A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a 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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About the Author
Randy E. Barnett is the author of eleven books, including Restoring the Lost Constitution and The Structure of Liberty. He is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts, and is director of the Georgetown Center for the Constitution. In 2012 he represented the National Federation of Independent Business in its constitutional challenge to Obamacare. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, he lives in Washington, D.C.
Table of Contents
Foreword George F. Will ix
Introduction: Triumph and Tragedy: How the Obamacare Case Was Won… and Lost 1
Part I Creating Our Republican Constitution
1 "To Secure These Rights": The Political Theory of the Declaration of Independence 31
2 Revising "Republicanism": Solving the Problem of Too Much Democracy 52
3 "We the People" as Individuals: Popular Sovereignty in the Constitution and Supreme Court 62
Part II Improving Our Republican Constitution
4 How Slavery Led to a More Republican Constitution: The New Republican Party and Its Amendments 85
5 Losing Our Republican Constitution: The Rise of Progressivism, Judicial Restraint, and the Living Constitution 113
Part III Preserving Our Republican Constitution
6 Why Federalism Matters: How Structure Secures the Liberties of the People 167
7 Protecting Rights by Limiting Federal Power: The Rise, Fall, and Partial Revival of Federalism 185
8 A Government of Men and Not of Laws: The Rise of the Executive-Administrative State 203
9 "Irrational and Arbitrary" Laws: The Need for Judicial Skepticism 222
Conclusion: Redeeming Our Republican Constitution 247