The individualist Constitution: libertarian legal superstar Randy Barnett challenges conservative judicial orthodoxy.

• Author: Root, Damon
• Position: Randy Barnett's "Our Republican Constitution: Securing the Liberty and Sovereignty of We the People" - Interview

In 2012 Chief Justice John Roberts led the U.S. Supreme Court in upholding the constitutionality of the Patient Protection and Affordable Care Act. "It is not our job/' Roberts wrote in National Federation of Independent Business v. Sebelius, "to protect the people from the consequences of their political choices." With those deferential words, Obamacare was saved from legal destruction.

Most conservatives today remain outraged by Roberts' opinion. But according to Georgetown law professor Randy Barnett, one of the architects of the legal challenge to Obamacare, those conservatives don't really understand what it is they're railing against. In that case, Barnett writes in his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, "the chickens of the conservative commitment to judicial restraint [came] home to roost." For far too long, Barnett maintains, too many legal conservatives, from John Roberts on down, have championed judicial deference to majority rule at the expense of the judiciary's duty to enforce the Constitution and act as a check against the other branches of government. Conservative legal orthodoxy itself, in other words, played a central role in allowing Obamacare to survive.

Barnett is now on a mission to upend that orthodoxy. "The Obamacare decision had a very galvanizing and chastening impact on conservatives generally, and I believe caused them to begin to rethink this reflexive acceptance of a progressive concept of judicial restraint," Barnett says. "This book is intended to offer my proposed approach to the appropriate role of judges going forward."

Barnett, a professor of legal theory at Georgetown University Law Center and the author of nine previous books, including Restoring the Lost Constitution: The Presumption of Liberty, spoke with Senior Editor Damon Root in February about the republican Constitution, the specter of judicial activism, the legacy of Justice Antonin Scalia, and why he worries that "winter is coming" to the U.S. Supreme Court.

reason: The title of your new book is Our Republican Constitution. You say that you are using the term republican in a non-partisan manner. How are you using the term?

Barnett: The thesis of the book is that there are two different approaches to the Constitution, the republican one and the democratic one. They're each based on different conceptions of "We the People." If you take "We the People" as a group, and you're concerned with "We the People" governing, then the only way that the will of the people can govern is by majority rule. So then anything that gets in the way of majority rule is suspect and potentially illegitimate. Which includes judges getting in the way. Judges are not accountable, they're not elected, and if they get in the way of the will of the people there is something wrong there. That's the democratic Constitution.

If you take "We the People" as individuals, as I believe the Declaration of Independence does, then the purpose of government, according to the Declaration, is to secure the rights of "We the People," each and every one of us. Then government is the servant of the people, and the function of judges--who are also servants of the people--is to fairly adjudicate disputes between members of the sovereign people and their servants. People as a group yields completely different judges than people as individuals. "We the People" as individuals yields a republican Constitution and in the book I maintain that the Constitution we have is a republican Constitution.

reason: You stress the idea that the rights of the American people predate the existence of the American government. Why?

Barnett: The Declaration of Independence says that all persons are created equal and they are endowed by their creator with certain inalienable rights. So the Declaration says, first comes rights and then comes government to secure these rights. That is the republican vision that led to the U.S. Constitution.

reason: What role do the Reconstruction Amendments--the 13th, 14th, and 15th Amendments--play in your conception of the Constitution? Barnett: The initial Constitution, though it was republican and though it was not democratic, was highly imperfect. It left democratic rule at the state level free enough to impose slavery on some members of their populations. Eventually, as everyone knows, this led to intense conflict and a new anti-slavery Republican Party, and eventually a Civil War, finally culminating in that Republican Party passing amendments to the Constitution that did not make the Constitution perfect, but did make it much more republican. It now protected individuals from majorities in their states where previously those protections were very, very few in the Constitution.

reason: You're closely associated with the legal philosophy known as originalism, which says that the Constitution should be interpreted according to its original meaning. What's wrong with the idea of viewing the Constitution as a living document, or at least as a document that's flexible enough to adapt and...