Our Republican Constitution: Securing the Liberty and Sovereignty of “We the People” by Randy Barnett (Northampton, MA: Broadside Books, 2016)
Ostensibly a work on constitutional history and proper constitutional interpretation, Randy Barnett’s, Our Republican Constitution, is actually theory disguised as history. He argues that the Founders, through the Declaration of Independence, grounded our constitutionalism on the abstract idea of “first right, then government.” Since rights predate government, they are the natural rights of the individual. American constitutional history, he claims, is a contest between individual natural rights and democratic majority rule. Unfortunately, however, Dr. Barnett, like so many others who call Nomos their muse, needs Clio’s intervention. To put it bluntly, Dr. Barnett’s history is not history at all. Rather, it is a law-office history of cherry-picking and decontextualizing both historical moments and important historical documents. Its concern is not an accurate recounting of historical reality, but with using the past as a forensic defense of his preferred constitutional interpretation. It starts with the contemporary policy preferences first and only then tries to find supporting historical evidence. This essay review challenges Dr. Barnett’s recounting of the Declaration and questions the historical premises upon which Our Republican Constitution rests. It employees the disciplinary standards of history, which emphasizes the importance of context in providing meaning to events, to reveal that the Founders’ did not base their notions of rights on natural rights, but upon historically derived civil rights embodied in the English constitution. This context leads to the essay’s argument that Dr. Barnett’s “rights first, then government” formula is not only foreign to the founding, but is in contention with it. The essay concludes with a warning to conservatives that what Dr. Barnett seeks is the conservation of an abstract philosophy that is distinctly liberal and ahistorical.
Dr. Barnett’s definitions frame his work. He defines the “Democratic” Constitution as the one Progressives have championed since the early twentieth-century: a collective vision of the “We the People,” popular sovereignty as an embodiment of the entire group, and constitutional interpretation and policy preference by majority rule. For Dr. Barnett, this Democratic Constitution is one of “government first, then rights,” with no guaranteed protections from the tyranny of the majority. As majorities change, so too does the enforcement of various rights. Thus, the “living constitution,” the idea that the constitution is organic and keeps apace of all social change, emerges as the linchpin of the Democratic Constitution. This majority-rule living constitutionalism requires judges to “defer” to the legislature and assume the constitutionality of all laws.
Randy Barnett’s Republican Constitution, on the other hand, rests popular sovereignty with the individual. The rights of these sovereign individuals not only predate the formation of government—“first rights, then government”—but also resemble those “enjoyed by sovereign monarchs” in that individuals possess property rights that allow them to defend and dispose of property in legal ways. Because these rights preexist government, the first duty of government is to protect individual sovereignty. This makes government the servant of the people rather than their ruler. It demands that the judicial branch relies upon the “original meaning” of the Constitution as the authoritative method of interpretation. As the book’s title makes obvious, it is this constitutionalism that Dr. Barnett advocates and defends as rooted in the American founding.
Considering American constitutionalism as a simple binary presents readers with a false dilemma: either support a constitutionalism that subjects rights to the whims of an ever-changing majority (the Democratic Constitution) or endorse Dr. Barnett’s abstract philosophy of natural-rights constitutionalism (the Republican Constitution). The discussion of rights during the late eighteenth century in America, however, was much more complex than what Dr. Barnett presents. Only by presenting history in this simplistic binary can Dr. Barnett affix his preferred theory onto the history of the American founding.
Dr. Barnett’s natural-rights theory rests upon his reading of the Declaration of Independence. His treatment is a full-throated defense of how “the Declaration shows the natural rights foundation of the American Revolution and provides important information about what the founders believed makes a constitution or government legitimate” (35). The Declaration, or rather the first two paragraphs of that document, claims Dr. Barnett, casts the only light upon which the text of the Constitution can be read properly. But this is too heavy a burden for the Declaration.
Scholars, in fact, have disagreed about how to interpret the Declaration and, by proxy, the American Revolution. Some scholars, represented in the works of Carl Becker and Michael Zuckert, have argued that Revolutionary-era Americans adhered to an individual liberalism springing out of the Enlightenment and the writings of John Locke. They tend to view the second paragraph of the Declaration as the explanation underpinning the Revolution. Other scholars—Bernard Bailyn, Gordon Wood, and J.G.A. Pocock in particular—favor republican theory as the key to understanding the Revolution. They emphasize the importance of republican virtue and the need to support the common good above individual liberalism. Yet another school of thought, represented by Nathan Hatch and James T. Kloppenberg, has maintained that Reformed Protestantism, with its call for moral order and belief in covenant theology, shaped the Revolution and Declaration. A fourth school of thought called Progressivism, championed in works of Merrill Jensen and Jackson Turner Main, concentrates upon class division and antagonism to explain the Revolution. A fifth interpretative school views the Revolution from an imperial and Anglo-American constitutional perspective. Scholars such as Charles McIlwain, Jack P. Greene, Barbara Black, Pauline Maier, John Phillip Reid, and Barry Alan Shain, have maintained that the Revolution is best understood as the failure of Anglo-Americans to agree upon an interpretation of English constitutionalism and imperial federalism. These competing schools of interpretation, none of which Dr. Barnett acknowledges, suggests that Revolution is much more complex than Dr. Barnett’s straightforward and simplistic account.
Of these various interpretations, the imperial school offers the most compelling arguments regarding Anglo-American notions of rights. It reveals in ways no other interpretation does how the Founders distinguished between two forms of rights, civil and natural. This distinction is critical to an understanding the founders’ conception of rights and the historical context necessary for a proper reading of the Declaration. Civil rights originated out of history and society and were more secure than natural rights because they resulted from historical accident and development. Civil rights were knowable, stable, and easily appealed to. Natural rights, however, were abstract, difficult to know, unstable, and susceptible to radical interpretation. As scholar Barry Alan Shain has noted “civil rights…unlike natural rights, were protected by a polity within the limits set by historical precedent and public need, not the absolute, though inexact and unenforceable, strands of natural law.” The historical nature of civil rights meant they could appeal to this experience as tangible proof that these rights existed. When Patrick Henry claimed “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past,” he aptly described why Americans adhered to civil rights. They did not believe, moreover, that fundamental English liberties such as trial by jury or habeas corpus were found in natural rights; they emerged out of historical circumstances and were confirmed by custom and traditions. Anchored in customary usage preserved and protected these rights from the arbitrary whims of governmental officials and temporary majorities. In this sense, the rights of Englishmen talk could be similar to natural rights rhetoric in that neither natural rights nor the rights of Englishmen were seen as being left solely to the manipulation of the ruling sovereign. During the imperial debates with Britain, however, Americans appealed most frequently and forcibly to the English common law and its foundation in traditional and customary rights of Englishmen, and why the idea of pre-societal rights was “rarely employed.”
Natural rights, on the other hand, played a minor and unimportant role in the American arguments against Britain. Although some Americans did advocate for a natural-rights argument against England, those arguments were the distinct minority. Many Americans considered natural rights a categorical distinction, an ephemeral notion that lacked specificity. Basing their resistance upon abstract rights, rather than traditional and well-accepted customary rights, would have been pointless and potentially counter-productive. Thus, Americans employed natural rights as a fallback argument, to be used only after exhausting all other assertions and defenses of customary rights. This explains why the official pronouncement, declarations, and remonstrances offered by the First and Second Continental Congress did not base their arguments upon natural rights. To be sure, pamphlets and other unofficial arguments against British actions invoked a natural rights argument, but nowhere near to the extent that Dr. Barnett—and other scholars for that matter—seem to believe.
The minor role natural rights thinking played during the founding can also be attributed the Founders’ inability to agree upon what constituted a natural right. They concurred that life, liberty, and the pursuit of happiness were natural rights, but, since these terms were categorical rather than specific, they disagreed on the practical application of these categories. Not only that, but, as is often the case when appealing to abstraction, they often disagreed over the very meaning of these categories. Take for instance the natural right to a liberty of conscience—or what we today call religious freedom. Although the Founders agreed that religious freedom was a natural right, their application of that right varied greatly. For every Virginian Bill for Disestablishment there were New England taxes paid to support the Congregational church. In New England, people were free to believe what they wanted, but they still supported a state-supported church.
The appeal to English customary rights means that most important part of the Declaration at the time of the Founding was not the second paragraph, but the list of grievances against King George III. Those grievances were not natural rights, but rather traditional and customary rights found within the English common law. English constitutionalism held that since these rights were beyond the reach of momentary rulers, the rulers had a duty to uphold and protect those rights. As the Declaration’s grievances make clear, Americans believed England had abandoned this traditional position and subjected them to arbitrary and tyrannical rule. The Revolution, therefore, was not in support of abstract theory, but in defense of well-established, well-known, and customary civil rights. It is this common law context, a context wholly missing from Dr. Barnett’s account, which provides an understanding of the Declaration of Independence closer to its historical reality.
If the second paragraph was of considerably less importance to the Founders than Randy Barnett believes, the natural question is why the paragraph was there in the first place? Again, historical context, rather than philosophical musings, explains its presence. England’s refusal to accept the American constitutional argument of time-immemorial rights, forced Americans to appeal to the abstract idea of natural rights to support their argument for independence. Once they declared independence, as Barry Shain aptly notes, appeals to natural rights disappeared with the Founders returning to more traditional arguments of historically-based rights. At the same time, the real purpose and intent of the Declaration was for neither domestic consumption nor abstract constitutionalism. Rather, the Congress needed the Declaration in order to woo foreign support for their cause. Appealing only to English common-law rights would have carried little weight with foreign monarchial courts who, with their lack of understanding or caring about the common law, could dismiss the American rebellion as little more than an intra-family dispute. But, by grounding their cause for secession in an appeal to the more abstract notions of natural rights, their argument was made more understandable and palpable to European powers. This foreign policy context is perhaps the most overlooked aspect of the Declaration.
Instead of a defense of customary rights Dr. Barnett’s view of the founding is a strikingly Lockean one, where the individual liberalism of natural rights trumps all other considerations. Putting aside whether this is a proper reading of Locke’s Second Treatise on Government (Dr. Barnett ignores Locke’s discussion on how individuals surrendered natural rights upon entering civil society), Dr. Barnett, once again, reads modern concerns and understandings back into the founding. He ignores two vital and interrelated notions, one societal and the other political, at the time of the Founding. Socially, eighteenth-century America was distinctly communal, not individualistic. Americans considered their rights in this corporate capacity. Individual rights certainly existed, but not at the expense of common good. Colonial, and later state, governments could—and often did—violate individual rights if they believed that right threatened the local society. In other words, and to paraphrase Dr. Barnett, eighteenth-century America was one where the “common good came first, then individual rights.” Belief that the common good supplanted individual rights, moreover, made the American attachment to the political ideas of republicanism, the second element Dr. Barnett ignores, all the easier.
Republicanism—not to be confused with Dr. Barnett’s use of the term—was possible only in a society bound by common moral order. Individual liberty, as Randy Barnett expresses it, would have been rejected by the Founders as radical and licentiousness because it placed the individual above society. Americans accepted the belief that state governments, through the elected majority, could regulate the morality of the society even at the expense of individual liberty. In fact, they believed it the duty of citizens to obey and conform to this social order. John Jay ably repeated this common refrain in American political thinking when he noted in 1790 how “civil liberty consists, not in a right to every man to do just what he pleases,” but in obeying “the equal and constitutional laws of the country… consistent with the public good.” Hence, Dr. Barnett’s argument of “individual sovereignty” resting in “We the People” is a wholly modern idea that would have been alien and rejected at the time of the Founding.
Dr. Barnett’s claim for a historical pedigree of natural-rights liberalism is framed as an exercise in recovery. As such, it is aimed at a conservative audience. By making natural rights liberalism the constitutionalism at the time of the Founding, it argues that this is the tradition conservatives should be fighting to recover and restore. As Russell Kirk reminds us, however, conservatism has always been about embracing the importance of tradition, historical continuity, and an enduring moral order—and abjuring the abstract. It sees “order and justice” as “the artificial products of a long social experience, the result of centuries of trial and reflection and sacrifice.” The characteristics of conservatism that Kirk describes, moreover, drove the Americans arguments during the founding. The ahistorical nature of natural rights liberalism, however, contains none of these conservative traits. It operates outside of history and thus clashes with the historical understanding of rights prevalent at the Founding. If natural rights exist, they certainly do not require historical examples to establish their validity and authority. Whether or not the American Founders endorsed natural rights would add nothing to their applicability or permanence as a feature of the American, or any other, regime. Natural rights would apply to all governments at all times and in all places. The premise of natural rights is essentially ahistorical and contradicts the assumptions of Anglo-American conservatism.
Why, then, does Dr. Barnett appropriate American history as an authority for his abstract theory of natural rights? The answer is provided implicitly throughout his text: He wants like-minded libertarians to be appointed as federal judges who will then write his theory into constitutional law. Since American constitutionalism remains a common-law system where precedent and custom still guide judicial interpretation, Dr. Barnett must use history to validate his theory. As historical context reveals, however, it is his theory of rights that is as foreign and dangerous to the Founders’ constitutionalism as that of the Progressives. It requires a set of Libertarian Philosopher-Kings, dedicated less to constitutional tradition, custom, and history, and more to philosophy in order to decide how “rights first, government second” works in practical application. Only they, and not elected bodies or even historical meanings and understanding of rights, can decide when a right comes before governmental action. This is not Democratic nor is even Republican in the sense that he uses those terms. It is certainly not conservatism or the Founders’ republicanism, although the founders would have certainly understood what Dr. Barnett was proposing. For his prescription is a recipe of dependency. Under Dr. Barnett’s proposal, Americans are subjected—or remain subjected, really—to the arbitrary will of federal judges. Since his theory rejects outright the idea that majority rule can trump appeals to individual rights, we are left to the mercy of the judges. More dangerously, it leaves the constitutional system to the mercy of the individual’s will. Armed with Dr. Barnett’s scheme, all it takes to invent a right is one person claiming that the right is natural, however unconnected to history or original intent and meaning, and has been violated by majority-backed legislation. From there, this single individual can appeal to the Philosopher-Kings trained in the same principle of “rights first, then government” to strike down that law. Under this natural rights theory, rights become unknowable, unstable, and susceptible to arbitrariness. This is not democracy, this is not republicanism, and this is not constitutional liberty. It is slavery.
If conservatives seek to defend the Founders’ constitutionalism, that defense should center on the actual historical contexts of American constitutionalism rather than ahistorical abstractions. It should pay attention to historical context and meaning of the constitutional background of the colonial era, the arguments of the Revolutionary period, the Constitutional Convention, the Ratification debates, and first sixty years of experience under the constitution. Dr. Barnett either ignores completely or glosses over these developments. This context uncovers a constitutional order and history that is the American constitutional tradition. Conservatives should hesitate to conserve abstraction over tradition and should follow the advice offered by John Dickinson at the Constitutional Convention: “Let experience be our guide. Reason may mislead us.”
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 I would like to thank Adam Tate for reading and offering great comments on earlier drafts of this essay.
 The best and most recent overview of the historiography of the Founding is Barry Alan Shain, The Declaration of Independence in Historical Context: American State Papers, Petitions, Proclamations, and Letters of Delegates to the First National Congresses (New Haven: Yale University Press, 2014), 1-20.
 Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (1922; reprint, New York: Vintage Books, 1958); Michael Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame: University of Notre Dame Press, 1996).
 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967; 1992); Gordon Wood, Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).
 Nathan Hatch, The Sacred Cause of Liberty: Republican Thought and the Millennium in Revolutionary New England (New Haven: Yale University Press, 1977); James T. Kloppenberg, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse” Journal of American History 74 (June 1987): 9-33.
 Merrill Jensen, The Founding of a Nation: A History of the American Revolution, 1763-1776 (New York: Oxford University Press, 1968); Jackson Turner Main, The Social Structure of Revolutionary America. (Princeton: Princeton University Press, 1965).
 Charles Howard McIlwain, The American Revolution: A Constitutional Interpretation (1923; reprint, Ithaca: Cornell University Press, 1961); Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens, GA: University of Georgia Press, 1986); Barbara Black, “The Constitution of Empire: The Case for the Colonists” University of Pennsylvania Law Review 124 (1976): 1157-1211; Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Norton, 1991); John Phillip Reid, Constitutional History of the American Revolution 4 vols (Madison: University of Wisconsin Press, 1986-1993; “The Irrelevance of the Declaration” in Hendrik Hartog, ed. Law in the American Revolution and the Revolution in the Law: A Collection of Review Essays on American Legal History (New York: New York University Press, 1981): 46-93; The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988); “In Accordance with Usage: The Authority of Custom, the Stamp Act Debate, and the Coming of the American Revolution, Fordham Law Review 45 (November 1976): 335-368; and Barry Alan Shain, “Rights Natural and Civil in the Declaration of Independence” in Barry A. Shain, ed., The Nature of Rights at the American Founding and Beyond (Charlottesville: University Press of Virginia, 2007): 116-162.
 Shain, “Rights Natural and Civil,” 126.
 Patrick Henry, 1775 speech recorded in William Wirt, Sketches of the Life and Character of Patrick Henry, 15th edition (New York: Derby and Jackson, 1860), 138.
 Shain, “Rights Natural and Civil,” 127.
 Ibid. Reid, Constitutional History of the American Revolution, abridged ed., (Madison: University of Wisconsin Press, 1995), 13-15; Shain, “Introduction” in Shain, ed., The Declaration of Independence in Historical Context, 7-13.
 Reid, “Irrelevancy of the Declaration,” 87-89; Shain, “Rights Natural and Civil,” 143; H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill: University of North Carolina Press, 1965; reprint: Indianapolis: Liberty Fund, 1998), 191.
 Shain, “Introduction,” and “Rights Civil and Natural,” 122-125.
 On this point see Shain, Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton: Princeton University Press, 1996), 28-33 and William E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts, 1760-1830 (Cambridge: Harvard University Press, 1975), 13-64.
 Quote taken from Shain, ibid., 31-32.
 For the idea of slavery, or dependency and arbitrary will, as antithetical to the Founders political thought see John Phillip Reid, The Concept of Liberty, 47-52 and Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998).
 John Dickinson, Speech at the Constitutional Convention” August 13, 1787 in Adrienne Koch, ed., (New York: Norton, 1987), 447.