The Past Isn’t Always Prologue


Review of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, by Randy Barnett

New York: HarperCollins Publishers, 2016

Randy Barnett is a sincere and passionate libertarian who has been preaching aggressive judicial enforcement of individual rights and personal liberty for well over two decades. He came to prominence partly by touting the Ninth Amendment as a possible source of judicially discoverable non-textual rights, for advocating a “New Originalism” whereby judges should protect rights by constructing meaning from vague text, and more recently as the leading opponent of the individual mandate in the Affordable Care Act. His new book is his latest effort to advocate that rights come before government and that a strong judiciary, federalism structures, and a clear separation of powers, are all necessary to bring back what he labels our old, and now mostly discarded, Republican Constitution. Although the book spends most of the time on the past, Barnett is also concerned with our future and how we can return to the inalienable rights ideals of the Declaration of Independence and the limited government principles held by our Founding Fathers.

Our Republican Constitution is a rich book with many different and important themes. Other scholars, most notably Jack Balkin, have critiqued Barnett’s use of history as well as his sharp dichotomy between the Republican and Democratic constitutional traditions. To Barnett, the Republican tradition emphasizes the autonomy and sovereignty of the individual over majority excesses and the importance of natural, inalienable rights. The Democratic tradition, on the other hand, prioritizes government bureaucrats infringing personal liberty with deferential judges winking and nodding along the way. Balkin argues that Barnett fails to accurately describe both historical traditions and his political theory generalizations are imprecise. I’ll leave it to those two and the readers of Balkin’s review to sort all that out.

This review focuses on Barnett’s repeated and strong calls for aggressive as opposed to deferential judicial review and the contrast between the importance of Barnett’s normative views of what is best for our country (which are provocative and worth considering) with the unpersuasive way he tries to justify and implement those views through constitutional analysis and history. I hope that the next time Barnett offers his vision for a better America he does so in a manner that directly addresses our current and almost hopeless political state of affairs, and that he leaves constitutional analysis, and the contested baggage that such an analysis brings, mostly out of it.

1. Heroes and Villains

Barnett’s prose is always transparent and concise making his theories accessible to lawyers and non-lawyers. The heroes and villains in Our Republican Constitution are therefore easy to spot. Judges who stood up to progressive majorities and invalidated a bevy of economic laws from 1900-1936 are the good guys while deferential judges like Oliver Wendell Holmes and the post-New Deal judges who upheld virtually all economic legislation are the bad guys. Barnett advocates for strong judicial engagement where state and federal officials bear the burden of proof to justify to judges all laws infringing personal liberty (which are virtually all laws) (pp.231-32). Below I provide the two most significant examples used in the book to support this plea for much stronger judicial review than allowed by our current legal practices.

A. Race

To make his case that aggressive judicial review is needed to safeguard our individual rights, and that deferential judicial review leads to many sins, Barnett discusses at length the infamous Plessy v. Ferguson, in which the Court upheld forced segregation in Louisiana in the late nineteenth century (pp. 120-23), and NFIB v. Sebilus, which upheld the Affordable Care Act (in the first of numerous challenges to the law) (pp. 9-18). Although Barnett argues that both decisions exhibit the dangers of deferential judicial review, his descriptive accounts do not capture the essence of either case.

Barnett argues that the Justices who upheld Louisiana’s segregated railroads did so primarily because of judicial deference to “the exercise of collective popular sovereignty in which the majority …can vote to restrict the liberties of the few…. This deferential stance would soon come to be called ‘judicial self-restraint’” (p. 122). Throughout the book Barnett uses Plessy as an example of judicial restraint leading to majoritarian racist practices being rubberstamped by much too passive judges.

But Plessy was less about judicial deference to majority will than Justices with a certain set of personal (and by today’s standards) heinous values about race and equality. After all, this allegedly deferential stance was missing from the Justices just twenty years earlier when the Court in the Civil Rights Cases struck down Congress’ efforts to prohibit racial discrimination in places of public accommodations, an aggressive judicial decision which, had it gone the other way, might have made Plessy unnecessary. But even if the North lacked the will to enforce the federal prohibitions against segregation contained in the Civil Rights statutes, the Justices’ decision to strike down these progressive laws in 1875 was no more a product of an aggressive or passive stance towards judicial review than Plessy’s rubber stamping of Jim Crow. Both cases reflected the Justices’ values about race, not judicial posture. For example, Justice Bradley, the author of the opinion in The Civil Rights Cases, said in his personal diary that laws “depriving white people of the right of choosing their own company would be to introduce another kind of slavery.” Specific and personal value judgments, far more that pre-existing legal presumptions, drive Supreme Court decisions, especially in nationally important cases.

Barnett suggests that, while judicial restraint leads to bad results in racially charged cases, strong judicial engagement leads to good cases like Brown v. Board of Education (p. 120). But, Brown had less to do with grand theories of judging than with fortunate timing (the death of Chief Justice Vinson and the appointment of Chief Justice Warren), and a cold war recognition among the Justices that legal apartheid embarrassed us abroad and hurt us at home. Suggesting that either judicial deference or judicial engagement were the key factors in Plessy or Brown makes the book’s heroes and villain narrative easier to spin but ignores the real world values unrelated to judicial role that actually drove both decisions.

Moreover, the Court’s unnecessarily aggressive affirmative action decisions of the last thirty years, where a Court that played a major role in fostering and then maintaining legal segregation, stepped in to prevent measures designed to make up for that sorry history, exemplifies some of the problems with strong judicial review. By omitting the Court’s affirmative action jurisprudence when telling the story of the Court and race, Randy ignores a significant obstacle to his theory.

B. Health Care and Justice Roberts

Throughout the book, Barnett tries to paint Chief Justice Roberts as a deferential villain whose decision in NFIB v. Sebilus exemplifies the catastrophic consequences of non-aggressive judicial review. In fact, Barnett goes so far as to say that “the core” his book “is about the answer to [the] question” how “we had lost our fight to save the country from Obamacare.” (p.14).

Barnett argues that, although the Chief Justice joined with the four other conservatives to hold that the individual mandate was beyond Congress’ commerce clause powers, and also struck down under the Spending Power the Medicaid expansion part of the law, the Chief ultimately refrained from invalidating the entire ACA because, in the Chief’s own words, “it is not our job to protect the people from the consequences of their political choices.” (p. 129). Barnett then equates the Chief’s position in NFIB with the notion, ascribed generally to James Bradley Thayer, that “neither can the power of the courts save minorities from ruin at the hands of the majority.” (p. 129).

This story about Chief Justice Roberts and the ACA fits in well with the book’s portrayal of good and bad judges but has little to do with the reality of the Chief’s judicial style. There is no plausible argument that Justice Roberts is a believer in Thayer type deference. He has voted to strike down moderate (and locally prescribed) racial balancing in public schools, the important sections of the Voting Rights Act agreed to by a unanimous Senate and a Republican President, significant campaign finance reform laws, and numerous other state and federal statutes under the First Amendment (such as laws prohibiting so-called crush videos). We may never know why Justice Roberts upheld the individual mandate as a valid tax but in light of Roberts’ aggressive and consistent invalidation of other important laws, it is most unlikely judicial restraint was the motivating factor.

There may be good reasons to prefer strong judicial review over judicial deference to other political actors (though I am not persuaded), and, as I discuss in the next section, the book provides other arguments separate from accounts of racial discrimination and the ACA, but the sorry history of segregation and resulting race-relations in this country, and the Court’s refusal to strike down the ACA, are much more about the substantive values of the Justices and perhaps complicated political calculations than ongoing battles over the proper judicial role.

2. Economic Legislation and Judicial Engagement

Barnett presents a more persuasive critique of judicial deference when discussing the Court’s post-New Deal hands off attitude towards virtually all economic legislation. The canonical case is Williams v. Lee Optical, where a lower court invalidated an Oklahoma law requiring a new lens prescription whenever someone wanted to purchase new eyeglasses, a law preventing low cost opticians (as opposed to more expensive ophthalmologists and optometrists) from providing a valuable and cost effective service (p.223). The Supreme Court reversed the lower court, announcing that any conceivable rational basis for the law would be enough to satisfy constitutional review even if that basis was not the real purpose of the legislation. Since Lee Optical, federal courts have not engaged in serious review of this kind of anti-competitive legislation. Citing a handful of cases litigated by the pro-business and libertarian Institute for Justice (pp. 232-233), Barnett shows that in some circumstances laws based entirely on anti-competitive legislative capture by strong interest groups are upheld by judges uninterested in any form of meaningful judicial review.

This critique is forceful and perhaps judges have been too willing to uphold these kinds of protectionist statutes. But the argument would have been more persuasive had the book wrestled with the obvious downsides of allowing judges to distinguish between pure rent seeking and more justifiable legislation. Sometimes the differences between the two will be quite difficult to spot, leading to judicial over-reaching. Prior to the New Deal, before the Court adopted its hands-off approach to economic legislation, the Supreme Court issued some truly awful decisions. For example, in Hammer v. Dagenhart, the Court prevented Congress from prohibiting the movement in interstate commerce of goods made by child labor, leading to children working long hours in horrible conditions in factories and mines for almost two decades. Eventually the decision was reversed but thousands of children suffered unnecessarily.

The conventional wisdom is that the Court struck down over 200 state and federal laws dealing with working conditions, union/employer relationships, and the safety of the workplace between 1900 and 1936, and not all of those laws involved rent seeking or congressional abuse of federal power. Given that unfortunate history, it is not surprising the pendulum swung in the other direction.

Moreover, virtually all of the laws cited in the book as being the result of rent-seeking are state or local laws (pp. 231-233). This presents several problems for Barnett’s critique of deferential judicial review. First, he extols the virtues of federalism and state and local autonomy throughout the book but it is hardly consistent with states’ rights to have unelected, life-tenured federal judges exercising strong control over thousands of state laws governing the complex universe of local business relationships.

Second, there is a good solution to this problem which does not entail federal supervision of local economic priorities. Justice Don Willett of the Texas Supreme Court has written eloquently on the benefits of state judges exercising serious review of economic legislation under state Constitutions while remaining quite deferential under the Federal Constitution. This approach is desirable because it leaves the responsibility for achieving the proper balance between the appropriate exercise of the police power and inappropriate rent seeking to accountable state officials using state standards which might well vary from state to state. Given Barnett’s eloquent defense of local governmental autonomy, he should have at least discussed Justice Willett’s proposed solution to this problem.

3. Is the Past Prologue?

At the end of his book, Barnett makes a number of concrete suggestions for how to improve our country and bring forward a “Republican Constitution.” He would like to establish term limits for Congress, repeal the 16th Amendment which allowed Congress to impose an income tax; and he would permit a majority of state legislatures to veto any federal law or regulation (p.255). He argues that these proposals, along with much more aggressive judicial review, are the “starting point” for further discussion on how to restore the “original meaning” of the Constitution and address the problems that “have arisen since its enactment.”

The original meaning of our Constitution, whatever that may have been, was adopted by homogenous white males who owned slaves and treated women and wives as little more than their own personal property. No wonder these privileged folks wanted governmental measures to protect their possessions and their status. No wonder they were afraid of political parties and factions representing all the people (as opposed to rich individuals). Their emphasis on private property and slavery as vital economic institutions (and a way of life) needs to be translated in a way that fits today’s world but Barnett barely makes that effort, making some of his book read more like a lament for the good old days (for folks like him and me) and less a persuasive account of how to make our future better.

Moreover, judicial review at the time of the Founding was thought to be quite limited and in the most famous statement of the topic in history, Federalist No. 78, Alexander Hamilton said such drastic judicial supervision would be employed only if there is an “irreconcilable variance” between a law and the Constitution. This judicial reluctance to strike down laws continued well after the Founding. Between 1803 and 1856, the Court failed to strike down a single federal law or executive action and even as to state measures the Court’s reach was limited. Aggressive as opposed to deferential judicial review may or may not provide a better solution to today’s problems but, as the original Originalists like Judge Bork and Michael McConnell used to argue, the original idea was for limited, modest, and rare judicial invalidations of the decisions of other political actors.

All of this is not to say that Barnett fails to raise interesting and provocative ideas about how to better govern ourselves. Maybe our federal government is too big, maybe we should focus more on individual sovereignty, and maybe (though it pains me to say it) federal judges should try and unilaterally impose such restraints under the guise of the rule of law. But if all of that is true, it is not because we were better off in 1787 or 1868 when white, privileged males ran the country with impunity but because today’s world would be better off governed in that manner. Our Republican Constitution asks serious questions about our current failing politics but the answers to those complex problems must be justified by today’s values and priorities (and our diverse culture), not contested history lessons from the past. I hope Barnett uses his many talents and his important voice to look forward in his next book and leave the past mostly behind.

Posted on 20 June 2016

ERIC SEGALL is the Kathy & Lawrence Ashe Professor of Law at the Georgia State University College of Law and the author of Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, (Praeger Publishers, 2012).