Republican constitutionalism.

• Author: Solum, Lawrence B.
• Position: Book review

OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE. By Randy E. Barnett. (2) New York: HarperCollins Publishers. 2016. Pp. xiv + 283. $26.99 (cloth).

INTRODUCTION: "REPUBLICANISM" IN CONSTITUTIONAL DISCOURSE

In Our Republican Constitution, (4) Professor Randy Barnett articulates a vision of republican constitutionalism grounded on a conception of individual sovereignty; the central function of a republican constitution is the protection of the liberty of "We the People, each and every one." (5) Although the conception of individual sovereignty is a recent development in Barnett's work, the theme of liberty runs throughout Barnett's work over his whole career and is especially prominent in two prior books, The Structure of Liberty (6) and Restoring the Lost Constitution. (7)

The key development in Our Republican Constitution is the articulation of two competing conceptions of American constitutionalism, a republican conception and a democratic conception. (8) Although much of the book is historical and expository, the central aim of the book is to develop a narrative of republican constitutionalism for those Americans who are committed to limited federal power, a robust doctrine of separation of powers, and protection of the natural rights of citizens. This vision is contrasted to an opposing narrative of democratic constitutionalism that would attract those who are drawn to plenary and virtually unlimited national power, the administrative state, and a limited conception of judicially enforceable unenumerated rights. Barnett does not hide his cards: he is for republican constitutionalism and against its democratic rival.

This essay brings the ideas presented in Our Republican Constitution into juxtaposition with two other important ideas in the broad tradition of republican constitutional thought. The first of these ideas is virtue (or human excellence) in the classic or Aristotelian sense of that word. The second idea is liberty as that concept was understood in republican political thought. Once these two ideas are brought into conversation with the notion of individual sovereignty, we can begin to glimpse a revised vision of republican constitutionalism. Although this vision has much in common with that offered by Professor Barnett, there are differences as well.

The central aim of this essay is explication of a republican conception of constitutionalism that is related to but different from the version offered by Barnett. But at the very outset of that exploration, we encounter a problem. The word "republican" (either large or small case "R") is ambiguous: it has more than one conventional semantic meaning. (9) The ways in which "republican" is used in American constitutional discourse connect to the civic republican tradition in political thought (10) and to the Republican Party. (11) The civic republican tradition itself has a long history, from Aristotle to classical Rome, renaissance Italy, and the Whig tradition in English politics. (12) And the use of the term "Republican" in connection with American party politics also has a long history, as the Republican Party itself has changed over time.

As used in academic constitutional scholarship, "republican" and its variations are theoretical terms, employed in the specialist discourses of constitutional theory, political science, history, and philosophy. It would be remarkable and unexpected if "republican" had a single meaning in all of these academic contexts; in part, the technical academic meanings refract the various meanings associated with the history of the term in the evolution of political thought and party politics. Given these complications, it is unlikely that contemporary theorists currently agree on a set of necessary and sufficient conditions for the application of the theoretical phrase "republican constitutional theory." But in the absence of a clear concept, we risk talking past one another.

Our Republican Constitution articulates a vision of "republican" constitutionalism, but some critics have objected that Barnett's use of the term "republican" differs from both the understanding of "republican" in the civic republican tradition as that tradition influenced the early American republic and "Republican" in the history of the Republican Party (or really "parties" (13)) in the United States. (14) And some critics might even argue that Barnett does not understand "civic republicanism" as it existed in the Founding era or that he fails to grasp the constitutional stance of the contemporary and historical Republican Party. Of course, Barnett makes it clear that he is using the phrase "republican constitutionalism" in a stipulated sense (p. 27), so these criticisms are obviously incorrect if they are read literally. Barnett is aware that his usage of the word "republican" is different from other usages, and it seems highly likely that his critics know that he is not asserting that his vision of republican constitutionalism is identical to the "civic republicanism" of the Founding or the orthodox view of the Republican Party today or at any particular period in American history.

What is going on? Why does Barnett want to claim the word "republican" for his normative constitutional vision? And why would his critics want to deny him use of this term, insisting instead that he use other words, such as "liberal" or "libertarian"? (15) Demanding clarity is a legitimate and important scholarly move, but there is no lack of clarity in Barnett's deployment of the term "republican" as a label for his constitutional theory. Barnett and his critics could simply stipulate definitions and then move on, but they do not. Why not?

There is another way to conceptualize Barnett's use of the term "republican" and his critics' resistance to this move. In my view, Barnett and his critics are engaging in what philosophers of language call "metalinguistic negotiation" (16)--the process by which the meaning of words like "republican" and phrases like "republican constitutionalism" are contested (adversarially) or negotiated (cooperatively). I will use the phrase "metalinguistic contestation" to refer to the process of metalinguistic negotiation in its adversarial (as opposed to cooperative) form.

A central aim of Barnett's Our Republican Constitution is to engage in metalinguistic contestation over the meaning of the phrase "republican constitution" by articulating a normative constitutional theory and showing the connections between that theory and various uses of the words "republican" and "republicanism" in both American history and contemporary constitutional politics. In other words, Barnett aims to infuse the phrase "republican constitution" with the normative content provided by his vision of constitutional theory. His effort at metalinguistic contestation is aimed at intellectuals and political leaders associated with the contemporary Republican Party--some of whom may be academics but most of whom are not. Barnett is articulating a vision for republican constitutionalism for Republicans and contrasting that to a vision of democratic constitutionalism associated with Democrats. He is entering into contemporary constitutional politics from a perspective rooted in constitutional theory and history, but he speaks to a contemporary audience from a contemporary perspective.

Barnett's metalinguistic strategy is narrative in form. He constructs a grand "republican narrative" (p. 250)--a story about American constitutional development that associates his normative theory of constitutionalism with the idea of a "republic" in the sense in which a republic is contrasted with "majoritarian democracy" (p. 58). Barnett's narrative aims to create an association between his metalinguistic proposal for the meaning of the phrase "republican constitution" and the political identity of readers who affiliate with the Republican Party or vote for Republican candidates. If Barnett's book succeeds, the political identity of being a "Republican" will come to be associated with endorsing the "republican constitution" and opposing the "democratic constitution."

One might be tempted to conflate Barnett's use of narrative in metalinguistic contestation with the kind of intellectual history that is associated with writings by professional historians about "civic republicanism," (17) but this would be a grave conceptual error. Barnett is not trying to unearth the historical meaning of the phrase "republican constitution" in the early republic or later--rather, his aim is to engage in metalinguistic contestation that creates new meaning for that phrase. Structurally, Barnett's move is similar to the attempt by progressive constitutional scholars to associate "civic republicanism" with a contemporary progressive constitutional theory. (18)

Thus, it should come as no surprise that Barnett did not use the phrase "Our Liberal Constitution" as the title for his book--despite the urging of critics that he do so. (19) Given the contemporary political valence of the term "liberal," that title would have been counterproductive, a laughable error of authorial judgment. Indeed, it seems unlikely that any members of the intended audience for the book would bother to read it, if it had that title, whereas a book entitled "Our Republican Constitution" might grab their attention. Members of the Republican Party will not endorse "Our Liberal Constitution"--because the contemporary meaning of the word "liberal" in political contexts is diametrically opposed to their political commitments. (20)

My aim in this paper will not be to engage directly in metalinguistic contestation over the phrase "republican constitutionalism." Instead, for the purposes of this paper, I will treat "republican constitutional theory" as a family resemblance concept. (21) There is a variety of positions in constitutional theory that are called "republican." Some of the positions that...