Me the people.

• Author: Mazzone, Jason
• 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

Randy Barnett begins Our Republican Constitution (3) with a story of "triumph and tragedy" (4) in the Supreme Court case of NFIB v. Sebelius. (5) The triumph: five justices agreed that the minimum essential coverage provision of the Affordable Care Act exceeded Congress's powers under the Commerce Clause; thus, however broadly Congress might regulate interstate commerce, it cannot impose economic mandates. (6) The tragedy: five also agreed that Congress's taxing power supported the statutory provision. "Although we had saved the enumerated powers scheme of the Constitution for the country," Barnett concludes, "we had lost our fight to save the country from Obamacare" (p. 14).

The account reveals a good deal about the potential of and limits to Barnett's project. In a nutshell, Barnett views courts as simultaneously dangerous to and essential for "securing the liberty and sovereignty of we the people." On the one hand, Barnett complains, judicial decisions produced the consolidation of governmental power and the truncated rights that Barnett laments. On the other hand, fixing the problem requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett's failure to perceive the limits to judicial recognition of constitutional rights when judicial power itself is consolidated. Thus, in celebrating state authority to adopt different regulatory programs and the benefits of citizen foot-voting in response, Barnett writes that such "experimentation is impossible at the national level when adopting a one-size-fits-all regulatory scheme" (p. 176). Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett's constitutional vision. Consolidated judicial power--where ultimate authority rests in the Supreme Court of the United States--does not serve well to generate expansive rights for "We the People." (7) It is even less suited to Barnett's own individualistic version of rights--a sort of "Me the People"--in which each of us is sovereign and courts exist to vindicate our personal liberties. (8)

Part I of this essay briefly describes Barnett's account of constitutional structure, individual rights and the role of courts. Part II sets out why consolidation of judicial power stands as an impediment to the version of government authority and individual rights Barnett advocates. Part III discusses aspects of the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor that, perhaps surprisingly, point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett advocates. The conclusion extends the analysis to suggest some broader lessons about Barnett's work and the structure of courts--and the implications for Our Constitution.

1. STRUCTURE, RIGHTS, COURTS

   In Barnett's description, the Constitution of the United States is "primarily a structure that was intended to protect the individual sovereignty of the people" and "[o]nly secondarily, and incompletely, does it protect any particular individual rights retained by the people" (pp. 167-168). Barnett contends that federalism ensures that most laws that affect liberties will be made at the state level where individuals are empowered by foot-voting such that "subnational competition" with respect to economic and social policies "imposes a salutary constraint on state governments by threatening an exodus of dissenting citizens to other states." (pp. 173,177,179). Separation of powers also serves to "secure the sovereignty of the people" by keeping the executive branch in check (though legislators tend to shift power and responsibility to the executive and so the checking role is not necessarily robust) (pp. 204-205).

   For Barnett, structural constraints depend upon on courts policing the contours of power; the whole scheme collapses if courts abandon this key role. Most importantly, federalism only works to protect liberties if courts "hold Congress to its enumerated powers" (p. 188). Alas, in the modern age "judicial abdication" has undermined federalism constraints and the result is a runaway national government whose excesses undermine individual liberty. Barnett reports that, notwithstanding some isolated bright spots and the "partial revival" of federalism under the Rehnquist Court, from the time of the New Deal the courts have mostly given Congress "free rein to regulate or prohibit every economic activity in the country" (pp. 189-202). The cost has been an erosion of state autonomy. Courts have also failed to halt the growth of executive power as evidenced by the rise of the legislature-enabled modern administrative state, a development with "dangerous" consequences for the sovereignty and rights of the people (pp. 204-205).

   As for constitutional rights, Barnett says they are merely emergency "lifeboats" for when "the constitutional structure proves inadequate" (p. 168). In the post-New Deal era, however, the courts, responsible for launching the lifeboats and saving us from the sinking structure, have also failed to perform their rights-protecting role. In deferring to federal and state power, courts have wrongly "honor[ed] the will of the people, as expressed by a majority of a handful of 'legislators,'" rather than doing what they should be doing: "securing the rights of the people, each and every one" (pp. 126-127, emphasis omitted). Wrong-headed theories of Thayerian deference (9) and of counter-majoritarian difficulties (10) have left courts frozen, unable to "protect ... rights from being unreasonably restricted by the majority" (p. 162). As with federalism, though, it isn't all doom and gloom. On occasion, courts have risen to the task of safeguarding liberties from the "majoritarian difficulty" of popular will. Brown v. Board of Education, (11) for example, represents "a redemption of the Republican Constitution" in Barnett's view (p. 160).

   Barnett offers a series of solutions for restoring his Republican Constitution. Most of his stock is placed in "an impartial judiciary" (the subject of the book's final chapter). Courts, Barnett says, will play "a vital role" on the remedial side. By courts, Barnett means the federal courts (12) and in particular the U.S. Supreme Court. (13) At the outset, only courts can protect structure. "Obtaining the benefits of federalism requires federal courts to develop doctrines that identify the outer limits of Congress' enumerated powers" (p. 224). Likewise, "the Court must overcome its reluctance to enforce the separation of powers within the federal government--a reticence that has undermined the rights of the sovereign people by allowing the rise of an executive-administrative state with the prerogative powers of a sovereign king" (p. 257). While in the bleak alternative world of the "Democratic Constitution" courts defer to popular majorities and exercise judicial review with restraint, the Republican Constitution has "a completely different picture of judges" (p. 24). Judges themselves are the "servants of the people" with the "primary duty" of keeping government power in check so as to protect individual rights. And rights are "best protected" by "judicially enforcing the structural constraints on federal power, including the separation of powers and the limits on the powers of Congress" (pp. 111-112). When courts step up, the republic is saved.

   While structure, reinforced by judicial decisions, offers the best safeguard for rights, Barnett recognizes that structural safeguards might themselves fail: when they do, down we shinny to the lifeboats. But these are no ordinary lifeboats whose passengers huddle until rescue arrives. Instead, courts play an aggressive role in protecting rights directly. With respect to that aspect of the republican constitution, Barnett wastes no time on the humdrums of "freedom of speech," (14) "unreasonable searches and seizures," (15) or "cruel and unusual punishments." (16) Instead, courts exist to evaluate all laws--federal, state, local--for compliance with due process. Barnett thus trumpets the approach of (certain) pre-New Deal Justices who "viewed the Due Process Clause[s] as providing a procedure by which a person ... may challenge a[ny] law as outside the 'just powers' of Congress or state legislators to enact" (p. 227). As such, he says, "before a sovereign individual can justly be deprived of his or her 'life' (by capital punishment), 'liberty' (by imprisonment), or 'property' (by penalty or fine), the 'due process of law' requires a judicial evaluation of whether a statute is within the power of Congress or state legislatures to enact" (p. 227). In particular, courts keep a check on "irrational and arbitrary laws," which, in Barnett's view, are not really laws at all and thus invalid. He explains that "[although the sovereign people can consent to be governed, when their consent is not expressed but implied they cannot be presumed or supposed to have consented to a regime in which a legislature can act irrationally or arbitrarily" (p. 228). Thus "the process of applying a law to a particular person includes a fair opportunity to contest whether a statute (or administrative regulation) is within the 'proper' or 'just power' of a legislature to enact and therefore carries the obligation of a law" (p. 228, emphasis omitted). Because "an irrational or arbitrary statute is not within the just powers of a republican legislature," courts must strike it down (p. 228).

   Here, though, some chickens come home to roost. Barnett complains about...