Barnett Gives Latest Legal Lecture as Raichle Series Returns
Updated: Jun 10, 2022
By Patrick Healy, Opinion Editor
More than two years after he was first scheduled to deliver it, Professor Randy E. Barnett gave his lecture “Is the U.S. a Democracy or a Republic (and Why Does it Matter)” to a crowd of scholars and students in Regis Room last Tuesday. The sponsoring Frank G. Raichle series, funded by the gift of the late lawyer and Canisius trustee, has hosted legal luminaries, including two chief justices of the U.S. Supreme Court, for over four decades.
While Barnett has never served in the judiciary, he has twice argued before the Supreme Court and, as Canisius professor and lecture organizer Robert Klump noted in his introduction, originalism’s recent rise to prominence — a concept espoused by multiple Supreme Court justices, including newly appointed justice Ketanji Brown Jackson — is in considerable part due to Barnett’s lengthy scholarship. The Harvard law graduate and longtime professor has published twelve books and more than one hundred articles.
Now a professor at Georgetown law and director of its Center for the Constitution, Barnett is famous among constitutional law scholars for his theory of originalism which, summarized, posits that the meaning of the Constitution should remain the same unless changed by amendment. Barnett’s “new originalism,” which focuses on the public meaning of words when the Constitution was written, is distinguished from other originalist interpretations which try to determine the intent of the Constitution’s framers.
Barnett’s lecture wasn’t just about originalism but about what an originalist interpretation of the Constitution means for the definition of democracy.
“In 1787, James Madison had a problem,” he began. The Articles of Confederation had other problems, but its central flaw was that it allowed for too much democracy. Nothing protected minorities from “the injustice of the laws of the states,” which were ruled by majorities in state legislatures.
Madison and the other Constitution writers intentionally created institutions, such as the Senate and Electoral College, which deny majority rule. To Barnett, the “tyranny of majority is the problem for which our republican constitution is the solution.”
Barnett criticized the popular — one might say majoritarian — distinction between a republic as merely a representative democracy and a true democracy as a direct democracy. He argued that the fundamental difference between a republic and a democracy is instead the “conception of legitimacy that underlies” them.
To proponents of democracy, “We the People” is a group and majority rule is inherently good; the Constitution should thus serve to enshrine the will of the majority. To proponents of republicanism, “We the People” are sovereign individuals and majority rule is inherently bad; the Constitution should protect minorities from the majority.
While Barnett doesn’t particularly defend the Electoral College, his “analysis rules out that we should change any structure simply because it opposes the will of the majority.” Whether institutions are democratic, Barnett says, has nothing to do with their merit: he asks those who would abolish the Electoral College or Senate, “How exactly will making things democratic make things better?”
Canisius political science professor Dr. A. K. Shauku asked whether the Supreme Court, one of the undemocratic institutions which Barnett has said is necessary to protect minority rights, protected minorities in the infamous decisions upholding segregation and Japanese internment.
Barnett, who has before criticized the Court’s Reconstruction-era decisions, readily acknowledged the failure of the Court to actually protect minority rights for much of its history. Nevertheless, in responding to another audience member’s question about the declining popularity of the Court, Barnett said, “The Supreme Court isn’t there to be popular, it’s there to do its job.” He also argued that “those who trash the legitimacy of the Court” often have political motivations.
A University at Buffalo law student challenged Barnett to reconcile his emphasis on a seemingly majoritarian “public meaning” of the Constitution with his argument that majoritarianism is unwise. Barnett explained that all “competent speakers” at the time of ratification, regardless of political ideology, would have agreed on the meaning of words and thus the meaning of the Constitution. The English language, he said, does not have majority and minority interpretations; the comparison between language and political ideology is faulty.
Before his lecture in Regis on Tuesday, Barnett had spoken to the Buffalo Federalist Society, visited Niagara Falls, mingled with Canisius students and faculty over dinner and even found time for an interview with this scribe. Readers are encouraged to visit page five for a recap of the conversation.