Our Republican Constitution: Securing the Liberty and Sovereignty of We the People by Randy Barnett • Broadside Books • 2016 • 320 pp. • $26.99
Trump: The Art of the Deal by Donald J. Trump with Tony Schwartz • Warner Books • 1987 • 372 pp. • $19.95
Jimmy Carter has “balls.”
Shortly after Carter fell to Ronald Reagan in the 1980 election, the former president came to Donald Trump seeking a contribution to help build his presidential library. “Donald,” the billionaire recalls being told by the former president, “I would be very appreciative if you contributed five million dollars.”
It was, as The Donald recounts in Trump: The Art of the Deal, an eye-opening moment for Trump. “Until then,” Trump writes, “I’d never understood how Jimmy Carter became president.” But Carter’s big ask showed Trump that the former president “had the nerve, the guts, the balls to ask for something extraordinary.” As Trump sees the world, audacity — not charisma or hard work or the right connections or carefully calculated political positions, but pure distilled moxie — brought Carter all the way to the White House. Indeed, if there is a single theme that animates Art of the Deal, it is Trump’s belief that fortune favors the bold. “My style of deal-making is quite simple and straightforward,” Trump announces. “I aim very high, and then I just keep pushing and pushing and pushing to get what I’m after.”
Randy Barnett, a law professor with far less fame and far better hair than Mr. Trump, appears to share very little with Mr. Trump. Philosophical when Trump is blustery, scholarly when Trump is more prone to insults, Barnett also encapsulates the views of a faction within the Republican Party that would very much like to see Trump go away. It is only a slight exaggeration to say that the ongoing Republican primary presents GOP voters with a choice between Trumpism and the vision expressed in Barnett’s new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.
Yet Barnett and Trump’s books reveal them to be unexpectedly similar men. Our Republican Constitution, for one thing, rests on a very Trumpian belief in the transformative power of audacity. Barnett is the Republican Shiva to Trump’s Brahma. Trump builds palaces celebrating his own opulence and sky-scraping monuments to his own fame, while Barnett has the nerve, the guts and the balls to tear things down.
More importantly, Barnett and Trump both share a deep disdain for America’s longstanding democratic norms. Trump, of course, is now engaged in a presidential campaign distinguished by its open support for campaign violence, media suppression and overt racism. Barnett is neither as flamboyant nor as fascistic as Trump, but his book very explicitly argues that the problem with the United States is that we just have too much damn democracy. Our Republican Constitution could be renamed “The Audacity of Nope.” It is Barnett’s effort to write his way out of a hurricane of big government, to deny Obama and future Obamas the power to govern as presidents since Franklin Delano Roosevelt have governed.
And, while Barnett is nowhere near the household name that Donald Trump is, his vision is likely to be a much greater threat to America’s democratic norms than the orange-haired presidential contender.
“I don’t hire a lot of number-crunchers,” Trump writes about his own method of seeking out new business opportunities. “I do my own surveys and draw my own conclusions.” “Critics,” Trump adds, should not been taken too seriously. “In my opinion, they mostly write to impress each other, and they’re just as swayed by fashions as anyone else.”
Barnett sympathizes! He begins Our Republican Constitution with a tale of a betrayal sewn by critics. In 2009, the conservative Heritage Foundation recruited Barnett into the burgeoning army of lawyers arrayed against the Affordable Care Act. The professor quickly rose to become a general in the War Against Obamacare. (Barnett remains one of the most influential conservative thinkers in the country, and will almost certainly be a primary architect of the American right’s litigation strategy if Republicans regain a majority on the Supreme Court.)
As Barnett tells his tale of betrayal, his efforts to save America from the tyranny of freely available and affordable health insurance were beset by critics. “The great majority of law professors continued to insist that our arguments so lacked merit they should be considered ‘frivolous,’” Barnett writes. One professor even went so far as to suggest that any lawyer who pursued Barnett’s arguments against Obamacare in court “was at risk of sanctions for bringing a meritless complaint.”
Though the legal standard for sanctioning an attorney in this way is very high, Barnett’s critics had a point. The case against Obamacare conflicted with Supreme Court precedents reaching back to the early years of the Republic. It also conflicted with an opinion Justice Antonin Scalia wrote in a case Barnett argued and lost before the justices in 2005. According to Judge Laurence Silberman, a long-serving conservative judge who received the Presidential Medal of Freedom from President George W. Bush, Barnett’s arguments against Obamacare found no support “in either the text of the Constitution or Supreme Court precedent.”
It is, in other words, a testament to Barnett’s audacity that he thought this case worth litigating in the first place. And it is a testament to the power of audacity that Barnett came so close to winning in the Supreme Court.
Sometimes the critics, with their fashionable belief that governments derive their just powers from the consent of the governed, win.
Trump writes in Art of the Deal that he doesn’t normally let himself be bothered by critics, but he makes an exception for when those critics ‘stand in the way of my projects.” It’s good advice, and Barnett soon learned that there is wisdom in Trump’s words.
After the justices appeared unexpectedly likely to buy Barnett’s arguments during oral arguments on the fate of Obamacare, even more prominent critics emerged. Senate Judiciary Chair Patrick Leahy (D-VT) warned that “the conservative activism of recent years has not been good for the Court.” President Obama himself weighed in to note the hypocrisy of conservatives who, until very recently, viewed the judiciary’s role as far more limited. “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.” He added that the case against Obamacare “was a good example” of judges stealing power away from lawmakers who enjoyed the mandate of the people.
“We will never know if these and many other sometimes vituperative attacks on the more conservative justices had an effect on the outcome of the case,” Barnett writes mournfully of the Court’s eventual decision not to repeal the law. “But it was reliably reported that the chief justice had voted in conference to hold that the individual insurance mandate was unconstitutional, and that sometime after these attacks commenced, he switched his vote.”
Sometimes the critics, with their fashionable belief that governments derive their just powers from the consent of the governed, win.
On the surface, Trump and Barnett have little in common. Barnett’s probably never spent a day of his professional career pondering which rare marble will transform his office from merely opulent to offensively ostentatious. Nor has the professor ever discussed the size of his genitals in a nationally televised debate. Also, Barnett’s not exactly a fan of Mr. Trump’s:
Nevertheless, the two men are currently engaged in fundamentally similar projects. Trump’s presidential campaign is at war with America’s democratic norms, punishing newspapers that criticize the candidate and allegedly even physically assaulting a reporter. Trump openly encourages violence against protesters who criticize his ideas. His supporters organized into a “volunteer security force” that patrols Trump rallies and tears up signs carried by dissenters.
Trump alluded to the possibility of violence if Republicans try to install a different presidential nominee at their convention this July. The Washington Post compared Trump to Russian strongman Vladimir Putin. Putin himself praised Trump as a “very bright and talented man.”
Though Barnett is far more libertarian and less fascistic than Trump, he shares Trump’s ambivalence towards democracy. The professor’s book is a critique of what he labels the “Democratic Constitution,” and a call for an alternative he labels the “Republican Constitution.”
It should be noted that Barnett does not intend these as partisan labels. As he writes, “there are political conservatives who hew to some aspects of the Democratic Constitution and some progressives who adopt aspects of the Republican one.” Rather, Barnett’s concern is that American government is simply too responsive to the will of the people as expressed at the ballot box, and that judges need to do more to rein in democracy.
The Democratic Constitution, as Barnett defines it, “sets up institutional mechanisms by which the desires of a majority of the people can be expressed.” Though such mechanisms may, at first, appear more like a feature than a bug, Barnett spends much of the book warning about the dangers of an unchecked democracy. For the political conservatives he views as the book’s primary audience, Barnett lays Obamacare’s continued existence at the feet of the Democratic Constitution:
This is how the Obamacare case was decided as it was: a majority of the Supreme Court could assert they were deferring to Congress, the popularly elected and most democratically accountable branch. Who was the unelected Supreme Court to obstruct the will of We the People as manifested by a majority of representatives in Congress?
Not all of Barnett’s examples of democracy run amok, however, are chosen solely to appeal to conservatives. He describes the Court’s reasoning in Plessy v. Ferguson, the odious 1896 decision upholding racial segregation, as “a simple restatement of the deference to the will of a majority in the legislature that is at the core of the Democratic Constitution.” Barnett similarly criticizes Bradwell v. Illinois, an 1872 decision upholding Illinois’ refusal to grant someone a license to practice law because she was a woman, for “blindly deferr[ing] to the will” of state lawmakers.
As an alternative to such deference, Barnett offers what he describes as the “Republican Constitution.” The Republican Constitution begins with the premise that we all enjoy certain “natural rights” that preexist the formation of a government. Our government’s purpose, Barnett argues, is not to “reflect the people’s will or desire” but instead to “secure the preexisting rights of We the People.”
Few people contest that we all enjoy basic human rights that must be respected by governments, but a much harder question is how does one determine exactly what these rights are? Barnett answers this question by analogizing the American people to medieval monarchs. The fundamental premise of the Republican Constitution, Barnett explains, is “individual popular sovereignty.” Thus, “the rights and powers retained by the people closely resemble those enjoyed by sovereign monarchs.”
Just as such monarchs “claim jurisdiction over their territories,” Barnett writes, “sovereign individual citizens have jurisdiction over their private property.” Just as a reigning monarch “may use force to defend their people and territory,” so too many American citizens “use force in defense of themselves and their possessions.” Just as a king or queen “may consensually alter their legal relations with other monarchs by entering into treaties,” so too may citizens enter “into contracts with each other.”
Every man a king!
We’re All Republicans Now
For all of his bluster and braggadocio, Donald Trump offers a fundamentally optimistic vision in Art of the Deal. Trump credits President Carter’s rise to the White House to Carter’s audacity, but there’s also another side to Trump’s evaluation of the former president. Carter’s nerve, guts and balls “above all helped him get elected president. But then, of course, the American people caught on pretty quickly that Carter couldn’t do the job, and he lost in a landslide when he ran for reelection.”
One doesn’t have to share Trump’s dismissive view of Jimmy Carter to find this overarching view of the world comforting. Art of the Deal posits a world where hucksters and incompetents are eventually sniffed out, where you can’t fool most of the people all of the time. Barnett should hope that a similar rule does not apply to his ideas, because the sheer audacity of the vision expressed in Our Republican Constitution can only carry it so far.
For one thing, it papers over the price attached to sovereign citizenship. Consider, for example, the right to enter into contracts that Barnett extrapolates from a sovereign’s power to enter treaties. The Supreme Court recognized this very right in its now-discredited decision in Lochner v. New York, a decision that Barnett effusively praises in his book. Subsequent decisions applying this so-called right to contract invalidated laws guaranteeing a minimum wage and protecting a worker’s right to organize. If you sign a contract agreeing to work for peanuts, who is the government to strip you of your sovereign right to make such an agreement?
Of course, there’s a very simple answer to this question. In the real world of kings and queens, weak nations are conquered by strong ones. Poor monarchs become vassals to wealthy ones. Might defines rights, and a king backed by a superior army is unlikely to stay their hand because their rival monarch screams “but what about my natural rights!”
Unlike Barnett, Trump at least appears to acknowledge that he has to win an election before he is allowed to make policy decisions that impact millions of American lives.
Similarly, without minimum wage laws, many workers will lack the power to bargain for better wages. Without unions, many workers will be subject to the mere whims of their employers. The Lochner case involved a state law limiting the hours worked by bakery workers in New York. Without that law, those workers routinely worked 13 to 14 hour days in sweltering dungeons riddled with rat holes, leaky sewage pipes and walls covered in roaches.
If Americans actually had to choose between a world where Jim Crow could rise from the dead and one where employers gain sweeping powers to exploit their workers, then we would face a very difficult moral dilemma. Ultimately, however, Barnett is beating a straw man. Virtually no one, and certainly no one of any influence, believes in the kind of unmitigated deference that Barnett associates with the Democratic Constitution.
For one thing, democracy, by its very nature, requires robust safeguards for individual rights. Jim Crow was insidious, not only because it demanded substantively inferior treatment for African Americans, but also because it systematically excluded them from participating in the democratic process itself. Modern day liberals rail against voter id, gerrymanders, and similar efforts to neutralize the voice of voters because they are direct attacks on democracy itself. A truly democratic constitution must include robust protections against voter suppression or else it cannot be described as a constitution that “sets up institutional mechanisms by which the desires of a majority of the people can be expressed.”
But even if Barnett’s Democratic Constitution is capacious enough to protect against Jim Crow, gerrymandering and voter ID, the fact still remains that virtually no one of influence believes in unchecked deference to democracies. Four of the justices that ignored Barnett’s pleas to repeal the Affordable Care Act also voted to strike down state bans on same-sex marriage, while three of the dissenters in the first case voted to uphold a state lawmaker’s power to engage in marriage discrimination. One of the best predictors of whether a justice will support bold progressive legislation such as Obamacare is whether they are also inclined to strike down restrictions on abortion. No member of the Supreme Court believes in the kind of judicial deference that Barnett ascribes to Plessy, and no one who admitted to such a belief could be confirmed to serve on a federal court.
There is no Democratic Constitution and there is no Republican Constitution, there is a United States Constitution which primarily leaves governance up to the people’s representatives, while also including important protections for individual rights. Whatever Barnett may claim, we do not need to choose between two extremes.
The Greater Threat
Despite its flaws, however, Our Republican Constitution is worth studying because it is one of the clearest and most unapologetic articulations of a world view that is currently competing for control of one of our nation’s major political parties. This world view’s primary rival, of course, is the swaggering, racist populism offered by Mr. Trump.
As explained above, however, both visions are at odds with fundamental democratic norms that have animated our nation’s politics for several generations. Thus, it is fair for those of us who care about government being responsive to the will of the people to ask which of these visions presents a greater threat to democracy.
To be sure, there is something deeply menacing about Trumpism. As Nathan Pippenger writes, its “key element is probably its undercurrent of violence, which amplifies the sense that Trump and his followers are uniquely willing to flirt with chaos.” Even so, and unlike Barnett, Trump at least appears to acknowledge that he has to win an election before he is allowed to make policy decisions that impact millions of American lives.
Trump, in other words, sews menace into the edges of our political system while leaving its core proposition — that the right to govern flows from the ability to win elections — intact. That is no small mitigating factor. Currently, polls show Trump nearly 9 points behind presumptive Democratic presidential nominee Hillary Clinton — and that’s assuming that Trump still manages to sew up the delegates he needs to win the GOP nomination in the first place. Both small-d democrats and large-D Democrats may view Trump as a nightmare today, but he is a nightmare they are likely to awake from soon.
Come November, moreover, voters can have few doubts what they are signing up for if they cast a ballot for Mr. Trump. To borrow a metaphor from Justice Antonin Scalia, many threats to democracy arrive dressed in sheep’s clothing, offering only an arcane tweak to a legal doctrine, or an agenda hidden until after an election is won and the wolf-in-sheep’s clothing is firmly ensconced in an elected office. Certainly, Professor Barnett’s own attack on Obamacare came dressed in many layers of the purest wool. There’s a reason why legal experts across the spectrum initially believed that he had no chance of prevailing — they did not recognize that a predator was loose in the flocks of our democracy until it was nearly too late.
Trump’s wolf, at the very least, comes as a wolf. And it will be seen as such if Trump himself is right that the American people eventually catch on when someone is selling little more than audacity.
If, by contrast, the American people elect a president more sympathetic to Barnett’s vision, then they are far less likely to realize what they have done until they wake up one morning in a very different nation. Justice Scalia’s seat still needs to be filled, and it most likely will be filled by the next president. Up to three other seats could become vacant in the few years after that. That could easily provide more than enough votes on the Supreme Court to reshape the Constitution into Barnett’s vision.