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Rights First, Government Second


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Rights First, Government Second


Randy Barnett’s new book calls for limits on the power of the federal g


Adam Freedman June 23, 2016 Politics and law


Our Republican Constitution, by Randy Barnett (Broadside, 320 pp., $26.99)

On April 2, 2012—just days after the Supreme Court heard oral arguments on the legal challenge to the Affordable Care Act in NFIB v. Sibelius—President Barack Obama took to the Rose Garden to warn the justices against taking the “unprecedented, extraordinary step” of overturning a law enacted by a democratically elected legislature. The president’s comments echoed those of liberal politicians and commentators who predicted dire consequences for the republic—and the Court—if Obamacare’s individual mandate were found unconstitutional. Though we may never know for certain, it appears likely that public pressure played a role in Chief Justice Roberts’s decision to uphold the individual mandate based on a tortured “saving construction” that rewrote the mandate as a tax provision.


For Georgetown law professor Randy Barnett, the Supreme Court’s Obamacare decision illustrates the peril of living under a regime in which the meaning of our supreme law must bend to the will of the majority—what Barnett calls the “Democratic Constitution.” In Our Republican Constitution, Barnett argues that the “Democratic Constitution” theory has it exactly backward: the Constitution isn’t intended to facilitate majority rule, but rather to restrain it, whenever necessary, to secure individual liberty. This is the “Republican Constitution” of the book’s title. Scissors-32x32.png



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