Academic journal article Constitutional Commentary

Countering the Majoritarian Difficulty

Academic journal article Constitutional Commentary

Countering the Majoritarian Difficulty

Article excerpt

OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE. By Randy E. Barnett. (1) New York: HarperCollins Publishers. 2016. Pp. xiv + 283. $26.99 (cloth).

In Our Republican Constitution, (3) Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett's prior work, that the government must justify incursions upon individual liberty. (4) If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, legislation does not represent the sovereign will but rather the work product of government officials who serve as the agents of individual sovereigns. The citizen is thus positioned to demand that his agents explain why legislation lies within the authority he has constructively given them to secure his natural rights.

Courts play an important role under Barnett's Republican Constitution. They provide the forum in which citizens seek protection of their natural rights from legislative infringement. Like legislators, judges serve as agents of each individual sovereign, and judicial deference to democratic majorities is "misguided and inconsistent with the most basic premises of the Constitution" (p. 18). Rather than treating legislation as presumptively constitutional, they must treat the citizen's challenge as presumptively correct. And on the merits, they must critically rather than deferentially assess the question whether the legislature has exceeded its authority, which is limited to regulation securing the "equal protection of the rights of each and every person" (p. 25). Barnett thus calls for, among other things, a return to the pre-New Deal approach to the Due Process Clause.

Constitutional scholars have long viewed judicial review through the lens of the countermajoritarian difficulty. Under the Republican Constitution, however, it is legislatures rather than courts that we should worry about. In this essay, I begin by developing the connection between Barnett's theory of the Constitution and his approach to judicial review. I then express doubt about the historical support for Barnett's approach, contend that the task he would give courts fails to account for the realities of the legislative process, and argue that he overestimates the institutional capacity of courts. I conclude by praising Barnett's attention to the often-misunderstood concept of judicial restraint. That is a point on which many can agree with Barnett, regardless whether they accept his republican take on our Constitution.

I. THE MAJORITARIAN DIFFICULTY

Generations of constitutional scholars have grappled with the so-called countermajoritarian difficulty. (5) The power of judicial review enables courts to interfere with the majority's preferences. Because the baseline in our republic is set in favor of democracy, the argument runs, courts should generally defer to what the majority wants. Courts apply heightened scrutiny to statutes implicating fundamental rights or suspect classes, but outside of that context, they are reluctant to interfere with the outcome of the democratic process. They give federal and state legislatures wide berth in enacting social and economic legislation and apply only minimal scrutiny when evaluating federal statutes for consistency with the limits on federal power.

In attacking this state of affairs, Barnett starts with its premise: that we should be concerned about the countermajoritarian nature of judicial review. Instead, Barnett claims, we should be concerned about the majoritarian nature of legislation. …

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