Randy Barnett, Popular Constitutionalism, and “you may be looking at a political movement in the face.”

March 27th, 2012

At the 2011 ACS National Convention, Randy Barnett made these remarks about the nature of the challenge to the health care law–Fast forward to 1:31:30) (this is my best effort to transcribe it, I know I missed some stuff):

But I do want to get back to the politics of this for a minute. I understand you had a very lively panel on original meaning [yesterday]  . . . But i take it that the valence in this room is kind of not all that sympathetic with original meaning. Original meaning says the meaning of the Constitution must remain the same until it is properly changed. The opposite of originalism, or different position, is that the meaning of the constitution evolves over time to respond to changing conditions or to respond to political initiatives, or what my friend Jack Balkin calls social movements. That is what the alternative to original meaning is, the evolution of constitutional meaning according to social movements. Well, look if you guys believe in that, you may be looking at a political movement in the face.

Political movements sometimes go in your directions, sometimes political movements don’t. If political movements don’t go in your direction, it is difficult to rush in with  copy of the Constitution . . .  and say no, no, no, it is the Constitution that stops you from doing this. Not if at the same time you think that political movements cause the Constitution to change through political appointments, and confirmed by politically appointed Senate. That is just the way business is done.

That’s the way business is done. Not only should you not be surprised. You should also not complain. Except, if that day were to ever come, you were just on the losing end of a democratic process, then you have judicial restraint to fall back on. You have judicial restraint to fall back on to protect the political process you lost.

I want to suggest that maybe, just maybe the original constitution might have something to offer you if you are ever on the losing end of a political movement.


In many respects, Barnett–who is the intellectual godfather of the challenge (and featured in this glowing NYT piece)–and his arguments were right out of the liberal playbook of popular constitutionalism and social movements.

And if the Court strikes down the mandate, the supporters of PPACA will be looking at their own argument smack-dab in the face.

I remember way back in October of 2009 when I attended the ACS Constitution in 2020 Conference (at the very beginning of my blog-wow my posts were quite primitive back then). Oh the mood was different. President Obama had just been elected with a huge margin. The Democrats had both houses. The panelists were talking about social movements to advance many progressive causes. The sky was the limit. Boy how things have changed in about three years.