This squib began as a review of Professor Randy Barnett’s latest work, Our Republican Constitution. However, once I got into his explication of the two contradictory visions of the Constitution and what it means for Western Civilization, I decided to linger on the high points.
If the Leftist avalanche of executive branch lawmaking, group rights, collegiate snowflakes, moral relativism, and horrid supreme court decisions under a Constitution designed to secure unalienable rights leaves you puzzled, then Professor Barnett’s latest book will help clarify the insanity that is modern progressivism.
For those familiar with his previous works going back to The Rights Retained by The People: The History and Meaning of the Ninth Amendment (1989), in which the non-lawyer reader often labored through difficult and complex court decisions, Our Republican Constitution is a breezier read more akin to baseball box scores than detailed play-by-play details down to the nuance between two-seam and four-seam fastballs. Yet, I view Barnett’s deep insight here as a Unified Theory to understanding changing progressive perceptions v. conservative construction of our Constitution.
The Democratic Constitution.
To Leftists, who frolic in dividing the nation into self-serving identity groups, We The People of our Constitution are the sum of every identity group in existence, and is the sovereign collective entity whose will is to be obeyed. Since every member of any group will not agree on everything, majoritarian rule within the group is the fundamental principle of rule by We The People. Barnett calls this majoritarian will of the people The Democratic Constitution which:
• starts with a collective vision of We The People
• leads to a conception of popular sovereignty based on the “will of the people” as a group
• in practice, can only be the will of the majority
Under this simplistic scheme, governing institutions are sluices through which the will of the majority is expressed. This will, of course, can change, but whatever the will of the majority is at the moment is presumptively legitimate. No court or president should stand in the way. Whatever the people determine, including in the realm of rights, is up to their collective will. If this sounds like a living and breathing constitution, it is. Yesterday’s will is “the dead hand of the past,” and cannot override today’s majority.
Professor Barnett sums up the Democratic Constitution up this way: first comes government, then comes rights.
As for judges under a Democratic Constitution, well, they can pose a difficulty. When they veto popularly enacted congressional laws, they thwart the will of the people. Judges should exercise “restraint” and “deference” and adopt a presumption of constitutionality, that congress acted properly.
This is exactly what happened in the challenge to Obamacare. Like members of congress, no scotus judge read the entire law. A majority of five washed their hands in submissiveness to their fellow travelers in congress. This is democrat governance.
Under democrat governance, the Laws of Nature and Nature’s God are absent. The lessons of our 1776 -1787 experience are of no consequence. The legislative is superior to the judicial and executive. Collective man is the highest lawgiver. We The People are a single, ultimate sovereign. Just as no object can move in two directions at once, the people can only move together as a single body.
Where the people go is by majoritarian will of their representatives, and is how societies rationalize:
• Increasingly contentious and violent elections.
• Mutable rights.
• Nationwide laws and diktats controlling and regulating all things.
• Eventual gulags and killing fields to deal with political opponents.
The Democratic Constitution leaves no room for the will of the people within their state republics. For instance, Professor Barnett’s theory is consistent with how easily the scotus vetoed the will of the people of California to twice ensconce marriage as between man and woman.
I trust the reader has not pulled out all of his hair. In my next post, we’ll look at the Republican Constitution.
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Barnett, Randy E. Our Republican Constitution: Securing the Liberty and Sovereignty of We The People. New York: Harper Collins, 2016.