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July 22nd, 2017

Insight

Who the people?

Glenn Reynolds

By Glenn Reynolds

Published April 10, 2017

Who the people?

Much that is confusing about today's political divisions has its roots in a simple disagreement, says Georgetown Law Professor Randy Barnett. It has to do with two different conceptions of what the phrase "We the People" in the Constitution means. And, in fact, the two different conceptions, which have lived side-by-side since the beginning, have produced, in effect, two different versions of the Constitution.

Barnett's new book, Our Republican Constitution: Securing The Liberty And Sovereignty of We The People,

(Buy it at a 58% discount by clicking here or order in KINDLE edition at a 48% discount by clicking here)

draws its title from one of these. According to Barnett, we have a democratic Constitution - in which "We the People" refers to the electorate as a whole - and a republican constitution, in which "We the People" refers to us all, as individuals. These characterizations don't have much to do with the modern Democratic and Republican parties, which are happy to adopt whatever arguments work in the political moment. Instead, the characterizations deal with longstanding disagreements, going back to the framers, about the powers of majorities and the protection of minorities.

The framers, in general, were suspicious of pure democracy, which they regarded as inherently unstable and prone to corruption, and to the abuse of those who couldn't muster a majority of votes. ("Two wolves and a sheep voting on what to have for dinner," as the saying goes.)

Thus, the republican constitution, which places great emphasis on limiting the powers of the majority. The powers of government were limited, and separated among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.

During the Progressive Era of the 19th century, these limitations on majority power chafed Progressives who were in the legislative majority. They wanted to make big changes, and the Constitution's limitations made that hard. Progressive legislation kept losing in the courts, who kept pointing out that it was inconsistent with Constitutional limits on government power, and Constitutional protection of things like private property rights.

This led to a rule of judicial restraint that was the beginning of the democratic constitution, where majority power reigned supreme. Its first major appearance was in an article by Harvard law professor James Bradley Thayer, arguing that courts should not strike down laws as unconstitutional, so long as they could imagine a reasonable person thinking them valid. Only in cases of clear mistake should judicial review lead to laws being held unconstitutional.

This thinking found its first Supreme Court application just a few years later in the 1896 case of Plessy v. Ferguson, upholding segregation under the famous "separate but equal" formulation (though this phrase was not part of the opinion). Echoing Thayer, Justice Brown wrote "We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable." Also at that time, as Barnett notes, writers stopped talking about courts' duty to strike down unconstitutional laws and started talking about their power to do so. Not exercising a duty is a dereliction; not employing a power could be characterized as self-restraint.

Nonetheless, in other cases, the Court applied the republican constitution, striking down (in Buchanan v. Warley) a Kentucky racial zoning law backed by a majority, and (in Bailey v. Alabama) barring enforcement of labor contracts for black people that, in reality, amounted to involuntary servitude. In both cases, the importance of individual rights trumped the majority's desire.

To some degree, of course, who champions which approach depends on the political situation: When Democrats dominated, Supreme Court decisions that stood in their way were denounced as illegitimate and undemocratic, to the point where FDR tried to "pack" the Court with sympathizers. When a liberal Supreme Court issued decisions that were less popular, meanwhile, critics like Robert Bork wrote darkly of the "countermajoritarian difficulty" and judicial activism, and showed a new enthusiasm for the ideas of Thayer.

In fact, courts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. Barnett suggests that they should do their jobs more often, and in this he is certainly correct. Will it come to pass? That is less clear.

Regardless, Randy Barnett has provided a clear, well-argued, and persuasive argument as to why courts should be more willing to enforce the Constitution. I highly recommend it to anyone interested in the Supreme Court and the Constitution.

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Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself and is a columnist at USA TODAY.

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