THIS BOOK, SLENDER and sharp as a stiletto, arrives at a moment when the nation’s civic temperature is high, but not higher than the stakes of today’s political argument. This volume is written by a law professor and lucidly takes readers into the thickets of jurisprudential controversies. It is not, however, merely, or even primarily, a book about American constitutional law. In fact, it demonstrates why any treatise on the major themes of constitutional law cannot help but be much more than that. It must be an encounter with the great issues of political philosophy—how to understand human nature, rights, freedom, equality, and justice. Or in Randy Barnett’s formulation, “How should society be structured so that individuals can pursue happiness while living in close proximity to others?”
In the pages that follow, Barnett explains why the way we resolve two of today’s interlocking arguments—about the Constitution’s priorities and the judiciary’s role in implementing them—will decide nothing less than the nature of the American regime.
Barnett is an eminent law professor and the prolific author of now eleven books and scores of law review articles pertaining to constitutional law. Also, through his engagement in public affairs—arguing in appellate courts and the Supreme Court, in the mass media and other public forums—he has become one of the nation’s most prominent public intellectuals. Now however, in this book, he explicitly assumes a role implicit in his other roles, that of political philosopher.
His career, and this book, illustrate a profound truth about the American polity and its history, a truth sometimes missed by even the most accomplished students of American history. It is often said that ours is a nation indifferent, even averse, to political philosophy. And it is said that this disposition is a virtue and a sign of national health. The theory is that only unhappy nations are constantly engaged in arguing about fundamental things, and that the paucity—one should say the postulated paucity—of American political philosophy is evidence of a contented consensus about our polity’s basic premises.
More than six decades ago, Daniel J. Boorstin, then a University of Chicago professor of American history and later librarian of Congress, published his own slender volume, The Genius of American Politics. It appeared in 1953, during America’s postwar introspection about the nature and meaning of our nation’s sudden global preeminence. Boorstin’s argument, made with his characteristic verve and erudition, aimed to explain why our success was related to “our antipathy to political theory.”
The genius of our democracy, said Boorstin, comes not from any geniuses of political thought comparable to Plato and Aristotle or Hobbes and Locke. Rather, it comes from “the unprecedented opportunities of this continent and from a peculiar and unrepeatable combination of historical circumstances.” This explains “our inability to make a ‘philosophy’ of them,” and why our nation has never produced a political philosopher of the stature of, say, Hobbes and Locke or “a systematic theoretical work to rank with theirs.”
Well. Leave aside the fact that James Madison was a political philosopher of such stature. He was because he was a practicing politician. And leave aside the fact that, which it surely is, The Federalist Papers, although a compendium of newspaper columns written in haste to solve a practical problem (to secure ratification of the Constitution), is a theoretical work that ranks with Hobbes’s Leviathan and Locke’s The Second Treatise on Civil Government. Indeed, The Federalist Papers remains a recognizably major event in the Western political conversation begun by Plato.
Considered in the second decade of the twenty-first century, as we stand on the dark and bloody ground of today’s political contentions, Boorstin’s book remains interesting, but primarily as a period piece. It is a shard of America’s now-shattered consensus. Or, more precisely, it is a document from the calm before the storm of the counterattack against progressivism’s complacent assumption that its ascendancy was unchallenged and secure.
The theory that America is inhospitable to political philosophy is thoroughly wrong. The American argument about philosophic fundamentals is not only ongoing, it is thoroughly woven into the fabric of our public life. Far from being rare and of marginal importance in America, political philosophy is more central to our public life than to that of any other nation. It is implicated in almost all American policy debates of any consequence.
Indeed it is, like Edgar Allan Poe’s purloined letter, hidden in plain sight. All American political arguments involve, at bottom, interpretations of the Declaration of Independence and of the Constitution, which was written to provide institutional architecture for governance according to the Declaration’s precepts. So constitutional lawyers like Barnett are America’s practitioners of political philosophy.
The Constitution, which Barnett calls “the law that governs those who govern us,” is, he argues, properly read in the bright light cast by the great document that preceded it, the Declaration of Independence. The Constitution was written to provide the institutional architecture and the practices requisite for a national life lived in accordance with what Barnett calls Jefferson’s “fifty-five compelling words”:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Those fifty-five words are so familiar that the importance of two of them, a verb and an adjective, is insufficiently understood. Governments can derive many powers from the consent of the majority, but not all exercises of those powers are, simply because they flow from a majority, “just.” And governments are instituted to “secure” our preexisting rights, not to bestow them. As Barnett insists, the great divide in America today is between those who do believe, as the founders did, that “first come rights and then comes government,” and those who believe, as progressives do, that “first comes government and then come rights.” The former are adherents of the Republican Constitution. The latter have given us the Democratic Constitution.
The debate between these cohorts is, Barnett believes, “about the meaning of the first three words of the Constitution: ‘We the People.’ Those who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals.” The choice between these two understandings has enormous consequences, especially concerning the proper meaning of popular sovereignty.
A Republican Constitution is a device for limiting government, including government’s translation of majority desires into laws and policies when those conflict with government’s business of securing the natural rights of individuals. Barnett adopts given/if/then reasoning: given the constancy and regularity of human nature, if our aim is the flourishing of individuals living in communities, then the following institutional arrangements are requisite for securing the rights of individuals.
A Democratic Constitution is a device for giving priority to the will of a collective, the majority. This Constitution expresses the desires of a majority of the people, allowing the majority’s will to prevail. Hence, Barnett notes, any principle—or practice, such as judicial review—that impedes the will of the majority is presumptively illegitimate until proven otherwise. And “the only individual rights that are legally enforceable are a product of majoritarian will.”
Barnett has elsewhere written that for decades now, American Lockeans have been losing ground to Hobbesians. Those who take their bearings from John Locke “are those for whom individual liberty is their first principle of social ordering.” Those who are Thomas Hobbes’s intellectual children “give the highest priority to government power to provide social order and to pursue social ends,” even if the rights of individuals must be abridged.
Not all Hobbesians are progressives, but all progressives are Hobbesians because they say America is dedicated to a process—to majoritarian decision-making that legitimates the exercises of the government power that it endorses. Not all Lockeans are libertarians, but all libertarians are Lockeans because they say America is dedicated to a condition—liberty. Hobbesians say the core American principle is the right of the majority to have its way. Lockeans stress rigorous judicial protection of individual rights, especially those of private property and the freedom of contract, that define and protect the zone of sovereignty within which people are free to act as they please.
The 1896 Plessy v. Ferguson decision, in which the Supreme Court deferred to the right of the majority to codify racial segregation under the rubric of “separate but equal,” was, Barnett argues, an example of the Democratic Constitution’s majoritarianism. He says the 1954 Brown v. Board of Education decision, affirming the individual rights of individual school children against a majority’s preference for segregated schools represented tardy fidelity to the Republican Constitution.
Barnett has become a leader of those who are reasserting the natural rights tradition that was overthrown during progressivism’s long success in defining the nature of the Democratic Constitution and the judiciary’s permissive role in construing the government’s powers under it. But Barnett’s challenge to progressives is also, and perhaps first, a challenge to conservatives. He is summoning them to reexamine the philosophic premises that have impelled them to celebrate judicial modesty, understood as deference to majoritarian institutions. Hence this book will be constructively discomforting, disturbing the dogmatic slumbers of people who occupy various positions along the political spectrum.
Barnett’s readers will be convinced that political philosophy, far from somehow being an alien activity for Americans, is as American as apple pie. Margaret Thatcher, explaining why Europe and the United States are really not siblings, said: “Europe is a product of history. America is a product of philosophy.” To read this book is to understand how right she was about America, and how right Randy Barnett is about the need for Americans to soberly consider how far their cumulative choices have taken their country from the founders’ philosophy.
He has written not an agenda for action but a call to reflection. If his call is heeded, action will follow, and so, perhaps, will the restoration of the Republican Constitution.