So, I've done this thing with a couple people where I agree to read whatever stupid book they are pushing on me, but only if they agree to a book I suggest. And they have to actually show me they read it and tried to understand it, refute it if they want, but refer to the content of the book. I only did it with a few people, and none of them took me up on it. Which is what I really wanted anyway. Then, someone whodidn't know I was doing this, made the offer to me. If I read “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” then I get to pick a book. I haven't picked one yet. It's pretty dismal so far, I'm considering Dostoevsky.
So, here's a layman's analysis of a constitutional lawyer:
Although I agree that the country is currently divided over this idea of what the Constitution is, with some putting rights first and others putting government powers first, the arguments as laid out so far are poorly arranged. I'm not that far in, so maybe it gets better. Making it more difficult is that I'm seeing shades of arguments from the days when “Obamacare” was being argued in the Supreme Court. I can now see where my family members got their ideas. That's one of the worst things about a book like this. It's cherry picking history to begin with, then it lends itself to further cherry picking by people who read it, or read reviews of it or hear a headline on talk radio about it.
A sign of a good argument is that even someone who is not well versed in the details can grasp it and repeat it and have enough understanding to drill down into those details. It the argument flows logically, it is easy to remember. If the premises and facts relate to real things in the real world, you can track them down and easily find the points and counterpoints, the subtleties.
The author, Barnett, sets up a straw man argument early. After telling us a story about how he argued with people through his blog, which okay, he's a fancy lawyer, so it's a widely read blog, he starts in on defining this dichotomy of a Democratic Constitution vs a Republican Constitution. He repeats a few times that labels are limiting and he understands that not everyone can neatly fit into one or the other category, but then he goes back to those two categories as if they are truly separate. He says, "Under a Democratic Constitution, the only individual rights that are legally enforceable are a product of majoritarian will..." and "So, ... first comes government and come rights." I don't know anyone who thinks that way, and I didn't catch any specific examples, but he says it is “pervasive”.
He fails to point out during this part of the analysis that the Constitution includes the Supreme Court and a Bill of Rights. A right can't be changed by a simple majority. Barnett doesn't mention that. A law can be considered unconstitutional by 9 un-elected officials. Barnett keeps harping on the SCOTUS decision to support Obamacare. Anyone who has this view he describes as the Democratic Constitution is clearly wrong. He seems to be settingup for an attempt to create some view of the Constitution where the SCOTUS does what libertarians want, but not what liberals want.
He smuggles in his anti-Democratic bias in paragraphs like this:
“The chickens of the conservative commitment to judicial restraint had thus come home to roost. Ironically, conservatives had inherited their commitment to judicial restraint from the progressive supporters of the New Deal, who had opposed the Supreme Court holding Congress to its enumerated power. Just as judicial restraint was invoked by progressive justices to expand the scope of the federal government by Roosevelt appointees, now a conservative chief justice invoked judicial restraint to uphold a federal takeover of the health care system.”
If you didn't notice the weaknesses in the case he had just made in the preceding pages for this “takeover”, you'd think he just made the case that the Supreme Court was not doing its job of “holding Congress to its enumerated power.” He hasn't made the case for what those powers are either, so this is premature anyway. But, that explanation is coming soon, so let's give him some benefit of the doubt.
I've skipped the parts where he provides his definition of “Democratic Constitution”. I'll just point out that there is a case to be made that important founding fathers, Madison in particular, made good arguments for restricting the will of the majority. A simply democracy, where a 51% majority can make any law has many pitfalls. Barnett lays this out well. He also uses Edmund Randolph the first attorney general, if you'd like to look up more on that.
Then he turns to his side, and says this will be what the book makes a case for, a “Republican Constitution.”
An important factor for the Republican Constitution is “popular sovereignty”. Barnett introduces this as something ultimately resting with God, according to our founders, and stemming from the divine right of monarchs. But we rejected monarchs, the people were to become the sovereigns. Sounds nice, but poses a few problems. When he starts to talk about the Republican Constitution he starts saying things like the small subset of people in government are servants of the people. Flowery language that every politician on either side of the aisle uses, but we didn't hear that when he was describing the Democratic Constitution.
I should mention, a little later, he says we have a different view of “God” now, but he doesn't do a very good job of describing how that should affect our view of these principles.
He goes to say the Republican Constitution is there to limit the powers of the government. A feature of any Constitution, but he claims it only for his side. He returns to “sovereignty” and claims a list of powers that come with it that we don't actually have, like jurisdiction over your private property, and our right to use force just like a monarch. This is starting to get a little scary. He ends with a statement about the judicial branches job to restrict Congress from restricting this “just powers”.
So, after a bit of priming you with these ideas that we aren't a democracy and some one-sided quote mining of the founding fathers, not mention some plain old name calling, he goes back to the Revolutionary war to start his case. The Declaration of Independence is what we celebrate as the birth of the nation, and it pretty clearly lays out a “first come rights then comes government” framework. It was written during war and was an act of treason against England. It also justified that revolution on the basis of criminal behavior by that government. This justification gets back to the “popular sovereignty” and how that rests upon the “Laws of Nature”.
To help clarify this, he turns to a sermon by Reverend Elizur Goodrich at the Congregational Church of Durham, Connecticut. http://www.patheos.com/blogs/geneveith/2015/07/the-declaration-of-independence-and-natural-law/ Having ministers give such speeches was more common then, but that doesn't mitigate the fact that the speech is not of much use to us today. We know a lot more about what constitutes “moral” and do not need a minister telling us it is the Protestant version of God. Barnett spends several pages talking about the idea of “fixed” laws, but provides nothing to support the idea that our founders had correctly discerned that their sense of morals was fixed or what it was fixed by. Language was used to allow slavery to continue for example. Eventually that same language was used against the South, but that was a long time later.
That's part 1. I'll read on and maybe have to amend what I'm saying hear. We'll see.
Part 2. The majority caused slavery.
Barnett spends quite a bit of time in the middle showing how the “Republican” Constitution helped to end slavery. He makes no mention of abolition beginning in England or any or the European contributions to the philosophy of freedom or the science of showing Africans are just as human as the rest of us. He speaks solely to the maneuvering by American politicians. He can't avoid, but does not point out the significance of the 13th and 14th amendments being ratified by a United States that had no Southern members of Congress, because they had seceded. His theme is that the Republican viewpoint led to freedom of the slaves.
Barnett completely loses all of my respect when he finishes that bit of rewriting of history, then paints the progress movement that followed with a broad brush. He titles this section “The Progressive Attack on the Republican Constitution.” He says the “Democrats in the South got busy reestablishing their old order of racial subordination”, as if it was their values of majority rule that prompted that. Then lists a litany of changes made, such as “direct election of senators”, “struck at the excessive power of corporate wealth by regulating railroads”, “restricting lobbying, limiting monopoly”, “child labor laws, minimum wage” and several more. No mention that this was the time of “robber barrons”, when people with power in the railroads were literally committing murder and getting away with it. And no mention of what is wrong with not letting people make children work 12 hour days in factories.
He continues, “While progressivism is today remembered for its advocacy of economic legislation, it also favored the use of legal coercion to achieve other types of social improvements. Most modern “moral” laws aimed at sex, intoxicants, and gambling trace, not to the founding, but to the Progressive Era. These “vice” laws—going so far as to ban masturbation—were often advocated as “public health” measures and justified by what today would be considered pseudoscience. Likewise, policies of eugenics were also supposedly based on settled science. Of course, central to the northern progressive cause was the promotion of labor unions, which in those days were almost exclusively composed of whites and males. Blacks were left to form their own. And as we shall see, progressives supported laws that benefited white male workers by “protecting” women in the labor force on the basis of their inherent weakness.”
I include this last bit of hogwash because it shows that law making by Democrats or Republicans or conservatives or progressives, or whatever label you want to use, has nothing to do with the label. Moral laws promoted by pseudoscience are the stuff of conservatives today. Conservatives who would say they are upholding “natural laws”. That Barnett has found founding fathers and Supreme Court Justices who have claimed their agenda du jour is supported by some principle that is rooted in some universal sense of “right” is shown here to mean nothing. It was nothing more than rhetoric then and it is nothing more than rhetoric from him now. The way he sneaks in the racist and misogynist accusations is beneath a scholar.
His off hand use of the term “settled science” uncovers a bias that puts him in the category of internet crank. There is no such thing as “settled science”. A principle of science is that after you gather data, make a conclusion, and refine a theory, you immediately question everything you just did and start on the next experiment. Science is never settled. Lay people might think it is, or the politicians they elect might think or say it is, but if a scientist says it is, they aren't a very good scientist. In science, the best you can achieve is “well established theory”.
I'm just a little beyond the half way point, but I don't see a recovery from this as remote possibility. I can't imagine he will elaborate on that charge of “legal coercion”, since he didn't label it that when he talked about the politicking done by Lincoln to free the slaves. I suspect he will continue to use hot button issues like those darn unions and blame them on those darn Democrats.
Part 3 *****************************************
I've pretty much given up on this. He is repeating "progressive agenda" like a mantra. He still has not defined right and wrong. He applies his analysis one way when talking about conservatives and another way when talking about liberals. He defended a couple in California because they were growing marijuana for personal medicinal use, according to State law, but it was illegal by Federal law. I'm sure he's sincere about that. But only ever barely mentions the actual "natural laws" that progressives defend, using political maneuvering and legal trickery just like conservatives do. He barely mentions sweatshops or worker safety and the specific wrongs that they are, but spends a great deal of time on the legal details of how in general the New Deal laws came to be.
Here he goes after Obama for taking executive action.
"Very recently he issued sweeping executive orders to do even more to implement immigration policies he formerly had conceded required congressional action. President Obama negotiated an important and highly controversial agreement with a foreign power that he refused to submit to the Senate for its advice and consent, but is implementing unilaterally.
These actions by the president constitute an end run around our Republican Constitution’s separation of legislative and executive power. Although it may be fictitious to claim that Congress represents the “will of the people,” the fact that Congress is elected does provide a potentially important check on the abuse of government power by the president. The electorate cannot remove a president from office until his or her term expires."
No argument, he did an end run. Barnett doesn't mention the years of debate that preceded that end run. And he completely avoids the discussion he began the book with about natural laws. What natural law prohibits people from walking from an area on a map we call "Mexico" to one we call "Texas" to go to work? I can go to Mexico and work or play if I want, with relative impunity. What class of person am I, according to nature, that I can do that and others can't? Barnett just drills you with these examples, pointing out the Constitutional rule a progressive broke, while ignoring they were defending human rights. Worse, he ignores his own earlier analysis of how defenders of the Republican Constitution did the same.
He even ignores how we vote in the above quote. He says "the electorate cannot remove a president". In the next sentence, not shown, he says we can remove members congress during a President's term. I don't see much point in even engaging someone this irrational.