In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, gangsta Professor Randy E. Barnett explains how two understandings of “We the People” lead to two understandings of the Constitution. Throughout the book, Professor Barnett, aka Bae, demonstrates how one of those understandings led to Chief Justice John Roberts’ devastating decision in the constitutional challenge to Obamacare.
While Our Republican Constitution is an easier read for those who don’t regularly read constitutional scholarship, it in no way compromises depth. In what Reason’s Nick Gillespie describes as a “legal thriller,” Barnett reintroduces a great number of concepts about which he has written elsewhere, and seamlessly ties them into his newer, more holistic, explanation of the Constitution’s individualistic nature and the view of the “We the People” that leads one to view it thusly.
As I write in The Weekly Standard,
In Barnett's view, the two visions of the Constitution stem from two definitions of "We the People"—that composed of "individuals," and that which functions as "a group, as a body, as a collective entity."
This, in turn, leads to two views of popular sovereignty, or the right of the people to rule. Under a republican Constitution, sovereignty resides "in the people as individuals," and government exists to secure the rights of the people—rights that preexist government. As Barnett often says, "first come rights and then comes government." Representatives in government "must not themselves use their delegated powers to violate the very rights they were empowered to protect." According to this view, the separation of powers exists not to "protect the prerogatives of Congress," but "to secure the sovereignty of the people."
Under a democratic Constitution, popular sovereignty rests in the hands of majorities (not every single person because, in practice, every member of We the People agrees on nothing), who impose their will through government. Barnett explains that this view does allow government to protect some rights of individuals, "but not so many as to thwart unduly the will of a majority." This understanding is enshrined in the words of presidents such as Theodore Roosevelt, who contended that judges have a duty to "follow, rather than thwart, public opinion," and "to keep their hands off such statutes when they have any reasonably permissible relation to the public good."
Barnett concludes that our Constitution is a republican one—but not “republican” according to the modern understanding—rather, the historical one.
The format doesn’t stray far from Bae’s usual. Every assertion he makes is supported by tons of historical context and evidence, and the book ends with actionable ways to protect the Constitution.
He also introduces plenty of new Barnettisms that are sure to be repeated. Among the most compelling is his comparison of constitutional amendments to “lifeboats.”
"...the few rights that are enumerated in the text of the Constitution are like the lifeboats on a ship. They were never intended by the ship designers to be used, but they certainly may be when the constitutional structure proves inadequate."
SO MUCH YAS!
While I found his assertions thoroughly convincing, one need not agree to find value in his book. Our Republican Constitution will challenge those who disagree with Barnett to strengthen their arguments.
Days after the 2012 election, I attended the Federalist Society’s National Lawyers Convention to learn more about the Constitution. As a college sophomore, I had already taken numerous classes about constitutional law, but I still couldn’t conceive any logical consistency. I began to wonder whether there actually was a man behind the curtain, or whether our Constitution was not as great a document as I’d been told. I hoped some speaker would tell me what I was missing. Barnett turned out to be that speaker. (You can watch that very speech here.) Upon reading Bae’s Restoring the Lost Constitution: The Presumption of Liberty, I learned he was similarly disillusioned about the Constitution early in his career.
Years after that speech, and after reading hundreds of pages of Barnett’s work, I’m still learning from him. Whether you’ve read as much of his work or none of it, Our Republican Constitution has a lot to teach.