Randy Barnett may have a point. We may not want our national legislature to require citizens to obtain health care. We also may not want our federal representatives to regulate commerce, raise revenues from the states, negotiate treaties, erect (or abolish) tariffs, or declare war.
There is, however, a cruel irony to Professor Barnett’s argument. Barnett and his fellow libertarians count themselves federalists. Yes, I said “federalists.” But, you object, weren’t these the folks who, back in 1787 believed the Articles of Federation so woefully inadequate that they convened a second constitutional convention, where, in essence, they took away all of the independent rights granted to the states in 1783? And weren’t these the same folks who locked the anti-federalists out of their convention so that they could found a more perfect union? And does not their donning the name “federalist” therefore constitute the height of Orwellian deception (perhaps even self-deception)?
Well, yes. But, in their defense, these so-called “federalists” have never displayed too much interest in what the framers of the constitution wanted or didn’t want, what they intended or didn’t intend. What they want is the complete destruction, the annihilation, the abolition of the federal government. And about this aim they have been refreshingly straightforward.
Who cares what the Constitution says? “We want smaller government.”
Fair enough. But, in that case, you will not find much support from a document composed, from top to bottom, by your constitutional opponents, the real federalists. Which is why, should the Supreme Court grant your petition, they will have to overturn the very heart of the document from which they claim to be taking their guidance, the Constitution itself.
Not to worry. This particular Court has shown itself time and again not to place too much weight on this old, antiquated document.
The point is, the real Constitution (as opposed to the fictitious one Professor Barnett wants) was composed to protect the financial interests of its framers and their friends. Between 1783 and 1787, these real federalists found their locally minted notes deprived of all their value, their foreign and domestic credit well-neigh useless, their deeds and titles suspect or (thanks to roving vigilantes) destroyed, and their ability to raise a militia (much less pay for the same), so that they might combat said vigilantes, completely bankrupt. They needed a secure currency. They needed a dependable, professional, militia, independent from the states. They needed the power to tax and conclude treaties, without fear of interference from the states. And they needed a judiciary that stood above the state judiciaries and legislatures. And that is what these real federalists got.
And, in return, in order to buy approval from the states, the Congress gave them a Bill of Rights.
This every school boy and girl knows, or used to know before these ANTI-federalists gained control over our educational system.
The irony is not that these ANTI-federalists now call themselves federalists. The irony is that they want to rewrite the Constitution, originally written to protect private financial interests, so that it fits more nearly the new, less politically responsive, more flexible and dynamic, economic realities of neoliberalism. And so they imagine that by freeing individuals from the protections of the federal government, they are therein delivering the public over to the true realm of individual liberty.
This is their more perfect union. Alexander Hamilton shakes hands with Thomas Paine. The federalist and the anti-federalist embrace. They kiss. And so is ushered in Francis Fukuyama’s long-awaited End of History.
The framers of the real US Constitution, the real Federalists, were not so naive. Strong federal institutions and republican values were the only adequate response to the anarchy of private self-interest and democratic values.
As we learned in Citizens United, the elimination of federal protections and restraints has not expanded the realm of individual freedom. It has simply empowered the already bloated political power exercised by unrestrained corporate wealth. Here as elsewhere the lone, private citizen is the victim.
And so here we are again, bringing our petitions to the most anti-federalist arm of government in the land, the US Supreme Court, the enemy of all that 1787 once championed. Outside the gate once again is Thomas Paine, represented here by Randy Barnett. Will the Supreme Court let him in? Will they let him tweak this anachronistic document, just a little bit? Will they bend, if ever so slightly away from 1787 and toward 1861 (when the Constitution of the Confederate States was passed)?
All indications are that this Court will side with Tom Paine, with 1861, and with the anti-federalists. Because Randy Barnett has a point.