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Our Republican Constitution
Randy E. Barnett
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Our Republican Constitution
Randy E. Barnett
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About This Book
A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation's leading constitutional scholarsâa manifesto for renewing our constitutional republic.
The Constitution of the United States begins with the words: "We the People." But from the earliest days of the American republic, there have been two competing notions of "the People, " which lead to two very different visions of the Constitution.
Those who view "We the People" collectively think popular sovereignty resides in the people as a group, which leads them to favor a "democratic" constitution that allows the "will of the people" to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a "republican" constitution is needed to secure the pre-existing inalienable rights of "We the People, " each and every one, against abuses by the majority.
In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative "republican" constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.
Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why "We the People" would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.
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PART I
CREATING OUR REPUBLICAN CONSTITUTION
CHAPTER 1
âTO SECURE THESE RIGHTSâ
The Political Theory of the Declaration of Independence
ON APRIL 19, 1775, seventy-seven armed Minutemen formed up on the village green of Lexington, Massachusetts, to confront seven hundred British regulars under the command of Lieutenant General Thomas Gage. Shots were fired and several of the Massachusetts men were killed in the exchange. When the British force moved on to Concord, they were routed at the North Bridge by a contingent of five hundred armed Minutemen. In their retreat to Boston, the British suffered many casualties as they were attacked by thousands of militiamen along the road. The battles of Lexington and Concord marked the start of the American rebellion, but it was not until a year later that the United States was born.
Our countryâindeed our peopleâhas a discrete starting point, a singular moment in time when its founding was expressly defended in abstract and theoretical terms. That moment was July 4, 1776, when the Continental Congress formally adopted the Declaration of Independence. To appreciate the republican nature of our Constitution, we must begin at the beginning, some thirteen years before the Constitution was enacted in 1789, when the principles upon which the new nation was formed were authoritatively declared.
THE DRAFTING OF THE DECLARATION OF INDEPENDENCE
On June 11, 1776, the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Leeâs motion â[t]hat these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown: and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved.â1 As John Hancock later put it, such a declaration would provide âthe Ground & Foundation of a future Government.â2
The Committee of Five consisted of the senior Pennsylvanian Benjamin Franklin, Roger Sherman of Connecticut, New Yorkâs Robert Livingston, the Massachusetts stalwart champion of independence John Adams, and a rather quiet thirty-three-year-old Virginian named Thomas Jefferson. After a series of meetings to decide on the outline of the Declaration, the committee assigned Jefferson to write the first draft.3
Jefferson did not have much time. With no executive, the war was run entirely by congressional committees, and the business of waging war pressed heavily on its members. Over a six-month period, Jefferson served on some thirty-four different committees, which kept him very busy. On June 17, for example, the committee overseeing the Canadian campaign submitted two reports to Congress, both in Jeffersonâs own hand. Two members of the Virginia delegation had left Philadelphia, increasing the pressure on Jefferson to attend the sessions of Congress.
So with the press of other matters, Jefferson did not have three leisurely weeks to write. He had merely a few days. Needing to work fast, Jefferson had to borrow, and he had two sources in front of him from which to crib. The first was a list of grievances in his draft preamble for the Virginia constitutionâa list that was strikingly similar to the first group of charges against the king that ended up in the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg, where the provincial convention was being held.
Unlike today, when such cribbing might detract from Jeffersonâs accomplishment, achievement in the eighteenth century âlay instead in the creative adoption of preexisting models to different circumstances, and the highest praise of all went to imitations whose excellence exceeded that of the examples that inspired them.â For this reason, younger men âwere taught to copy and often memorize compelling passages from their readings for future use since you could never tell when, say, a citation from Cicero might come in handy.â4
Masonâs May 27 draft proved handy indeed in composing the Declarationâs famous preamble. Its first two articles present two fundamental ideas that lie at the core of a Republican Constitution.
The first idea is that first come rights and then comes government. Here is how Mason expressed it:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.5
So, in Masonâs draft, not only do all persons have âcertain . . . natural rightsâ of life, liberty, and property, but these rights cannot be taken away âby any compact.â These inherent individual natural rights, of which the people cannot divest their posterity, are therefore retained by them. Masonâs words would become even more canonical than Jeffersonâs more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions, and they would be echoed in the Ninth Amendment, and much later in the Privileges or Immunities Clause of the Fourteenth Amendment.
Article 2 of Masonâs draft then identified the persons who make up a government as the servants of the sovereign people, rather than their master: âThat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.â6 As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.
All this was compressed by Jefferson into 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.
John Adams later recalled that Jefferson took only a day or two to write the first draft, which was then turned over to the committee for its feedback before it was submitted to Congress. Although this draft was then heavily edited and shortened by Congress sitting as a Committee of the Whole, its Preamble was left pretty much as Jefferson had submitted it.
I turn now to that Preamble, for these two paragraphs identify the theory of what I am calling our Republican Constitution.
WHAT THE DECLARATION OF INDEPENDENCE CLAIMED
Today, while most Americans have heard of the Declaration of Independence, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution and provides important information about what the founders believed makes a constitution or government legitimate.7 It also raises the question of how these fundamental rights are reconciled with the idea of âthe consent of the governed,â another idea for which the Declaration is famous.
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as a traitor should he be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing âthe people.â
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the king himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known.
So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence the Declarationâs famous reference to âa long train of abuses and usurpationsâ and the list that followed. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
But before this list of particular grievances came two paragraphs succinctly describing the political theory on which the new polity was founded. To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Natureâs God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
This first sentence is often forgotten. It asserts that Americans as a whole, rather than as members of their respective colonies, are a distinct âpeople.â And this âone peopleâ is not a collective entity, but an aggregate of particular individuals. So âtheyâ not it should âdeclare the causes which impel them to the separation.â
To âdissolve the political bandsâ revokes the âsocial compactâ that existed between the Americans and the rest of the people of the British commonwealth, reinstates the âstate of natureâ between Americans and the government of Great Britain, and makes âthe Laws of Natureâ the standard by which this dissolution and whatever government is to follow are judged. As Committee of Five delegate Roger Sherman observed in 1774, after hostilities broke out with the British, âWe are Now in a State of Nature.â8
But what are these âLaws of Natureâ? To answer this, we can turn to a sermon delivered by the Reverend Elizur Goodrich at the Congregational Church in Durham, Connecticut, on the eve of the Philadelphia Constitutional Convention. At the time of the founding, it was a common practice for ministers to be invited to give an âelection sermonâ before newly elected government officials, in this case the delegates to the Constitutional Convention, to encourage them to govern according to Godâs ways.
In his sermon, Goodrich explained that âthe principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse.â9 These laws, Goodrich observed, âmay be considered as principles, in respect of their fixedness and operation,â and by knowing them, âwe discover the rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature.â10 These rules of conduct âare as fixed and unchangeable as the laws which operate in the natural world. Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.â11
In this sense, natural laws govern every human endeavor, not just politics. They undergird what may be called ânormative disciplines,â by which I mean those bodies of knowledge that guide human conductâbodies of knowledge that tell us how we ought to act if we wish to achieve our goals. To illustrate this, Goodrich offered examples from agriculture, engineering, and architecture:
He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and stre...