I’m sorry that I wasn’t able to get to Randy Barnett’s new book sooner. Our Republican Constitution is a fantastic contribution to the cause of constitutional freedom, and should be near the top of anyone’s list who wants to learn about the crucial constitutional issues of the day. It’s simultaneously succinct, clear, and thorough, and—if I may be so vain—is an excellent companion to my own book, Conscience of the Constitution. This is particularly because Barnett includes much material that I do not discuss—especially his discussion of Chisolm v. Georgia. When I came to that part of the argument while writing Conscience, I admit that I panicked at the thought of trying to explain it, and decided to just skip it. Barnett manages to cover it in just a few pages, accurately, succinctly, and in a way that gets to the heart of a case that can be pretty rough slogging even for experienced constitutional lawyers.
Another highlight of the book for me was Barnett’s point that the Progressive judges and law professors changed the terminology of judicial protection so that instead of referring to the courts’ “duty” to strike down unconstitutional laws, they came to call it a “power”—and thereby changed our conception of the judges’ role. “Powers can and should be exercised with discretion or ‘restraint,’” Barnett observes, “but we don’t speak the same way of our duties.” That’s right—it was through this reconceptualization that the Progressives were liberated to argue that the courts should decide in an essentially political way whether or not to strike down unconstitutional laws. New Dealers laffed and laffed when the Supreme Court said in United States v. Butler that the judge’s job is to “lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” They insisted that the courts are political bodies that ought to ditch that aspiration to objectivity in order to serve higher social goods. But in fact, the Butler Court was right, and by thinking of judicial review as a “power” instead of a “duty,” later generations of judges have helped perpetuate the myth that judicial review is a form of “activism.”
Barnett’s book is sprinkled with little gems, too. I particularly loved his citation to a 1931 law review article of which I’d been unaware (this is on pp. 150-51) which commented on the Supreme Court’s abandonment of the presumption of liberty. If there’s a smoking gun in the “Switch In Time” Era—well, there isn’t, but this is about as close as you can get. Holy cow! And his analogy at the top of Chapter 6 is especially apt: the Constitution’s authors were like shipwrights constructing a vessel that they hoped would survive severe storms. After presenting their finished design to the “passengers,” the people refused to board until lifeboats—the Bill of Rights—were also installed. “While the designers of the ship did not all share these concerns, they appreciated that they needed to mollify potential consumers if they were going to get enough of them aboard.” So they added the Bill of Rights. But we are wrong to focus so much attention nowadays on the lifeboats, and so little attention to the structural devices of the Constitution that—if they were had been properly maintained, instead of allowed to rust as they have been—would help to keep us afloat today.
Probably what I liked best is what I’ve always liked best about Barnett’s work—his simple and clear explanation of how secular natural law theory works. Natural law is not supernatural law, and it is not a set of arbitrary preferences. It refers to the principles “that dictate how society ought to be structured, in the very same way that such natural laws dictate how buildings ought to be built or how crops ought to be planted.”
There are a few parts I thought could have been better; I’m not persuaded that Prigg v. Pennsylvania was wrongly decided, and certainly not that Justice Story “abdicated” his duty in that case. And I think the terminology of “Democratic Constitution” versus “Republican Constitution” may deter some readers who might otherwise be sympathetic—although Barnett does take care to emphasize strongly that the Republican Party is just as much to blame for our constitutional crises today as is the Democratic Party. He also omits the citizenship clause from his discussion of what he calls the Fourteenth Amendment’s “Federalism 2.0,” and in one place says the NFIB v. Sebelius decision “invalidated” part of Obamacare under the Spending Clause, when it would be more accurate to say that it indulged in one of its creative “saving constructions” to interpret the Act in a way that did not restrict federal funds (when it plainly did). But these are exceptionally tiny details.
Francis Bacon once said that some books are to be tasted, others chewed and digested, still others gobbled up. Barnett has now written one of each. The Structure of Liberty is an advanced examination of political philosophy. Restoring the Lost Constitution is a sophisticated but readable argument for the libertarian understanding of our fundamental law. Our Republican Constitution is a smooth read that you can devour in a couple days, and that will give you a fine introduction to the direction our nation is heading in, and what we must do to correct it.
Our Republican Constitution is an excellent place to start for those who want an overview of the fundamental constitutional clash of our time. In fact, I would recommend that non-lawyers who want to get a grip on these issues begin with Damon Root’s book Overruled, which examines several specific subjects, then proceed to Barnett’s book which explores the underlying dichotomy behind all those cases, and from there to my own Conscience of The Constitution, or, if you’re a little more ambitious, to Richard Epstein’s Classical Liberal Constitution for advanced thoughts. Together, these books present the case for constitutionally limited government that—as Jefferson said—will restrain people from injuring each other and leave them otherwise free.