This is a grim moment for the release of Randy Barnett’s new book on the Constitution. Vital signs one might consult to judge the health and potency of a conservative or right-libertarian reading of our founding document range from mixed (at best) to a gentle squiggle shy of flat-lining.
The Republican Party’s frontrunner is not only as far from a conservative figure as the party has come close to nominating in decades, he is also an obvious authoritarian manqué, a wannabe caudillo-type. The Democrats are having a tighter than expected race between the living embodiment of center-left cronyism and a self-identified democratic socialist, and of course the sitting Democratic president is no friend of any interpretation of the Constitution its authors might have recognized. A great friend of the Constitution on the Supreme Court, Antonin Scalia, has just died, and whatever disagreements over fine points of Constitutional law he and Barnett might have had, there are decent odds that his replacement could be downright hostile to the views Barnett promotes.
What are those views? Barnett argues that American history can be characterized as a battle between a ‘Republican’ vision of the Constitution, in which the natural rights of citizens take precedence over the government, and a ‘Democratic’ vision, in which the interests of the government take precedence over individual rights. These visions have often, though certainly not always, aligned with the platforms of the national parties that share their names.
An important advantage possessed by friends of the Republican vision is that it is (mostly) borne out by a fair reading of the document itself, and certainly by the Lockean document that preceded it, the Declaration of Independence, which unambiguously asserts that "Governments are instituted among Men" to "secure these rights"—namely, though not exclusively, the rights to "Life, Liberty, and the pursuit of Happiness." The Democratic vision is assailed by enemies like Barnett for having at its heart an amoral majoritarianism: If the popular will should not be restrained by dusty old documents like the Constitution or out-of-date theories like "natural rights," then in practice a majority faces no obstacles in arbitrarily denying the rights of inconvenient individuals or minority factions.
Friends of the Democratic view naturally reject such an indictment, and tend to understand their actions in light of a vision of the general will derived from Rousseau, in which government embodies publicly spirited collective action—government is, in a widely circulated (though weakly attributed) phrase, the things we choose to do together. The prerogatives of nongovernmental associations and individuals are not universally toxic, but they do often provide shelter for ancient prejudices and vested inequalities. As society progresses toward greater equality, it is no great shame that churches or business owners sometimes have to bend before the government’s promotion of social justice.
Another way of describing these two great political forces is that the first embodies the spirit of the Glorious Revolution of 1688 and, later, the American Revolution, while the second descends from the spirit of the French Revolution. Barnett says that the "principal purpose" of his book is to contribute to the revival of our constitutional heritage—of the earlier, more correct Republican interpretation of the document, challenged at the outset by the slaveholding South, and later by progressives who, for all their differences in other respects, adopt essentially the same majoritarian logic as did Stephen Douglas. In Barnett’s account, after a long battle to establish beyond doubt the Lockean, Republican character of the Constitution, culminating in the 13th, 14th, 15th, and 19th Amendments, many gains were blown away in a withering Democratic assault that continues to the present day.
In the course of this great civic battle, both sides have had plenty of chances to be shortsighted and opportunistic. Barnett takes particular aim at conservatives who in recent decades have called for "judicial restraint," pointing out that such a doctrine was originally favored by progressives demanding that a more Republican court accede to the wishes of democratic majorities. While tactically a defensible response to the activist, progressive Supreme Court of much of the second half of the twentieth century, Barnett argues that the doctrine has been a strategic disaster for conservatives, discouraging judges from a duty to defend the Constitution in the face of majoritarian pressures, and culminating in Chief Justice Roberts’ saving construction of the Affordable Care Act.
Barnett has a gift for the clear exposition of complicated ideas, and curious, intelligent, but non-expert readers will learn much about the battle for the soul of the Constitution from this book. The book also sheds light on some lesser-known byways of American history—I was fascinated to read of the career of Chief Justice Salmon P. Chase, complete with his staring down a murderous, pro-slavery mob as a young lawyer. It in no way detracts from Barnett’s literary accomplishment to point out that few readers will be persuaded of everything they read here. For my part, considering the current condition of our politics, Barnett’s call for a convention of the states to consider new Constitutional amendments seems inadvisable. Much could be done through such a mechanism to improve the Republican character of our government, to be sure—but the results of a convention could quite easily run in the opposite direction.
It ain’t easy out there for a Constitutional conservative in 2016. Then again, these things can change quickly. Only a few years ago, during the peak of the Tea Party days, all of the populism on the right was directed toward far more salutary public goals than at present. Another cause for optimism is that the second-place candidate for the GOP nomination is a passionate friend of a Republican Constitution. Should the convention this July be forced to go to a second ballot, Ted Cruz is by far the most likely to win the party’s nod.
Whoever carries forward the banner of Republican constitutionalism will face great challenges of statesmanship: how to inspire citizens to love a multi-century old document, or to rally to a doctrine of natural rights no longer taught in most schools. Barnett’s book is a fine place to look for help.