This week, I am launching a new series of blogs on the Constitution based on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. [1] Due to the excessive politicization of our culture, it is important right at the outset to note that the word “Republican” is used as in political science and philosophy and not in its partisan meaning.
A republic consists of a form of government in which the leadership is not vested in a king, tyrant, or dictator, but in constitutionally designated leadership. A republic is organized in such a way that governing power belongs to that body of citizens entitled to vote, and the legislative and executive powers of government are exercised by the leaders and representatives elected by those citizens to govern according to law. [2] The United States of America is a republic in this sense of the word, and the founders were very deliberately forming a constitutional republic.
Before the adoption of the Constitution, the United States was not a republic. It was a confederation of sovereign states, which were themselves republics. This form of government did not work well, leaving the United States militarily, economically, and politically weak and unable to function. Thus, the Constitutional Convention was called in 1987. The convention opened on May 25, 1787 in Philadelphia, Pennsylvania. The story of the convention is beyond the scope of this blog, but it merits study by every American. There are many fine studies of the event, the most popular of which is “Miracle in Philadelphia” by Catherine Drinker Bowen. [3] The convention is unique in history for the quality of its leadership and the experience and judgment of its members, in particular James Madison, whose leadership and scholarship profoundly impacted the convention and its outcome.
The Preamble of the Constitution reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [4]
Barnett’s book is a detailed discussion on the meaning of the term “We the People of the United States” and defends his view that the term should be understood as referring to individuals rather than as a collective, “the People.” As this blog continues, you will see that a lot is at stake in how one interprets the Constitution—as either a collective or as referring to individuals.
“Republican” vs. “Democratic” Constitution
Barnett begins by defining just what he means by a “republican” as opposed to a “democratic” constitution:
Under a democratic constitution, the only individual rights that are legally enforceable, or a product of majoritarian will whether the wheel of the majorities in the legislature who create ordinary, legal rights or the Will of majorities who ratify the constitution and it’s amendments and created constitutional rights. [5]
…
Under a republican constitution, then, the first duty of government is to equally protect these personal and individual rights from being violated by both domestic and foreign transgressors. The agents of the people must not themselves use their delegated powers to violate the very rights they were empowered to protect.[6]
The first tradition maintains that today’s majority should not be limited by the influence of past majorities in interpreting the Constitution. The Republican view argues that the Constitution’s meaning should not change over time and that it primarily exists to protect individual freedoms from the tyranny of hostile majorities. A Republican Constitution considers the individual rights of the people to be more important than the collective rights of a majority or their representatives.
Protection of Individuals
In Barrett’s view, the idea that the “will of the people” should necessarily dominate political discussion and allow courts to disregard the explicit language of the Constitution is mistaken. The “will of the people” was not what the Constitution aimed to protect. Instead, the Constitution was designed to safeguard the rights of individuals against the government and its leaders at any given time. Individual rights come first, and after individual rights, the government. Those in government are to serve and be subordinate to, not an abstract concept, but the actual people who make up the citizenry at any moment.[7]
In the Declaration of Independence, the Continental Congress put it this way:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. [8]
For the drafters of the Declaration of Independence, people have rights (what have been historically called “Natural Rights”) that precede the institution of government because they are inherent in the human condition. One reason the defense of personal rights against majorities is so challenging today is the decline of a natural law orientation in government and among those governing. If government is merely the rules made by those in power, then there are no such things as “unalienable rights to life, liberty, and the pursuit of happiness.”
This idea conflicts with the views often expressed by Justice Oliver Wendell Holmes, whose opinions remain influential even today, years after his last decision as a justice of the United States Supreme Court. Holmes’s theory of law starts with the idea that the majority of people (what the “dominant forces of the community want through their elected representatives” and “want hard enough to disregard whatever inhibitions stand in their way”) can do whatever they wish. Therefore, Justice Holmes saw law as a tool for achieving an end set by the lawmaker, with almost no fixed constitutional limits on what the majority might want to do. As one commentator said:
Holmes believed that the Supreme Court presides over an empty Constitution — empty of purpose, of moral content, of enduring meaning — bereft of any embedded principles defining the relationship between man and the state. This distinctively Holmesian view, novel in 1905, is today’s orthodoxy. It dominates constitutional interpretation, defines public debate, and furnishes a litmus test for evaluating nominees to the Supreme Court. [9]
In short, Holmes’s perspective is that the dominant powers of an era and society create or deny rights through acts of legislative, administrative, or judicial will, enforced by the state’s police power. Holmes believed that objective values would prevail in the “marketplace of ideas:”
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. [10]
In my view, this is precisely where America is today. With the ascendancy of postmodernism, which denies the kind of objective reality that Holmes and his followers assumed, made more toxic by a revolutionary Rousseauian notion of democracy in which there should be no limitations on the power of dominant groups and their leaders, we find ourselves in a much different (and dangerous) position.
It seems to me that one avenue out of the dangerous situation in which we find ourselves is a recovery of the notion that the Constitution protects the rights of every individual American, whether they are part of the majority or not. No one doubts that leaders, elected by the majority of the people, should have the freedom to enact the policies for which the public voted. However, in our system of government, that freedom is limited by our commitment to protecting the rights of minorities. This is an essential aspect of the Constitution that is currently at risk.
There is a biblical proverb that reads, “A deep respect for the Lord is the beginning of wisdom, and humility goes before honor” (Proverbs 15:33). Respect for the Lord, which biblical translators literally translate “fear of the Lord” is that respect that we give to a being more powerful than we are who we cannot necessarily control. The humility and respect for the Eternal brings is that respect we have because we understand that we are limited, finite, and do not always see things correctly or with a view toward the consequences that emerge. Therefore, we must be careful in what we say and do.
A commitment to a personalistic view of the protections that the constitution provides to people will only work if we understand that the reason this is so important is because the majority are very often wrong. Sometimes, as in the French and Russian revolutions, they are tragically wrong with long-term consequences for millions of people. Therefore, when implementing any public policy, we must be careful, and we must protect the rights of everyone, especially the minority and most vulnerable. This is the essential element for maintaining a free society where people have the freedom to pursue “life, liberty, and happiness.”
Copyright 2025, G. Christopher Scruggs, All Rights Reserved
[1] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York, NY: Broadside Books (Harper Collins), (2016).
[2] See “Republic” in Merriam-Webster Dictionary (Online) https://www.merriam-webster.com/dictionary/republican (downloaded July 7, 2025).
[3] Catherine Drinker Bowen: Miracle in Philadelphia: The Constitutional Convention May to September 1787 (New York, NY: Little Brown and Company, 1966). This is a very well-done popular history. For those with a more scholarly bent, there are various others with a more academic tone. I believe her work to be unmatched for interested laypersons.
[4] US Constitution, Preamble.
[5] Our Republican Constitution, 21.
[6] Id, at 23
[7] Id, at 34.
[8] Declaration of Independence (US 1776).
[9] Tom Bowden, “Justice Holmes and the Empty Constitution” The Objective Standard (Summer 2009),https://ari.aynrand.org/issues/government-and-business/individual-rights/justice-holmes-and-the-empty-constitution/ (downloaded July 8, 2025).
[10] Abrams v United States 1250 US 616 (1919), Holmes dissenting at 630.























