Washington, DC -- (ReleaseWire) -- 05/20/2016 --DAWN BENNETT: Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts. Barnett is also the recipient of both a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize. He's the author of 11 books and the most recent is titled Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. This book is a guide on how to achieve Republican greatness. Randy, welcome to Financial Myth Busting.
RANDY BARNETT: It's great to be here, Dawn. Thanks for having me.
BENNETT: Your new book discusses how the constitution is written in two completely distinct ways, as a democratic constitution and as a republican constitution. But you're not referring to political parties, but rather democratic, as in democracy, and republican, as in a republic. Can you explain the two different perspectives?
BARNETT: Absolutely, and that's part of the reason I wrote the book, is to figure that out. I've heard all my life that we live in a republic and not a democracy, but I was never entirely clear on what the difference was. And if you look up republic in the dictionary, it's defined by many dictionaries as representative democracy, so that really doesn't help you very much. What I discovered in the course of trying to figure out what the appropriate role of judges is in our country, under our constitution, is that republicanism took on a new meaning when we had our constitution. And it's a meaning based on two different readings of 'We, the people.' So let's just take 'We, the people.' If you think of 'We, the people' as a group, and then 'We, the people' as a group are supposed to rule according to their will, the will of the people, so to speak, the only way that works is if a majority of the people get their way; that's how the will of the people is reflected. And so we need a democratic constitution that provides a mechanism by which the majority can express their will. In such a society, in such a constitution, judges are problematic, because they're not elected, they're not representative, and if they invalidate a law, they're getting in the way of the will of the people. So judges are bad. And a republic conception of 'We, the people' is based on 'We, the people' as individuals, each of whom have unalienable rights to life, liberty, and the pursuit of happiness. And then the next line of the declaration says: 'To secure these rights, governments are instituted among men'. So first come rights, and then comes governments, and the government's purpose is to secure out pre-existing rights, and we need a constitution, a republican constitution, to both empower the government, so they can secure our rights, but also to protect us from the government's violating our rights. And in that world, judges play a very important role, because they, too, are serving the people, and part of the job they have is when the rights of the individual citizen are being violated by the government, judges should be able to step in and protect us from our servants in the legislature. In other words, the legislature does not express our will. They are not us. They are our servants and need to be held in line, and judges play a very important role in that.
BENNETT: So Randy, since the beginning days of the American Republic—I want to make sure I've got this right—'We, the people' have been viewed both as individuals and as a group, and that's what leads us to two different constitutional visions, right?
BARNETT: Well, I think in the very beginning, 'We, the people' was viewed as an individual, primarily. As I describe in the book, it was only in the 1820s and '30s with the formation of the new democratic party, which is the one that we have today, did they come up with this notion of the will of the people, which they really took from Rousseau. Rousseau was not a philosopher that influenced the founders; the founders were influenced by Locke and a bunch of other enlightenment philosophers. But Rousseau had this notion of the popular will or the will of the people, and they organized their political party around the idea that they, that one party—they called themselves the democracy—that party would represent the will of the people, their party alone. And that's kind of where that will of the people idea became popularized for the first time in the United States, was in the 1820s and '30s.
BENNETT: The founders' vision actually extolled life, liberty, and property and happiness, but again, in this world today, in 2016, that triad is no longer being honored anymore; would you say that's true?
BARNETT: Well, it's being honored a lot less than it should be. I mean, we wouldn't have a functioning society at all if we didn't have private property and we didn't have contracts; we do have private property, we do have contracts. But the more they get interfered with unreasonably by the government, the less well they do their job. And so we live in a country where our economy and out interactions are not as prosperous or as good as they could be if we really did have a more robust protection of our property, as well as our ability to enter into contracts of our choosing.
BENNETT: Now, Randy, you represented the National Federation of Independent Business and its lawsuit against Kathleen Sebelius. I think you were seeking to have ObamaCare declared unconstitutional.
BENNETT: Unfortunately Chief Justice Roberts, for a second time, disagreed. Do you think he's lost sight of the constitution as a document meant to protect individual rights, as opposed to the supposed collective right?
BARNETT: Yes. Very good question. This book was immediately provoked by my role in the ObamaCare case, where we got five justices to agree with us that an individual insurance mandate was beyond the power of congress to enact. So we had five votes; normally, when you win on the law, you win the case. But one of those votes, Chief Justice Roberts, turned around, and he said because he owed deference to the will of the majority in congress, he was going to give the statute a meaning that was not its natural meaning, but another meaning, a permissible meaning, which is that you had an option to buy health insurance, even though the statute said requirement, and you didn't have to pay a tax if you don't, even though the statute said penalty, and because of that he could uphold the law. And why was that? Because it was the job of the courts to defer to the majority will in congress if he possibly could. That is the democratic constitution. So what I wrote the book about was to explain; it's not enough to get the constitution right—we had five votes for getting the constitution right—you also need to get the role of judges in a constitutional republic right, and we only had four votes for that.
BENNETT: You know, the Affordable Care Act seems to be full of what I would call inartful drafting. And in my understanding, it was written behind closed doors, rather than through the traditional legislative process, and it was also passed using unusual parliamentary procedures. Does that mean that the act really doesn't reflect the type of care and deliberation that one might expect of such a big, important legislation?
BARNETT: Oh, absolutely. In fact, in my view, it was never intended to become law; it was intended to get 60 votes in the senate, and then, with the senate voting out their bill—the house had already voted out a completely different bill—it would go to conference committee. They would then agree on what the real bill was going to be, and who know what that would've been? Then they'll go back to both houses, and everybody would vote for that bill. But what happened is that Senator Ted Kennedy died, there was a replacement election, and the Tea Party organized to elect Scott Brown, who denied the Democrats the 60 vote threshold they needed in the senate, and as a result, the house had to either accept the senate bill in its entirety or get nothing at all, and they chose the senate bill. But what we got was a half-baked measure that was only meant to get out the door of the senate.
BENNETT: So isn't that bypassing the political process established by the constitution?
BARNETT: Well, it was all done under the rules. The house was free to accept the senate's version. It isn't the way it's normally done, but it was done to get around the Tea Party's effort to use elections and the normal procedures to block the implementation of what was an unpopular law then and remains an unpopular law to this day. So it wasn't unconstitutional, the way it was passed, but they overrode every safeguard a republican constitution puts in the way of enacting legislation.
BENNETT: Doesn't that lead to bad policy outcomes and foster the cynical belief that law today is now politics?
BARNETT: Well, statutes that are passed by congress, of course, are politics, and that's to be expected. But what is hopefully not to be expected is Supreme Court rulings; they're not supposed to be politics. I just spoke about it at the Heritage Foundation today. Essentially what Chief Justice Roberts told the American people is, 'Don't come to the courts for relief against an unconstitutional law. You have to go and get in politics if you want to undo this law. Don't come to us.' And once the Republicans, or once the Tea Party activists found out that the courts were not going to help them and the constitution was not going to help them, I think they got demoralized, and that's kind of how we got Donald Trump today.
BENNETT: You know, I know unfortunately you can't appeal the Supreme Court, but if you could, give me an idea of what you think Roberts got wrong.
BARNETT: He got wrong his role as a justice. He got the law right, as it turns out. His opinion-- in fact, when his opinion was read out loud in the court that day, everybody thought we were winning, because his opinions accepted our entire legal theory. What he got wrong, what he pivoted was on the role of the judge. That's why I wrote my book, to talk about what the role of the judge is in a constitutional republic. The role of the judge is to protect the rights of 'We, the people' as individuals, by enforcing the limitations placed on the power of congress and on the states. Well, in this case, congress had exceeded its powers, and it's the role of a judge to say so. The role of a judge is not to make up another meaning of the text that could conceivably be upheld, because he owes deference to congress. He does not; he owes deference to the American people, whose rights he is responsible for protecting. He is a servant of the people, just like congress is.
BENNETT: As you look ahead to the 2016 election and the way that the American political system seems to be evolving in general, do you think our constitution is doomed? And if so, what could possibly save us? And is there anything that can be done, besides hoping for some really good luck in November?
BARNETT: I don't think the constitution is doomed, and one of the geniuses of the founders is they put our constitution in writing, and as long as it's in writing and it has not been formally appealed, it can always be brought back. But it does require politics to bring it back, and unfortunately, during this cycle, we have what looks like two nominees, neither one of which is committed to the original meaning of our constitution's text. And so now we're going to have to gut it out and wait another four years, until we have another opportunity to bring back the constitution. And in the meantime, it's the responsibility of people in congress, as well as activists in the field, to fight for the constitution as long as we're allowed to. And at this point, it's still legal to fight for the constitution, and we need to try to do the best we can to keep the flame of liberty and constitutionalism alive.
BENNETT: How likely is a constitutional convention, led by states, which, by the way, doesn't seem entirely unlikely, since 30 plus states sued the government over both immigration and ObamaCare? I mean, if we ever get well-organized enough to try something like that, what should states strive to do?
BARNETT: Well, there's a convention of the states movement. And by the way, I think we all should call them an amendments convention, not a constitutional convention, because article five authorizes a convention for proposing amendments. So if we call it an amendments convention, it automatically limits its scope to changes. It's not a whole new constitution, like states get; they have constitutional conventions where they write a whole constitution. But at any rate, there's a convention of the states movement that is basically talking about having a convention, convened by the states, that would propose amendments. All an article five convention does is propose amendments that then have to be ratified by three-quarters of the states. Congress is not going to propose amendments to limit its own powers. The hope is that a convention of the states would propose amendments that would, for example, impose term limits on congress and other structural reforms that would protect the liberties of the people better than the constitution the Supreme Court is giving us by its interpretations.
BENNETT: You know, with the benefit of hindsight though, Randy, if you were to look back at the last 250 years and rewrite the constitution in a way that sought to prevent the republican constitution from morphing into a democratic constitution, what changes would you make, and how would this slow creep of stateism be stopped?
BARNETT: It's a great question. There are proposals that I have made. I actually offered, on Forbes.com, a list of unconstitutional amendments. I did this several years ago, while the Tea Party was going strong, and I printed them in my last book, Restoring the Lost Constitution. There's a number of provisions that I would advocate. No one of them is a magic bullet. For one thing, I would have term limits for congress; I think that would be important. For another thing, I would give the states the power to repeal any federal law or regulation; I think that would be an important structural check on federal power. And I think that there should be an amendment that says that the constitution shall be interpreted according to its original meaning. It wouldn't make courts do it, but it would make it easier for those of us who believe in original meaning to argue that that's what courts ought to be doing.
BENNETT: I want you to share with our listeners where you can get your book, which is titled Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.
BARNETT: Well, let me just say to your listeners that I wrote a book for the first time in 30 years that my wife could read from cover to cover, and she did and she really liked it. And she told me two days after she finished reading it that it's a book that stuck with her, because it tells an overarching story from the founding, but it does so by means of a lot of individual stories and anecdotes, including some personal ones, and so it sticks with you. And I think the best place to find it would be on Amazon.com where the hard cover costs $18, and the kindle is $13, and there's also an audio version. That would be the easiest way for your listeners to find the book.
BENNETT: Great. Randy Barnett, thank you for being on Financial Myth Busting.
BARNETT: My pleasure, Dawn. Thank you for having me.
For over a quarter century, Dawn Bennett has been successfully guiding clients through the complexities of wealth management. Dawn Bennett provides individual investors, corporations and foundations with holistic investment strategies. Her unique vision and insight into market trends makes Bennett a much sought after expert resource with regular appearances on Fox News Channel, CNBC, Bloomberg TV, and MSNBC as well as being featured in Business Week, Fortune, The NY Times, The NY Sun, Washington Business Journal in addition to her highly regarded weekly talk radio program - Financial Mythbusting. Through prudent and thoughtful advice, Dawn Bennett has strived to consistently provide the highest quality of guidance.
About Dawn Bennett
Dawn Bennett is CEO and Founder of Bennett Group Financial Services. She hosts a national radio program called Financial Myth Busting http://www.financialmythbusting.com.
She discusses educational topics and events in the financial news, along with her thoughts on the economy, financial markets, investments, and more with her live guests, who have included rock legend Ted Nugent, as well as Steve Forbes and Grover Norquist. Listeners can call 855-884-DAWN a as well as take podcasts on the road and forums for interaction.
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