VOLUME 101 NUMBER 2 SUMMER 2017 76 BOOK REVIEW JUDICATURE VOL. 101 NO. 2 Published by the Duke Law Center for Judicial Studies. Reprinted with permission. © 2017 Duke University School of Law. All rights reserved. www.law.duke.edu/judicature We, the people – whoever that is

BY GLENN HARLAN REYNOLDS

n February 22, The Washington The Supreme Court has issued import- Post added a sub-banner to its ant decisions following both approaches. Ofront page. Beneath the words Though the “democratic constitution” is “Washington Post” was the phrase, identified with the causes of progressives, “Democracy Dies In Darkness.” This the Supreme Court sometimes applied the generated a predictable degree of inter- “democratic” principle and sometimes net snark, including a comparison to a applied the republican approach during famous “Star Wars” line about the fall of the Progressive Era. the Galactic Republic.1 Among the latter cases were decisions But what does it mean when we talk like Buchanan v. Warley,6 which struck about “democracy” in the United States? down a racial zoning law in Kentucky, Or, for that matter, when we talk about our even though the law had been approved (not galactic yet) Republic? by a majority. Regardless of majorities, Those are the questions addressed in Our Republican Constitution: the Court held, the law infringed “those Randy Barnett’s new book, Our Republican Securing the Liberty and Sovereignty fundamental rights of property which it Constitution: Securing the Liberty and of We the People was intended to secure upon the same Sovereignty of We the People.2 And, despite terms to citizens of every race and color.”7 The Washington Post’s melodrama, they are BY RANDY BARNETT The Court so held even though a local questions that seem particularly salient Broadside Books / HarperCollins (2016) majority, in the exercise of the state’s just now. police power, favored such restrictions, The Framers, of course, famously and even though the Court “had recently disdained democracy in its pure form, and expressed sympathy for nonracial zoning, thus probably would have been unmoved based on progressive precepts that could by the Post’s banner. (And, sometimes, ant. One should not confuse either of also be applied to racial zoning.”8 they disdained newspapers, too.)3 They these with the modern Democratic and Likewise, in Bailey v. Alabama,9 the also created a structure of govern- Republican parties, whose fidelity to majority (over a dissent from Justice ment that departed considerably from either conception has been limited at Oliver Wendell Holmes) barred enforce- pure democracy, but that nonetheless best, with political opportunism gener- ment of labor contracts for black people retained important democratic elements. ally trumping constitutional fidelity.4 that, in reality, amounted to involuntary Reconciling these elements has been a As Barnett puts it, “At its core, this servitude. Whatever the formalities, the major problem for constitutional lawyers, debate is about the meaning of the first reality was that these contracts were an and theorists, ever since. three words of the Constitution: attempt (largely successful) to bind black In Barnett’s account, though we have ‘We the People.’ Those who favor workers to labor in a way strongly remi- only one Constitution, we have had, in the Democratic Constitution view niscent of the antebellum South.10 effect, two: What he calls a democratic We the People as a group, as a body, And, of course, in the famous (infa- constitution, in which the sentiments of as a collective entity. Those who favor mous?) case of Lochner v. New York,11 the the majority are determinative, and what the Republican Constitution view Court found that state laws regulating the he calls a republican constitution, in which We the People as individuals. This hours of bakers — which were really about structure and limitations on what the choice of visions has enormous real- discrimination against family-run bake- majority can do are much more import- world consequences.”5 shops operated by immigrants — violated JUDICATURE 77

a fundamental right to employment. The Thayerian-Holmesian across-the-board approach to judicial review; set against a state’s justifications for the law were suffi- formal rule of deference to legislative Supreme Court willing to enter into polit- ciently “tenuous” to give rise to “at least majorities guarantees that challenges by ical thickets that earlier courts had feared a suspicion that there was some other outgroups will fail, as did Myra Bradwell’s to part, it seemed appealingly humble. motive dominating the legislature than and Homer Plessy’s.16 Conservative Thayerism probably the purpose to subserve the public health Under the republican constitution, reached its peak — on the Court at least or welfare.” That motive was, as Barnett courts will inquire further into the legis- — with Chief Justice John Roberts’ opin- notes, helping large corporate bakeries and lature’s power to act and the legitimacy of ion in NFIB v. Sebelius.17 In terms echoing the union labor that they employed avoid Thayer, Roberts wrote: competition with smaller, leaner family- Our permissive reading of these powers 12 run businesses. For several decades, is explained in part by a general reti- When the “democratic constitution” cence to invalidate the acts of the was applied, however, the result was to no doubt in response to Nation’s elected leaders. “Proper dramatically extend state power over indi- respect for a coordinate branch of the viduals. Under the democratic approach, the rather expansive government” requires that we strike as exemplified by scholar James Bradley jurisprudence of the down an Act of Congress only if “the Thayer’s theories of judicial restraint, lack of constitutional authority to pass courts were to uphold majority decisions Warren Court, quite [the] act in question is clearly demon- except in cases of “clear mistake.” a few conservative strated.” Members of this Court are Such restraint, says Barnett, led vested with the authority to inter- directly to such judicial abdications as theorists embraced Thayer’s pret the law; we possess neither the the Supreme Court’s decisions in Plessy expertise nor the prerogative to make v. Ferguson, upholding racial segrega- approach. Thayer’s judicial policy judgments. Those decisions are tion,13 and Bradwell v. Illinois, upholding minimalism was popular entrusted to our Nation’s elected lead- the exclusion of women from law prac- ers, who can be thrown out of office if tice.14 As Barnett writes, “It is plain that among conservative the people disagree with them. It is not Plessy v. Ferguson, decided three years after critics of the Warren Court’s our job to protect the people from the conse- Thayer’s article appeared in the Harvard quences of their political choices.18 Law Review, was the embodiment of this expansive approach to Yet, however understandable Thayerism deferential approach. As Justice [Henry might be as a reaction to the enthusiasms Billings] Brown wrote, ‘We cannot say judicial review; set against of the Warren Court, it is rather unsat- that a law which authorizes or even a Supreme Court willing isfactory as a judicial philosophy. When requires the separation of the two races in judges “defer” rather than doing their public conveyances is unreasonable.’”15 to enter into political jobs, liberty suffers. Plessy, after all, is And this question of deference, or not, thickets that earlier hardly a high-water mark for the Court. to the decisions of legislative majorities is (Neither, for that matter, is Sebelius.) at the core of Barnett’s distinction between courts had feared If we are to have a written constitu- democratic and republican constitu- tion that serves to limit the actions of tions. Under the democratic constitution, to part, it seemed the legislature, the executive, and state courts will (at most) protect individuals appealingly humble. governments — a notion that, for some from concrete violations of specifically reason or another, seems to have become protected rights (such as free speech). more popular since the 2016 elections — Generally speaking, minorities will lose: then that constitution must have a clear True, Bailey v. Alabama and Buchanan the interests the legislature is advancing. meaning and be enforced reliably by the v. Worley can be considered outli- That, of course, is a highly relevant third branch. Viewed from that perspec- ers during a period in which the civil question for today’s constitutional theo- tive — and that is very much Barnett’s rights of blacks were being trampled. rists on the right. For several decades, no perspective — such “deference” looks a lot Nevertheless, they reveal that a general doubt in response to the rather expansive more like buck-passing, if not outright across-the-board stance of skepticism jurisprudence of the Warren Court, quite cowardice. There’s nothing about defer- toward restrictions of liberty can help an a few conservative theorists embraced ence in Article III, after all. “out group” before it is politically power- Thayer’s approach. Thayer’s judicial mini- As Barnett notes, scholars and justices ful or appealing enough to demand malism was popular among conservative in the Thayer/Plessy era made a telling special judicial protection. In contrast, a critics of the Warren Court’s expansive shift, from talking about the “duty” — 4 78 VOL. 101 NO. 2

however reluctantly performed — of (like John Paul Stevens), former Cabinet courts to strike down unconstitutional If we are to maintain officials (like Robert Jackson), or capital legislation, to talking about the “power” defense attorneys. The Supreme Court that of courts to do so. This shift transformed the republican constitution, decided Brown v. Board of Education had failure to police governmental overreach five members who had served in elected (previously a failure to perform a duty, we will need justices office. The Roberts Court has none. What and thus a dereliction) into a decision not who are made of we have instead are nine perfect judi- to exercise a power, which could thus be cial thoroughbreds who have spent their characterized as an admirable act of self- sterner stuff. entire adulthoods on the same lofty, narrow restraint, rather than a refusal to perform. trajectory.”22 Such people may be admira- But it is not “restraint” to ignore ble, but are they able to stand up against one’s core function. And that brings us power and expertise lie. Do such potential ruling-class groupthink? To the (limited) to Barnett’s message. The way to “secur- justices exist? extent that they are, it is in spite of their ing the liberty and sovereignty of We the Well, yes. I find it hard to imagine backgrounds, rather than because of them. People,” as his subtitle puts it, is essen- Barnett, for example, succumbing to Beyond the Supreme Court, of course, tially for courts to grow more aggressive pundits’ bullying or to the “Greenhouse the ultimate check on governmental over- — or less timid and lazy — about polic- Effect.”21 But if we want our Supreme reach — though one that has, so far, been ing the boundaries of federal and state Court justices to be made of sterner stuff entirely notional — is a Constitutional power. As Barnett writes: than we have seen lately, perhaps we need amending convention precipitated by “We • Increasingly, people are recognizing to look somewhere other than where we’ve the People.” The amendments proposed that under the separation of powers, been looking lately. by such a convention, if ratified by three judges too are servants of the people; Traditionally, the Supreme Court quarters of the states, could restore a less • As our servants, their most important contained many former politicians (like majoritarian, more “small-r” republican responsibility is assessing the consti- Justice Robert Jackson, Chief Justice Earl constitution. tutionality of measures enacted by the Warren, or, for that matter, Chief Justice There is room for doubt here. If our more “popular” branches; [and] John Marshall). More recently, however, the first Constitution did not restrain judges • No longer should the servants or Supreme Court has been entirely made up and legislatures, why would a new one agents of the people who are designat- of Ivy Leaguers, mostly with backgrounds do better? Simply by emphasis? (On the ed “legislators” be the exclusive judge in academia or the appellate courts. (Every 200th anniversary of the Bill of Rights, I of the scope of their own powers.19 justice graduated from Harvard or Yale entered an amendment contest by propos- except for Ruth Bader Ginsburg, who ing that the Ninth Amendment be altered But how do we get there? In part, says got her law degree from that scrappy Ivy by adding “And we really mean it!”) Barnett, through education. Voters need League upstart, Columbia University.) As Of course, the value of the sword of to understand our constitutional heritage. Dahlia Lithwick recently wrote, “Eight Damocles is that it hangs, not that it falls. But more directly, we need to select judges once sat on a federal appellate court; five A credible threat of such a convention, or who will not be afraid to do their jobs. have done stints as full-time law school the existence of such a convention with This isn’t easy. Chief Justice Roberts professors. There is not a single justice proposed amendments circulating among was a shining star of the Federalist Society, ‘from the heartland,’ as Clarence Thomas state legislatures, would probably have a but when he faced one of the greatest has complained. There are no war veterans salutary effect. legislative power-grabs of all time, he In the end, however, we will keep blinked. Faced with a bullying op-ed neither a republican constitution nor a campaign by supporters of ObamaCare, GLENN HARLAN democratic one unless the electorate as a he switched position, and bent over back- REYNOLDS is the whole wants it. If the public understands wards to sustain the Affordable Care Act Beauchamp Brogan the Constitution as a powerful check on mandate on the rather flimsy ground that Distinguished political overreach and a protection for it was a tax, not a penalty.20 Professor of Law freedom and civil society, then no special If we are to maintain the republican at the University measures will be required. If the public constitution, we will need justices who of Tennessee at fails to understand the Constitution, and are made of sterner stuff. After all, if Knoxville, where he sees the Supreme Court as essentially the Court is to stand up to the political teaches and studies administrative law, just another political branch, then the branches when they overreach, it will need constitutional law, First Amendment, Constitution will cease to matter much. to be able to withstand political assaults, internet law, second amendment, space I leave it as an exercise for the reader to since that is where the political branches’ law, and technology. determine where we stand now. JUDICATURE 79

1 Tweet from Alex Griswold, February 22, 2016, 10:56 4 As Barnett notes, “Modern-day Republicans can 19 Barnett, supra note 2 at 249. a.m. “The Washington Post’s new slogan is almost be just as opportunistic about republicanism as 20 See Reynolds & Denning, supra note 13 at 819–822. as good as George Lucas dialogue. Reflect on that.” Democrats are about democracy.” Barnett, supra (“The opinion’s odd construction, and the curious Available at https://twitter.com/HashtagGriswold/ note 2 at 221. And vice versa, I’d say. refusal of the dissenters to sign on to the Commerce status/834431665678200832. 5 Id. at 19. Clause portion of the Chief Justice’s opinion, among 2 Randy E. Barnett, Our Republican 6 Buchanan v. Warley, 245 U.S. 60 (1917). other things, suggested some last minute, behind- Constitution: Securing the Liberty and the-scenes maneuvering. On cue, the opinion’s 7 Barnett, supra note 2 at 141. Sovereignty of We the People (2016). release was immediately followed by a flood of 8 Id. at 142. 3 See, e.g., Letter of Thomas Jefferson to John Norvell stories that the Chief Justice had changed his vote 9 , 219 U.S. 219 (1911). (June 11, 1807), https://www.loc.gov/resource/ Bailey v. Alabama after initially siding with conservatives to strike it mtj1.038_0592_0594/?sp=2&st=text. “To your 10 Barnett, supra note 2 at 139–140. down. Moreover, the story broken by Jan Crawford request of my opinion of the manner in which a news- 11 Lochner v. New York, 198 U.S. 45 (1905). alleged Roberts did so in response to the mounting pressure on the Court to uphold the Act. The allega- paper should be conducted, so as to be most useful, I 12 Barnett, supra note 2 at 138. should answer, “by restraining it to true facts & sound tions outraged conservatives and contributed to the 13 Plessy v. Ferguson, 163 U.S. 537 (1896). principles only.” Yet I fear such a paper would find few debate over the meaning of the recent decline in the 14 subscribers. It is a melancholy truth, that a suppres- Bradwell v. Illinois, 83 U.S. 130 (1873). Court’s public approval ratings.”) sion of the press could not more compleatly deprive 15 Barnett, supra note 2 at 128–29. 21 The reference is to the powerful effect that cover- the nation of it’s benefits, than is done by it’s aban- 16 Id. at 144. age by The New York Times’ Supreme Court reporter, doned prostitution to falsehood. Nothing can now 17 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012). Linda Greenhouse, had in moving conservative be believed which is seen in a newspaper. Truth itself justices toward liberal views. Greenhouse has retired, 18 132 S.Ct. at 2579 (2012) (emphasis added). See also becomes suspicious by being put into that polluted but the term has lived on to reference the general Glenn H. Reynolds & Brannon P. Denning, National vehicle. The real extent of this state of misinforma- ability of a left-leaning press to exercise influence on Federation of Independent Business v. Sebelius: Five tion is known only to those who are in situations to (at least initially) right-leaning justices. Takes, 40 Hastings Const. L.Q. 824–28 (2013). confront facts within their knowledge with the lies (“Roberts comes from a generation of Federalist 22 Dahlia Lithwick, Yale, Harvard, Yale, Harvard, of the day. I really look with commiseration over the Society members who were heavily exposed to such Yale, Harvard, Harvard, Harvard, Columbia, great body of my fellow citizens, who, reading news- theories of judicial restraint, via thinkers such as The New Republic, Nov. 13, 2014, https:// papers, live & die in the belief, that they have known Robert Bork and Alexander Bickel. It seems quite newrepublic.com/article/120173/2014-su- something of what has been passing in the world likely that the echo of Thayer in his opinion was preme-court-ivy-league-clan-disconnected-reality. in their time.” Available at https://www.loc.gov/ entirely conscious and intentional.”) resource/mtj1.038_0592_0594/?sp=2&st=text.

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