Jason Mazzone


Constitutional Commentary








This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.

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