basis for legislation that reflects the preferences of majorities, even if there are constitutional limits on the extent to which those preferences should always be honored.

Since the title cannot possibly be justified in terms of its fidelity to the explicitly "republican" tradition of Western, or even Anglo-American political thought, save for the sound-bite references to framers who...