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Not Your Founders’ Constitution

The problem with relying on federal courts to protect liberty.

Georgetown law professor Randy Barnett is the most prominent libertarian in legal academia today. His latest book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, shows why. Characteristically of libertarian legal scholars, Barnett decries the essentially unchecked power of the federal legislative and executive branches (I agree with him about that) and advocates that the courts exercise far broader veto power over federal and state policymaking (which is not my favorite idea).

Barnett bases his argument for reinvigorated judicial imperialism on a peculiar reading of the United States’ founding documents—one holding that the Constitution was the act of one people, and that somehow this means individual Americans are sovereign. The sovereignty of the people, in turn, underpins Barnett’s longstanding claim that the Constitution embraces a “presumption of liberty” that courts must uphold against the other branches of government.

Barnett asserts first that the Declaration of Independence created a single American political nation, citing the document’s first sentence. That sentence memorably states:

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them to another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

According to Barnett, the reference to “one people” shows that the Americans were one people, and thus that sovereignty—ultimate authority—in America is in the people individually.

It will perhaps seem harsh to say that Barnett’s argument fails at its first step, but it does. If you and I write a book review together, and in its first sentence we say, “In writing a book review, an author must describe and evaluate the book’s argument,” are we saying we are one person? No. And if we conclude, “and so the two of us recommend this book,” it becomes especially clear that we are not claiming to be one person. Similarly, when the final, operative section of the Declaration of Independence says, “these United Colonies are, and of right ought to be, free and independent states,” we see that they are not claiming to be one.

Barnett’s assertion that ratification was the act of a single American people is also mistaken. In fact, there is no constitutional mechanism through which a single American people speaks or has spoken; rather, the U.S. Constitution is a federal, not a national, one.

We can see that in several features of the Constitution. Consider, most notably, Article VII, the ratification article. It provides, in total, “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.” So the states, understood as discrete political communities, ratified the Constitution, not one American people.

Similarly, in Virginia’s summer 1788 ratification convention, one of the three chief Federalist orators, George Nicholas, explained in that assemblage’s final significant speech that in ratifying the Constitution, Virginia would be one of 13 parties to a compact, and so its understanding of the Constitution at the time it ratified would be binding. In case the new government abused its powers, Nicholas added, Virginians would be able to reclaim them. Note: Nicholas did not say that Virginia would be one part of the one party to the compact—the American people. Rather, Virginia would be one of 13 parties.

Where can Nicholas have gotten the idea that the states were the constituent parts of the American federal union? Not only had the Declaration of Independence said that they were “free and independent states,” but the first substantive article of the first federal constitution—the Articles of Confederation, Article II—began by saying, “Each state retains its sovereignty,” and the Treaty of Paris (which ended the Revolution in 1783) included George III’s recognition not of “America” or of a sovereign American people, but of the 13 states, which he named individually in order from north to south.

One widely influential argument for ratification, published in at least 39 places, was James Wilson’s October 6, 1787, Statehouse Speech, which noted that state governments had all powers not expressly denied them—unlike the federal government, which would have only the powers the Constitution said it had. This is a classic distinction between a sovereign entity, the state, and a federal government—one of enumerated powers. Indeed, the use of the word “state” in relation to South Carolina, Delaware, Pennsylvania, etc., denoted a sovereign entity, and it had since the word was introduced into modern political science by Machiavelli.

According to the terms of Article VII of the Constitution, when George Washington took the oath of office as president of the United States for the first time in April 1789, eleven states had cast electoral votes for him and eleven states would be represented in Congress. North Carolina and Rhode Island, as they had not ratified the Constitution, remained outside the union. This process was inconsistent with the theory of one American people, else how could one account for parts of that one people—the parts inhabiting North Carolina and Rhode Island—be beyond the jurisdiction of the new federal government? But it was entirely consistent with Federalist chieftain George Nicholas’s description of the situation to the Richmond Convention in 1788.

Besides that, the Second Continental Congress did not have authority to dedicate the United States to any particular philosophical position. The delegates from Virginia had been instructed by the Virginia Convention (Virginia’s ruling body) to declare independence, and several states’ delegates had been told to join in declaring independence if the other states’ delegates declared it. The Continental Congress was not a legislature, but, as one member said, a meeting place of ambassadors of the state governments. Thus, their authority extended only to what their legislatures had told them to do. None of them had been authorized to cook up a short statement of political philosophy by which the states (meaning the people of each state) would be bound. So, even if Barnett were right that the Declaration purported to be the statement of one polity and not of 13 “free and independent states,” and even if the philosophical section spoke in terms purportedly binding upon the states, the Declaration would be mistaken.

The leading legal authority in the 18th-century Anglophone world, Sir William Blackstone, defined “sovereignty” as the final authority that was necessary in every society. This final authority, he said, was indivisible and illimitable. Where is this authority in the American constitutional system?

Some have said that there is no such authority in America, that authority is dispersed and limited. Yet this is true only superficially. Ultimate authority is the authority to revise or replace the U.S. Constitution. This authority, described in Article V of the Constitution, remains in the states as the sole amenders of the Constitution. Just as each of the original 13 states joined in the new union under the new Constitution for itself, and just as each of the newer states joined the union by drafting a republican constitution for itself and asking Congress to accept it into the union, so—logically—only the states can change the terms of that union.

One might object that while all of the states originally joining the union did so for themselves, neither of the two Article V processes requires that all states agree to any constitutional amendment, and so the states are no longer sovereign. This objection fails, however, on the ground that it was the original states that unanimously created Article V and that every newer state voluntarily accepted Article V at least on first entering the union. If the states unanimously agreed to make amendment under the Constitution easier than it had been under the Articles of Confederation (which required all 13 states to agree before any amendment took effect), this shows only that they made a prudential decision, not that they somehow surrendered their ultimate authority to some inchoate American people—an American people to which the Constitution, again, gives no voice. The representatives are elected by citizens of the states to represent districts drawn by the states, the senators are elected by the people of the states, the president is chosen by electors selected by whatever procedure the states’ legislators may choose, federal judges are appointed by the president thus selected with the advice and consent of that Senate, etc. There is no national election, no referendum, no recall.

The early history of the United States is marked by numerous reiterations of the position that the U.S. Constitution was federal, not national—that is, that the constituent parts of the United States were the united states. Some of them—the Virginia General Assembly’s protest that assumption of state debts was unconstitutional, Representative James Madison’s denunciation of Alexander Hamilton’s Bank Bill as unconstitutional, Attorney General Edmund Randolph and Secretary of State Thomas Jefferson’s memoranda to President George Washington explaining that the Bank Bill was unconstitutional, etc.—are familiar to any student of the Early Republic. One would expect that, finding Jefferson, Randolph, Madison, and the like arrayed against his argument, Barnett would at least do what lawyers do—distinguish their cases from his.

But no. Instead, Barnett, uniquely in my understanding, calls upon a couple of seriatim opinions—i.e., individual opinions; in those days there was no “majority opinion”—in the Supreme Court case Chisholm v. Georgia (1793). In Chisholm, Justice James Wilson and Chief Justice John Jay referred to individual Americans as (in Jay’s words) “the joint and equal sovereigns of this country.” So there we have it, Barnett concludes: sovereignty is in individual American citizens.

Chisholm is known today chiefly for having elicited from the Congress and states the 11th Amendment, which swiped down the Supreme Court’s attempt to claim jurisdiction for itself over certain cases “commenced or prosecuted against one of the United States by Citizens of another State.” In other words, Barnett rests his theory on individual justices’ opinions in one of only three cases in American history to be corrected by constitutional amendment. Even if there were a majority opinion, that would make it an exceedingly weak reed.

Barnett notes that “Neither Wilson’s nor Jay’s individualist conception of popular sovereignty conforms to the modern notion of popular sovereignty as a purely ‘collective’ concept.” The word “modern” is a bit odd here, however: as we’ve seen, the idea that the Constitution was a compact among the ratifying states was clearly expressed during the Founding era, e.g., by Nicholas. It was the position of numerous other blasts against federal usurpation in the 1790s. The fact that it was popular is reflected in the speed with which the 11th Amendment was adopted to negate Chisholm v. Georgia, not to mention in the disappearance in Jay’s lifetime of the party to which Wilson and Jay belonged.

Barnett has a reason for elevating Chisholm to the touchstone of American constitutionalism, however: if, as in his account, the states as sovereign political communities were completely effaced from the record, the way is clear for his libertarian legal project. That project’s shape is made clear by his reliance on another early Supreme Court opinion: that of Justice Samuel Chase in Calder v. Bull (1798).

Calder v. Bull is best known to conservatives as the occasion for a powerful denunciation of judicial imperialism by North Carolina’s leading ratification campaign Federalist, Justice James Iredell. Barnett favors the assertion of judicial authority to which Iredell was responding. It came from Justice Samuel Chase, whose overweaning imperiousness and arbitrarily political conduct of criminal trials would soon make him the only Supreme Court justice ever impeached. Chase used the case as a chance to lay out his understanding of the authority of judges over legislators:

There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. … An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

Iredell blasted Chase’s claim of a generalized judicial veto over legislative enactments, making the point a conservative today might be expected to make: “If … the legislature of the union, or the legislature of any member of the union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.”

barnettcoverOne should not read Iredell’s statement as implying that questions of natural right should have no effect on American law. Rather, Iredell stood for the plain republican point that if a citizen believes a law to be contrary to justice, he should endeavor to persuade his fellow citizens to change the law through the legislative process—not just go ask the judiciary to substitute its view of natural right for that of the populace, as expressed through the republican legislative process.

For several decades now, conservatives have looked on in dismay as the country has suffered under a veritable onslaught of judicial lawmaking in the name of “emanations of penumbras” of the Bill of Rights and other constitutional provisions supposedly entitling courts, particularly federal courts, to substitute their ever-changing Progressive-nationalist vision for the states’ preferences. Thus, millions of kids were slapped into buses and sent to distant schools in the name of a supposed right to racial balance in public-school enrollments; the entire state of Missouri had its taxes raised for many years by a solitary federal judge in pursuit of the same; anodyne prayer was banished from public schools; abortion, sodomy, and gay marriage were declared to be rights; capital punishment was banned, then re-legalized, then banned in cases of rape (including rapes of small children, which the Supreme Court said was not a very important crime); pornography, nude dancing, and flag burning were declared to be “speech,” and thus constitutionally protected; due process was declared to include taxpayer-financed legal counsel; due process was declared to include a preemptive warning that one need not confess; and on, and on.

One noted conservative commentator referred to this trend as “slouching toward Gomorrah.” For Barnett, it is a good start. His overall project is to show that the Supreme Court’s exercise—until the Revolution of 1937—of a roving veto over both state and federal laws regulating economic activity should be resuscitated. Having attempted to show that the Founders’ Constitution was a national one and that the individual is sovereign, Barnett asserts that the 14th Amendment means that Chase’s vision has textual support.

Barnett gets to that conclusion through two assertions: that the Privileges or Immunities Clause of the 14th Amendment makes most provisions of the first eight amendments enforceable by federal courts against state governments; and that the Due Process Clause of the 14th Amendment imposes an imperative upon federal judges to strike down any law they find unreasonable. The first of these assertions is an invention of the federal courts beginning in the second decade of the last century. The second has been discredited since the Revolution of 1937, when federal courts abandoned their self-created role as supervisors of all economic legislation.

In general, the Due Process Clause precedents of the pre-1937 era saw federal courts striking down economic regulations on more or less Justice Chase’s basis: that they violated basic American principles, which somehow judges were specially qualified to recognize and enforce. From an originalist point of view, those old precedents were generally laudable on the basis of their results when they invalidated federal laws—the Tenth Amendment having reserved control over such questions to the states—though regrettable on the basis of their trumped-up “constitutional” justification. They were also regrettable insofar as they stood for the negation of the federalism principle George Nicholas and other Federalists of ratification days had promised would be central to the new constitution.

Barnett has little difficulty demonstrating that the policies he would like federal judges to force on the people under the guise of “due process” are desirable. I am an economic libertarian, as he is. But I would prefer he admit that he is making policy arguments, not constitutional ones. That he chooses not to indicates, no doubt, that he thinks it more likely federal courts will pick up this old cause than that state and federal legislatures, let alone regulatory agencies, will.

The “republican constitution” of this book’s title is an alternative to a democratic one. It is also an alternative to the Founders’—and it is thus not “our” constitution. Whether it is preferable to the current regime is for you to decide.

Kevin R.C. Gutzman is the author of James Madison and the Making of America.



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