Academic journal article Constitutional Commentary

Randy Barnett's Critique of Democracy (and John Marshall?)

Academic journal article Constitutional Commentary

Randy Barnett's Critique of Democracy (and John Marshall?)

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).


There is much that is interesting and worth discussing in Randy Barnett's new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. (3) However, the title of his book, especially for academic readers, greatly disserves the argument he is making and unnecessarily provokes peripheral objections, perhaps including this one. As a matter of fact, Barnett's book is a worthy complement to Richard Epstein's 2014 magnum opus, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, (4) Whatever one thinks of Epstein's substantive ideas--and I assume they are largely congruent with Barnett's own--there is no doubt that Epstein gives the reader an absolutely accurate guide as to where he is coming from and where he is going. Where he is coming from, briefly, is what he accurately defined as the central liberal tradition associated with such philosophers as "Hobbes, Locke, Hume, Madison, and Montesquieu" (p. xi). One might also include, of course, such later philosophers as John Stuart Mill, whose principal book is titled, after all, On Liberty, and the late Robert Nozick, whose Anarchy, State, and Utopia offers what I assume Barnett finds a sympathetic account of the minimalist state that even libertarians should accept. Epstein was obviously writing for a sophisticated academic audience, which presumably would be aware of the difference between "classical liberalism" and the "liberalism" linked to the contemporary Democratic Party. Barnett, on the other hand, is publishing what is very much a trade book designed for a wider audience, and perhaps he believed that too many potential readers would be scared off or otherwise alienated by the very idea that they were being asked to agree with anything meriting the label "liberal." To the extent this is true, it is an unfortunate commentary on the assumptions about the political illiteracy of contemporary Americans. In any event, it might help to explain why Barnett prefers the confusing term "Republican Constitution."

To be sure. Barnett (like Epstein before him) notes that members of the founding generation were more than a bit skeptical about democracy and frequently used the term "republican" as the alternative to that view. To put it mildly, that term is highly problematic with regard to providing any specific definition. "There is not," former President John Adams wrote in 1807, "a more unintelligible word in the English language than republicanism." (5) That being said, it is hard to escape the widespread use of the term both in American discourse and, just as importantly, the analyses of American historians especially over the past half-century. (6) In his magisterial overview of the latter, Daniel Rodgers, focusing on the use of the term particularly by legal academics such as Frank Michelman, Cass Sunstein, and Morton Horwitz, summarized its importance as follows:

"[Republicanism" was swept up as shorthand for everything liberalism was not: commitment to an active civic life (contra liberalism's obsession with immunities and rights), to explicit value commitments and deliberative justice (as opposed to liberalism's procedural neutrality), to public, common purposes (contras liberalism's inability to imagine politics as anything other than interest group pluralism). (7)

It is not surprising, then, that Epstein noted that the framers he (and Barnett) choose to focus on "did not embrace the now fashionable 'republicanism' that allows the government to demand personal sacrifice or even individual valor in the service of some higher, overriding vision of community good." (8) And, it is important to emphasize, "community good" in this context means more than extraction of taxes to pay for what economists refer to as "public goods," i. …

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