Libertarian Georgetown law professor Randy Barnett‘s latest book, Our Republican Constitution, faces scrutiny from Jeremy Rozansky in the latest Commentary magazine.
Barnett frames American legal history as a contest between a small-r republican right and a small-d democratic left, and urges conservatives and libertarians to recover what he calls a “republican” theory of jurisprudence. That recovery would be a sea change, requiring that conservatives abandon the theory of “judicial restraint” that has been at the center of conservative thinking about the courts for nearly half a century.
Who, Barnett begins by asking, is sovereign in the American system? The answer, of course, is “We the People,” but that immortal phrase can be interpreted in several ways. The one Barnett prefers is rooted in the writings of John Locke. In this view, the individual is sovereign—he has natural individual rights and gathers with others to form governments to protect those individual rights. The efficacy and morality of these governments, therefore, should be evaluated based on their ability to secure and sustain those rights. This is the Republican Constitution. The Democratic Constitution, rooted in the ideas of Jean-Jacques Rousseau, embraces an idea of the collective as sovereign and sees “We the People” as the whole that rules the whole. The will of the majority is the ultimate governing force.
The Republican Constitution originates in the first two paragraphs of the Declaration of Independence. These paragraphs explain the sources of individual rights in the laws of nature and Nature’s God. When the time came to create a national government in line with this theory that individuals are sovereign, the framers believed that the greatest threat to this new order based on natural law was tyranny. So they set up structural stumbling blocks to the tyranny of the majority and enshrined in both the Constitution and its amendments explicit limits on federal power and explicit acknowledgements of individual rights.