Constitutional Commentary








This Essay, written for a symposium on Randy Barnett’s new book Our Republican Constitution, questions whether courts are well suited to the role Barnett would have them assume. Barnett is deeply skeptical of democratic majorities, and he argues that judicial deference to them is inconsistent with the basic premises of the Constitution. Rather than affording statutes a presumption of constitutionality and reviewing them under the lenient “rational basis” test, Barnett insists that courts ought to treat statutes as presumptively unconstitutional and review them under the more aggressive pre-New Deal standard. I express doubt about the historical support for Barnett’s approach, contend that it conflicts with the realities of the legislative process, and observe that Barnett might be overly optimistic about the institutional capacity of courts. That said, Barnett’s book brings welcome attention to the often misunderstood concept of judicial restraint. Many who embrace a general rule of deference to democratic majorities will nonetheless agree with Barnett that such deference does not authorize a court to distort statutory or constitutional text to save a statute. Fidelity to the law means going where it leads, and sometimes it leads to the conclusion that a law is unconstitutional.

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