Randy Barnett is not just an academic publishing so he won’t perish. He is making a case for what he calls “a Republican Constitution” and a judiciary committed to protecting the rights of every American, including those whose views are out of favor with the majority at any given moment. In his analysis, the fight for what I will call “a person-focused theory of constitutional interpretation” has three phases: from the Founding until the Civil War, from Reconstruction to the New Deal and Great Society, and finally from the Rehnquist Court (1986) until today. In this view, the years since 1986 have marked an “on again/off again” journey towards recovery of a more person-centered or what he would call a Republican Constitution.[1]

From Enumerated Powers to a New Federalism

These constitutional eras are conveniently understood as:

• “Enumerated Powers Federalism,” where the states remained the final sovereign power and the Federal government was limited to those expressly found in the Constitution (1789 to 1865);
• “Fundamental Rights Federalism (1865 to about 1976,” where the states were limited in their sovereignty by the fundamental rights guaranteed by the 13th and 14th Amendments and the gradual expansion of federal power over the nation’s economy; and
• “State Sovereignty Federalism” (1976 to the present), what I call “Balanced Federalism,” in which the Court tries to preserve the role of state governments without rolling back the substantial expansion of Federal power since the Civil War Balanced Federalism has tended to slightly roll back some of the most controversial progressive constitutional innovations of the 20th century. [2]

Balanced Federalism provides greater autonomy to the states from congressional oversight by using a textually faithful safeguard, aiming to combine Enumerated Powers Federalism with Fundamental Rights Federalism to create a more balanced federal system. The goal is to maximize state sovereignty and restrict the federal government to its enumerated powers, except when states violate the 14^th Amendment or other constitutional provisions.[3]

Separation of Powers

A critical aspect of Balanced Federalism is the doctrine of Separation of Powers. Those not familiar with constitutional history often decrie the fact that there are significant Constitutional restraints on what a president, Congress, and the courts can do. This was not accidental. The founders understood that it was dangerous to concentrate power in any one branch of government and that it was profitable to create checks and balances on the actions of any department. The doctrine of separation of powers is a mechanism by which the Constitution prevents one branch of government from abusing its power without constraint.

The object of both the Separation of Powers and the situations in which the Constitution requires approval of one branch for the actions of another (such as Congressional approval of presidential nominees) is precisely to limit the powers of one branch by allowing other branches to be involved in certain decisions. For example, the President appoints but Congress approves nominees to federal judgeships, which acts as a constraint on both the President and Congress, as well as the Courts.

When one party controls both the Congress and the Presidency for a substantial period, the prevailing ethos allows a particular group to wield substantial power, as happened during the long Presidency of Franklin Roosevelt. More troubling, however, has been the growth of what is called the “Administrative State.” [4] During the period from the New Deal until recently, Congress often passed legislation that was pretty vague on complex matters, such as the environment, leaving various agencies free to create substantial bodies of law with minimal checks and balances. Even more worrisome is the fact that these agencies promulgate regulations, enforce those regulations, and often adjudicate claims under such regulations —a patent violation of the principle of separation of powers. There was simply no check on bureaucratic power.

In Dep’t of Transp. v. Ass’n of Am. Railroads, Justice Thomas put the problem well:

At the center of the Framers’ dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that “‘[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’ ”). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: “to have a standing rule to live by . . . made by the legislative power,” and to be free from “the inconstant, uncertain, unknown, arbitrary will of another man.” Locke §22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free.[5]

Thomas went on to conclude:

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.[6]

In various ways, from the late 19^th century to the early 21^st century, the courts, in the name of judicial restraint, actually allowed the creation of a nearly unrestrained federal bureaucracy. Justice Thomas believes that it is necessary to rebalance the power structure impacting bureaucracies to avoid an unhealthy concentration of power.[7]

Avoiding Arbitrary and Irrational Laws

In addition to supporting the separation of powers, Barnett emphasizes that the court must define the limits of the powers granted to bureaucracies by the Constitution. One reason a federal judiciary was deemed necessary was the concern that the legislative or administrative branches might favor their interests and exceed their constitutional authority. Specifically, when the courts adopt a policy of upholding a piece of legislation or legislative rule if a reasonable person could believe it is the right course of action, they have essentially abandoned their constitutional duty to protect the people from the other two branches of government. Congress must enact laws and cannot pass this responsibility along to unelected bureaucracies.

Additionally, the judiciary must be cautious not to act as a kind of super-legislature. Since the adoption of the 13th and 14th Amendments, the Court has been tempted to create rights or impose limitations on rights not explicitly found in the Constitution, often through what might be called a substantive due process approach. Before the period around the New Deal and extending through the end of the Progressive Era, courts were enticed to find substantive unenumerated rights in the Constitution.

As Barnett points out, this was not the approach the courts took even after the 13th or 14th Amendments were ratified. Instead, these amendments protected the right of individuals not to be deprived of their rights without due process—such as a trial before imprisonment—and to be treated equally in similar situations. For due process to be correctly applied to individuals, there must be an impartial judiciary (not a politicized one) making an unbiased judgment on whether a specific statute or administrative act exceeds or stays within the powers of the government. This is a duty that courts cannot pass on to anyone else. When faced with such questions, courts must perform a two-step analysis.

1. Was the legislature or administrative agency acting within the enumerated powers given to it under the Constitution? This implies that the courts must be willing to look at the restrictions on federal power contained in the Constitution and determine whether the federal agency acted within its powers.
2. Was the restriction necessary and proper to the accomplishment of the responsibility given by the constitution? In other words, there must be a judgment of whether or not the action was excessive.[8]

In Barnett’s view, in several areas, the courts have been willing to let Congress legislate or administrative agencies legislate, enforce, and adjudicate matters that are not necessarily appropriate for the federal government. For example, it’s highly unlikely that either the founders or the drafters of the 13^th and 14^th amendments considered that they were giving the federal government the right to prevent private individuals from growing crops for private consumption on their own private property.[9]

Recovering a Person-Centered Constitution.

During the Progressive Era, legislation was often upheld if any hypothetical person could find a rational reason why it was appropriate. Such a stance deprives individuals of the ability to complain about how that legislation or administrative action affects them personally. At the core of restoring a Republican Constitution—what I call a Person-Centered Constitution—is a judiciary that safeguards individuals from excessive restrictions on their personal freedoms guaranteed by the Constitution. This can only happen if the judiciary is willing to act when, in response to popular demand or the interests of various vested groups, Congress or administrative agencies impose improper limits on that freedom.[10]

To secure the future of our form of government, Barnett believes that several steps need to be taken. Among them or the following:

• A concentrated effort to educate citizens concerning our constitutional heritage;
• Selecting judges who can and will place the interest of individual citizens above the “collective will” as determined by Congress or administrative agencies.
• Enacting constitutional amendments that limit the federal income tax, establish term limits for members of Congress, and create some kind of repeal process for federal legislation vested in the states.

Besides those Barnett suggests, I believe there are two others that are of significant importance:

• A constitutional amendment to bar the federal government from issuing unfunded mandates.
• A constitutional amendment requiring the federal government to balance its budget, except during times of war or declared national emergency, without needing a two-thirds approval from Congress.
• A constitutional amendment prohibiting Congress members, Senators, and their families and associates from trading stocks based on inside information or profiting from federal contracts, directly or indirectly.

Much of the distortion of our federal system could be reduced if the federal government did not have an unlimited amount of money to waste on questionable projects and lacked the authority to use funding to influence state governments. Congress would also benefit from a balanced budget amendment because it would help focus attention on fair and appropriate taxation levels and whether funding requested by private interests or federal agencies is genuinely necessary.

Recent disclosures reveal that federal agencies are essentially recycling federal dollars to private organizations, which then flow back into the pockets of political parties. In some cases, politicians personally profited by these schemes.  This should be made a crime.

Conclusion

I recommend that my blog readers buy Our Republican Constitution and read it themselves. Although I have spent five weeks on this project, I had to skip over many very interesting and important parts of the book. I am not a constitutional scholar in my ability to render for my readers the depth of his argument is limited.

I’ve mentioned before that this is part of a longer-term project I’m working on to understand. Still, I already believe some fundamental issues are distorting our political system in ways that harm our way of life and could impoverish our children. Additionally, longtime readers of my blog know that, although this emphasizes the importance of persons, my general philosophical legal theory does not discount the power of communities to shape the lives of their members. Barnett essentially works within a post-Enlightenment, modern way of thinking about politics and constitutional law. I wonder if there needs to be a recognition that constitutional law should acknowledge both the will of the people and the rights of individuals within a new framework for addressing the problems involved. That is the question I am trying to answer.

Copyright 2025, G. Christopher Scruggs, All Rights Reserved 

[1] Unfortunately, in our current politically charged environment, readers often understand the terms “Republican Constitution” and “Democratic Constitution” with reference to the current political parties by those names and react to the argument based upon their preferences. In order to avoid this, I am using the terms “Person Centered Constitution,” “Collective Will Constitution,” and “Balanced Constitution” to refer to certain options.

[2] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York, NY: Broadside Books (Harper Collins, 2016), 189-198.

[3] Id, at 199-200.

[4] In 1900, the federal workforce was relatively small, primarily focused on traditional government functions. Today, federal employment is about 3,000,000 people. In 1900, that number was minuscule.

[5] Dep’t of Transp. v. Ass’n of Am. Railroads 575 U.S. __ (2015), at 10 (slip opinion).

[6] Id, at 27

[7] As mentioned last week, there is reason to believe that the Court sees this problem and is attempting to correct it. In Loper Bright Enterprises v. Raimondo v National Resources Defense Council No. 22–451, 603 U.S. __ (2024), the Court overruled their 1984 decision in Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984), which gave rise to the doctrine known as the “Chevron Doctrine.” Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was found to be reasonable on some ground.

[8] Id, at 231.

[9] Wickard v. Filburn 317 U.S. 111 (1942). This case involved the expansion of the Commerce Clause to growing wheat by a farmer for his private use. In recent years, the Court has backed away from this overly expansive stance. United States v Lopez 514US 549 (1995).

[10] Id, at 245.