barnett, randy e sq

ref yikes Lochner reboot!<a href="https://thinkprogress.org/trumps-most-radical-nominee-since-neil-gorsuch-02d1bcabc8e0/">https://thinkprogress.org/trumps-most-radical-nominee-since-neil-gorsuch-02d1bcabc8e0/</a>Justice Don Willett is charming.Best known outside legal circles for his Twitter feed, <a href="https://twitter.com/JusticeWillett?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">@JusticeWillett</a>, the Texas Supreme Court justice — and now a Trump nominee to a federal appeals court — tweets largely apolitical commentary about Calvin and Hobbes, his children, and Oxford commas. Many of his tweets are genuinely hilarious, and Willett is equally disarming in person. When I met him a couple years ago at a gathering of the conservative Federalist Society, he was genial, thoughtful, and surprisingly familiar with my work. The man knows how to endear himself to people.This would all be well and good, if not for one other factor. This charming, intelligent, knowledgeable man also wants to dismantle much of the last 80 years of American law.In a <a href="http://www.txcourts.gov/media/1008502/120657c1.pdf" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">2015 opinion laden</a> with libertarian tropes and selective history, Willett called upon his court to revive a defunct doctrine once used to <a href="https://thinkprogress.org/the-most-chilling-political-appointment-that-youve-probably-never-heard-of-d2b083a153ab/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">strike down minimum wage laws and gut workers’ right to organize</a>. It’s a doctrine that that three of the Supreme Court of the United States’ most conservative members recently <a href="https://thinkprogress.org/chief-justice-roberts-marriage-equality-dissent-has-a-hidden-message-for-conservatives-b4fcbc44ebc8/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">called out as “discredited” and “unprincipled.”</a><h3 style="background-color: rgb(255, 255, 255); box-sizing: inherit; line-height: 2.75rem; margin: 0px;">The “Lochner Era'</h3><h3 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px;">There are a handful of past Supreme Court decisions that belong to the constitutional “<a href="https://thinkprogress.org/george-will-is-the-canary-in-american-democracys-coal-mine-5ecef1264ce7/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">anti-canon</a>” — the pro-slavery decision in Dred Scott, the Court’s pro-segregation decision in Plessy v. Ferguson, a 1918 decision <a href="https://www.law.cornell.edu/supremecourt/text/247/251" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">striking down child labor laws</a>. These are the sort of cases that law students are taught never to cite favorably in a brief. When they do come up in litigation, it is typically because one party accuses the other of make an argument reminiscent of an anti-canonical case.</h3>Until recently, <a href="https://www.law.cornell.edu/supremecourt/text/198/45" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Lochner v. New York </a>— which struck down a New York law providing that bakery workers could not work more than 60 hours a week —  was viewed as part of the anti-canon by all but a fringe group of lawyers with little influence. Even Robert Bork, the Reagan Supreme Court nominee denied a place on the Court due to fears he was too rigidly conservative, labeled Lochner an “<a href="https://thinkprogress.org/even-the-late-robert-bork-thought-the-tea-party-was-out-of-its-mind-b8bb8d5e7769/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">abomination</a>” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”Lochner provided the basis for a host of decisions preventing progressive regulation of the workplace. Indeed, the four decade period in the late nineteenth and early twentieth century, when the Supreme Court effectively read a laissez-faire orthodoxy into several provisions of the Constitution, is known as the “Lochner Era” among legal scholars due to this case’s defining role in shaping the decisions of the day.<div class="related-contentwrapper" style="background-color: rgb(255, 255, 255); box-sizing: inherit; padding: 0px; margin: 0px 0px 2rem;"><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><div class="related-contentimage" style="box-sizing: inherit; align-self: flex-start; margin: 0px 1rem 0px 0px; width: 171px;"><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;" /><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border: none; display: flex;"><figure class="postfigure postfigure--format-thumbnail" style="box-sizing: inherit; margin: 0px; padding: 0px; max-width: 100%;"><div class="postthumbnail" style="box-sizing: inherit; overflow: hidden; position: relative;"><picture id="picture-277083" class="wp-image-277083 size-full " data-id="277083" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=800&crop=0%2C0px%2C100%2C580px&ssl=1" media="(min-width: 1920px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=800&crop=0%2C0px%2C100%2C580px&ssl=1" media="(min-width: 1024px) and (max-width: 1920px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=800&crop=0%2C0px%2C100%2C580px&ssl=1" media="(min-width: 768px) and (max-width: 1024px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=800&crop=0%2C0px%2C100%2C580px&ssl=1" media="(min-width: 512px) and (max-width: 1024px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=768&crop=0%2C0px%2C100%2C557px&ssl=1" media="(min-width: 512px) and (max-width: 768px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=512&crop=0%2C0px%2C100%2C371px&ssl=1" media="(max-width: 512px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=768&crop=0%2C0px%2C100%2C557px&ssl=1" media="(max-width: 768px)" style="box-sizing: inherit;"><source srcset="https://i0.wp.com/thinkprogress.org/wp-content/uploads/2013/11/0Y9uf_d-2hUOU-NYU.jpg?w=800&crop=0%2C0px%2C100%2C580px&ssl=1" media="all" style="box-sizing: inherit;">
</source></source></source></source></source></source></source></source></picture></div></figure></a></div><div class="related-contentbody" style="box-sizing: inherit; width: 513px;"><h3 class="related-contenttitle" style="box-sizing: inherit; line-height: 2rem; margin: 0px;">How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America]</h3></div></div>One decision applying Lochner held that the law may not to used to compel “any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another” — a rule that, had it still been in effect in the 1960s, would have required courts to <a href="http://www.georgemasonlawreview.org/wp-content/uploads/23_3_Millhiser.pdf" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">strike down the Civil Rights Act of 1964’s</a> bans on employment discrimination and whites-only lunch counters.In recent years, however, a group of mostly libertarian legal scholars have sought to pull Lochner out of the anti-canon (one of the seminal texts of this movement is named “<a href="https://networks.h-net.org/node/16794/reviews/17301/kens-bernstein-rehabilitating-lochner-defending-individual-rights" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Rehabilitating Lochner</a>“). Combining a mixture of true facts of dubious relevance, ad hominem attacks on Lochner‘s opponents, and doubtful historiography, these scholars seek to restore Lochner to the legitimate pantheon of legal decisions — and even to revive its doctrines.Which brings us to <a href="http://www.txcourts.gov/media/1008502/120657c1.pdf" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Justice Willett’s opinion</a> in Patel v. Texas Department of Licensing and Regulation. Willett’s concurring opinion in Patel is deeply steeped in the scholarship seeking to revive cases like Lochner. It quotes the Pope, Fredrick Douglass, Shakespeare, James Madison, Adam Smith, and Davy Crockett. And it buys wholeheartedly into libertarian ideas that would dismantle much of American government.<h3 style="background-color: rgb(255, 255, 255); box-sizing: inherit; line-height: 2.75rem; margin: 0px;">“Don’t Thread on Me”</h3>Patel is a tribute to the increasing sophistication of lawyers fighting to restore cases like Lochner. It involves both an exceptionally dumb law and a <a href="http://ij.org/case/patel-v-tx-department-of-licensing-and-regulation/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">bevy of sympathetic plaintiffs</a>. It’s the sort of case where you very much want the plaintiffs, who were represented by a law firm that specializes in Trojan Horse lawsuits seeking to <a href="https://thinkprogress.org/the-most-chilling-political-appointment-that-youve-probably-never-heard-of-d2b083a153ab/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">launder radical legal doctrines through cases involving real injustice</a>, to prevail even if they don’t have any good legal arguments. It’s the sort of case that tugs at the heart, and that shuts down the part of the brain that makes judges think through the implications of what they are signing onto.Texas law required eyebrow threaders — a practice where stray hairs are removed by cotton or polyester thread — to <a href="http://www.txcourts.gov/media/1008501/120657.pdf" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">undergo a 750-hour training course</a> that included a great deal of material unrelated to threading. It was an extraordinarily dumb law. Any sensible legislator would vote to repeal it.But the fact that a law is ill-advised does not make it unconstitutional. And it does not mean judges should revive long-discredited doctrines in order to take it out.The issue with Lochner was that it read dubious “rights,” such as a right to enter into labor contracts that called for very long hours and very low pay, into the Constitution itself. Chastened by this experience, the justices who rejected Lochner many decades ago decided that they <a href="http://www.georgemasonlawreview.org/wp-content/uploads/23_3_Millhiser.pdf" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">should not be trusted with such a freewheeling power</a> to invent new doctrines with hardly any connection to the text of the Constitution. Thus, the Court held that nearly all laws should be <a href="https://scholar.google.com/scholar_case?case=1808251577400430843&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r%5B4%5D" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">treated as presumptively constitutional</a>, with exceptions for laws that violate an explicit provision of the Constitution, that single out certain minorities for inferior treatment, or that harm the democratic process itself.This presumption of constitutionality ushered in a golden age of American democracy, where courts got out of the business of making economic policy and left these matters to leaders like Franklin Roosevelt or Lyndon Johnson. It also coincided with the massive expansion of American wealth and power that took place in the later two-thirds of the twentieth century.Yet, for libertarian scholars, this golden age was an age of perdition, and the original sin was the presumption of constitutionality intended to ward of decisions like Lochner.The leading scholar arguing this viewpoint is probably Randy Barnett, a Georgetown law professor who believes that most of the twentieth century is unconstitutional. Barnett has <a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">explicitly praised the Lochner decision.</a> He’s even <a href="https://www.wsj.com/articles/SB124044199838345461" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">claimed that Social Security is unconstitutional</a>.Barnett’s core claim is that the presumption of constitutionality should be replaced by a presumption of unconstitutionality — courts should presume that most laws are unconstitutional, in Barnett’s view. Yet, being a skilled advocate, Barnett gives his presumption a much more appealing name. He calls it the “<a href="https://press.princeton.edu/titles/10118.html" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">presumption of liberty</a>.”Which brings us to this excerpt from Justice Willett’s Patel opinion, where the judge rejects the post-Lochner consensus and restates Barnett’s philosophy:<blockquote style="background-color: rgb(255, 255, 255); box-sizing: inherit; clear: both; margin: 0px 1.5625rem; padding: 0px; position: relative; border-left: 3px solid rgb(87, 87, 206);">In today’s age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America’s defining value. But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy). . . . This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint?</blockquote>Nor is this passage Willett’s only shoutout to the writers seeking to revive cases like Lochner. Willett also explicitly rejects the argument, made by one of his colleagues in a dissenting opinion, that Lochnerism is something to be feared. “A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought,” he writes.Willett notes that Justice Oliver Wendell Holmes, the justice who wrote the strongest dissent in the original Lochner case, also penned an odious opinion in <a href="https://www.law.cornell.edu/supremecourt/text/274/200" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Buck v. Bell</a> holding that the state can sterilize individuals against their will. It’s an ad hominem argument that pro-Lochner scholars often repeat — if Holmes was so wrong in Buck, how could his opinion in Lochner be right! — but it’s also not a particularly strong argument. Buck was an 8-1 decision, joined by many of the Court’s staunchest defenders of Lochner. The biggest lesson to be drawn from Buck is that the Supreme Court as a whole was full of terrible people in 1927.Willett also favorably cites fringe libertarian thinkers such as Timothy Sandefur, a litigator for the conservative Goldwater Institute who has claimed that courts are required to follow decisions like Lochner <a href="https://thinkprogress.org/if-you-want-to-understand-whats-happened-to-the-supreme-court-you-need-to-listen-to-rand-paul-d2f245be1706/" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">even if the Constitution is amended to explicitly reject this view</a>.Willett’s opinion, in other words, is the picture of a man eager to roll back nearly a century of American law. It is the picture of a judge who believes he has far to little power — and that the people who are actually elected to make laws have too much ability to act. And it is the picture of a judge eager to seize more power and use it to implement doctrines that took America to a very dark place the first time around.<h3 style="background-color: rgb(255, 255, 255); box-sizing: inherit; line-height: 2.75rem; margin: 0px;">The Fox News of judges</h3>If all of this discussion of legal scholarship and books written by largely unknown lawyers sounds obscure and arcane, that’s because it is. Most lawyers — indeed, most legal scholars and judges — are not familiar with neo-Lochnerite scholarship, much less the most cutting edge rebuttals to its claims. People like Barnett and Sandefur are influential in Federalist Society circles, but few people outside of the conservative legal community know who they are.But that does not mean that they can be safely ignored. Much as conservative media outlets like Fox News and Breitbart have created an alternative universe of facts for their consumers, libertarian scholars have constructed an alternative history of the Constitution — some of it based in reality, much of it based in half-truths or outright misrepresentations.If mainstream lawyers and judges are not familiar with these alternative facts, they will be poorly equipped to rebut them when judges like Willett write them into opinions like Patel. The age of the anti-canon, when judges could safely assume that decisions like Lochner were dead, buried, and incapable of resurrection, is coming to a close.Justice Willett is many things. He is radical and deeply conservative. But he is also intelligent, charismatic, and skilled in the arts of persuasion. And he will probably soon be a federal appellate judge. His views can no longer be safely ignored.ref context<div></div><div><a href="https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/">https://thinkprogress.org/how-conservatives-abandoned-judicial-restraint-took-over-the-courts-and-radically-transformed-3da3115c81c0/</a></div><div>
</div><div>WASHINGTON, D.C. — Child labor laws hurt children. Social Security is an anchor dragging down economic growth, and Medicare should be abolished.Those are the lessons I learn in a room full of conservative lawyers snacking on lamb sausage and Gorgonzola fondue — a room that’s absolutely packed with top practitioners, right-wing intellectuals and judges. I walked into the room alongside a Texas Supreme Court justice. When I reach to ladle some of the fondue onto a plate full of croutons, my hand accidentally brushes the arm of a federal court of appeals judge.My sparring partner during much of this closing reception for the <a href="http://www.fed-soc.org/events/detail/2013-national-lawyers-convention" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Federalist Society’s annual lawyer’s convention</a>, is <a href="http://mason.gmu.edu/_isomin/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Ilya Somin</a>, who is a law professor and writer for the <a href="http://www.volokh.com/author/ilya/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Volokh Conspiracy</a>, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country. President George W. Bush <a href="http://thinkprogress.org/justice/2012/11/16/1201921/federalist-society-women/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">raided the Federalist Society’s membership</a> to fill the courts with judges who shared his conservative outlook. The convention’s program <a href="http://www.fed-soc.org/events/detail/2013-national-lawyers-convention" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">boasts 15 federal appeals court judges</a> who schlepped to the Mayflower Hotel in Washington, D.C. just to moderate a panel. The annual black tie dinner features Justice Clarence Thomas — another person who <a href="http://thinkprogress.org/justice/2011/09/19/321978/justice-thomas-who-thinks-federal-child-labor-laws-are-unconstitutional-complains-about-judicial-activism/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">believes that federal child labor laws are unconstitutional</a> — as the evening’s main event. And <a href="http://www.fed-soc.org/events/detail/2013-national-lawyers-convention" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Justices Antonin Scalia and Samuel Alito are in the audience</a> despite the fact that they don’t even have a speaking slot at the convention this year. The judges and justices gathered in Washington are not there because they crave the spotlight or because they are doing someone a favor. They are there because the many men and somewhat fewer women who make up the Federalist Society are their people.Everyone likes to spend time with friends.Indeed, for many attendees, their annual pilgrimage to Washington for the Federalist Society convention is an opportunity to reconnect with people they’ve known since the Society was formed three decades ago. Some of the most eminent members of the Society were present close to its founding. Justice Scalia was one of the <a href="http://en.wikipedia.org/wiki/Antonin_Scalia" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Federalist Society’s first faculty advisers</a> when he was a professor at the University of Chicago.<blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">The single most important fact to understand about the Federalist Society — indeed, about the conservative legal movement in general — is that it once viewed the Supreme Court as its greatest enemy, but the Roberts Court is now the best friend it has in the American government.</blockquote>Throughout this thirty year history they’ve experienced the highs of the Reagan Revolution and the lows of slowly realizing that George W. Bush was a failed president. They’ve stood together against Roe v. Wade and they’ve stood just as resolutely against Obamacare. But, most importantly, they’ve seen the judiciary reshaped in their image. The single most important fact to understand about the Federalist Society — indeed, about the conservative legal movement in general — is that it once viewed the Supreme Court as its greatest enemy, but the Roberts Court is now the best friend it has in the American governmentCases like Roe are part of the past. Citizens United and the Shelby County case, which gutted the Voting Rights Act, are the wave of the future. After decades of advocating for “judicial restraint,” the lawyers gathered at the Mayflower Hotel have now experienced the ecstasy of watching five men write conservative values directly into the Constitution. And they want to feel that sensation again. And again. And again.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Moderate Rand Paul</h4>This transformation from a group of lawyers patiently tying their fortunes to Republican electoral victories into activists craving a victory by any means is apparent from the convention’s speaker lineup. In 2007, the Federalist Society demonstrated its clout by <a href="http://www.fed-soc.org/publications/page/2007-national-lawyers-convention-shining-city-upon-a-hill-american-exceptionalism" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">hosting the sitting President George W. Bush</a>. One year earlier the convention <a href="http://www.fed-soc.org/publications/page/2006-national-lawyers-convention-limited-government" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">featured Vice President Dick Cheney</a>. Both speeches demonstrated the Federalists’ positioning as an organization well within the GOP’s mainstream. Here was an organization so widely respected by Republicans that it could draw the party’s top two leaders.This year, however, the only federal lawmakers featured at the convention were <a href="http://www.fed-soc.org/events/detail/2013-national-lawyers-convention" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Sens. Mike Lee (R-UT) and Ted Cruz (R-TX)</a> — and this is the second year in a row when Lee and Cruz were the <a href="http://www.fed-soc.org/events/detail/2012-national-lawyers-convention" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">only Members of Congress on the convention’s program</a>. At a time when mainline Republicans are very much in a struggle with Tea Party insurgents for control of the GOP, the Federalist Society casts its lot with the <a href="http://thinkprogress.org/politics/2013/09/26/2688921/republican-infighting-government-shutdown/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">two men most responsible for shutting down the government</a> for half of October.When I share this observation with one of the conference attendees who sat down next to me at the convention’s Saturday luncheon, he agrees with me that Cruz and Lee are divisive figures and even suggests that many of the other people in the room are uneasy about these two senators. Though, when I press him to explain, he quickly confirms that any disagreement with Cruz and Lee is tactical, not substantive. “We like to win,” he tells me, and the two men behind a failed effort to defund Obamacare did not deliver that all-important victory.He also refers me to a recent New York Times piece <a href="http://www.nytimes.com/2013/11/02/us/politics/republican-rivalry-simmers-as-paths-and-styles-diverge.html?r=0" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">contrasting the uncompromising Cruz with Sen. Rand Paul (R-KY)</a>, a Tea Party senator who’s making friends with establishment figures and working to reelect Senate Minority Leader Mitch McConnell (R-KY). My dining companion does not hesitate to answer “yes,” when I ask him if he prefers Paul’s approach to Cruz’s.<blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">The Federalist Society convention may be one of the few places on the planet where Rand Paul is praised for a moderate and restrained approach to politics.</blockquote>The Federalist Society convention may be one of the few places on the planet where Rand Paul is praised for a moderate and restrained approach to politics. As a senate candidate, Paul came out against the federal ban on whites-only lunch counters — claiming that permitting private businesses to discriminate on the basis of race is the “<a href="http://thinkprogress.org/politics/2010/05/19/98217/paul-civil-rights/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">hard part about believing in freedom</a>.” More recently, Paul praised an infamous Supreme Court decision named Lochner v. New York which <a href="http://thinkprogress.org/justice/2013/03/07/1684111/rand-paul-all-laws-protecting-workers-are-constitutionally-suspect/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">gave employers a sweeping constitutional right to exploit their workers</a>.Lochner ensured that the courts would treat any law benefiting workers with great skepticism. It not only struck down a New York law preventing bakeries from overworking their employees, it formed the basis of later decisions <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0261_0525_ZO.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">depriving workers of a minimum wage</a> and of the <a href="http://scholar.google.com/scholar_case?case=3072585965506695672&hl=en&as_sdt=6,47&as_vis=1" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">right to organize</a>. Lochner is frequently taught to law students as an example of how judges should never, ever behave. Until recently, Lochner’s position in the constitutional anti-canon was unquestioned even among the hardline conservatives who form the backbone of the Federalist Society. The late Robert Bork, a failed Supreme Court nominee who is still spoken off as a fallen martyr in Federalist Society circles, called Lochner an “abomination” that “<a href="http://thinkprogress.org/justice/2012/12/19/1358911/even-the-late-robert-bork-thought-the-tea-party-was-out-of-its-mind/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">lives in the law as the symbol, indeed the quintessence of judicial usurpation of power</a>.”<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">Damn, It Feels Good To Be A Gangsta</h4>At the Mayflower Hotel, however, many of the guests are downright giddy at the notion of judicial usurpation of power. The Saturday luncheon’s program is a debate between federal appellate Judge J. Harvie Wilkinson and Georgetown law Professor Randy Barnett, with Barnett arguing in favor of the position “Resolved: Courts are Too Deferential to the Legislature.”As an objective matter, Barnett is not a very successful Supreme Court advocate. He is best known for failing to convince the Court to shrink the federal government’s authority when he <a href="http://www.law.cornell.edu/supct/html/03-1454.ZO.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">argued a case known as Gonzales v. Raich</a>, and then for his work as one of the lead advocates behind the failed effort to convince the justices to repeal Obamacare. Yet his fellow Federalist Society members treat him as if he’s a conquering hero. In the convention’s hallways, he’s surrounded by leading practitioners, academics and even judges eager to share his wisdom. At one point, a young woman approaches him simply to say that she wants to “thank him for his eloquence.” If the Federalist Society played walk up music when its speakers took the stage, Barnett’s theme song would be “<a href="http://www.youtube.com/watch?v=rL9ihXiFAko" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Damn, It Feels Good To Be A Gangsta</a>”.Though most of Barnett’s arguments rest on vague rhetoric such as “judges must follow the law,” he does offer one specific example of what he thinks judges should be doing that they currently are not. In a <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=348&invol=483" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">unanimous 1955 decision called Williamson v. Lee Optical</a>, the Supreme Court upheld an Oklahoma law providing that no one could fit lenses into an eyeglass frame unless they did so “upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.” Thus, just as pharmacists cannot simply hand out prescription drugs without authorization from a physician, the Oklahoma law applied a similar rule to merchants who grind lenses for eyeglasses.More broadly, Lee Optical stands for the proposition that <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=348&invol=483" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">elected officials who are accountable to the voters</a> — and not unelected judges with life tenure — should decide how businesses are regulated in the United States. As Justice William Douglas explained in the Court’s opinion, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Douglas understood that, when a lawmaker supports a law which is unwise or unworkable, the voters can correct the situation by voting that official out of office. But if a judge decides to substitute their own views for those of the electorate, the people are left without recourse.Barnett looks at Lee Optical, however, and sees something very sinister behind the Supreme Court’s deference to democratically elected officials. The Oklahoma eyeglass law, he tells the Federalist Society, had nothing to do with protecting the health of people who wear glasses. Instead, he claims, state lawmakers enacted this law because the powerful eye doctor lobby prevailed upon the Oklahoma legislature to do so. It is this kind of “rent seeking legislation,” in Barnett’s mind, that the courts have a duty to strike down.Lest there be any doubt, Barnett is concerned with far more than the price of eyeglasses in Oklahoma. In a 2012 speech at the libertarian George Mason School of Law,Barnett <a href="http://www.georgemasonlawreview.org/doc/19-4-BARNETT.pdf" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">laid out his theory of Lee Optical in much greater detail</a>, and he openly admits that he would go much further than simply overruling this one case — “I would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner.” Barnett is offering the promise of cheaper eyeglasses, but what he’s really after is a constitutional right to exploit workers.<blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">Medicare taxes the healthy and the young to pay the salaries of doctors. Public schooling taxes the childless to pay members of teachers unions. Laws banning murder force professional hitmen to give up their livelihood entirely!</blockquote>Barnett’s narrative about Lee Optical taps into most Americans’ legitimate belief that lawmakers should not be doling out favors to interest groups. Yet it also ignores the far more compelling reason why courts do not second-guess economic regulation. Virtually every single law benefits some interest groups at the expense of others. Medicare taxes the healthy and the young to pay the salaries of doctors. Public schooling taxes the childless to pay members of teachers unions. Laws banning murder force professional hitmen to give up their livelihood entirely! If the mere fact that a law picks economic winners and losers — or even the fact that it came into being because a particular group lobbied for it — were a strike against that law’s constitutionality, then nearly all laws are suspect.The reason why the courts abandoned the kind of inquiry Barnett proposes is that there is nothing in the Constitution that instructs judges on just how divorced a law’s effects must be from its ostensible purpose before the courts are empowered to strike the law down. And when judges divorce their own decisions from the Constitution’s text, there is nothing preventing them from imposing their views on the American people.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Dying Breed</h4>The task of defending this traditional argument for a limited judicial role falls to Judge Wilkinson, who offers some populist rhetoric of his own to explain why judges should not overstep their bounds — how would you feel, Wilkinson asks, “if one profession was calling all the shots for you?” Well, maybe the rest of the country doesn’t want to have all of the shots called by lifetime-appointed lawyers!But it’s soon clear that, if the Federalist Society played walk up music for Judge Wilkinson, his theme song would be “<a href="http://www.youtube.com/watch?v=mHiVid_fpGg" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Yesterday’s News</a>.” Wilkinson was <a href="http://thinkprogress.org/justice/2012/03/13/442497/bush-scotus-finalist-striking-down-health-reform-is-a-prescription-for-economic-chaos/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">once one of President Bush’s five finalists for the Supreme Court seat</a> that ultimately went to Chief Justice Roberts, but he harbors no illusions that the Federalist Society’s winds still blow in his direction. Wilkinson demonstrates his commitment to judicial restraint by labeling Roberts decision upholding the Affordable Care Act a “courageous and correct” decision, but he pauses before he does so and invites the audience to boo him if they choose. Though a few isolated claps could be heard at the back of the room, the rest of the conference loudly accepts his invitation.Indeed, even the moderator of this debate, <a href="http://thinkprogress.org/justice/2012/04/03/457727/republican-fifth-circuit-pitches-a-partisan-tantrum-after-president-obama-speaks-out-about-supreme-court/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">arch-conservative</a> Fifth Circuit Judge Jerry Smith, opens the discussion by suggesting that he prefers Barnett’s warmed-over Lochnerism to Wilkinson’s deference to democracy. Smith introduces Wilkinson by telling a story about when the two men met many years before — “I was a right-wing activist,” Smith jokes, and Wilkinson “was an establishment Republican.”There are still a handful of judges like Wilkinson left — Republicans who still believe that Democratic officials should be free to govern if the American people choose to elect Democrats. Judge Jeffrey Sutton, who led one of the Federalist Society’s practice groups before his appointment to the bench, <a href="http://thinkprogress.org/justice/2011/06/29/257527/george-w-bush-appointed-states-rights-crusader-rejects-lawsuit-challenging-affordable-care-act/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">broke with his fellow Federalists and rejected an attack on the Affordable Care Act</a>. Several months later Judge Laurence Silberman, a conservative who once received the Presidential Medal of Freedom from President George W. Bush, wrote an opinion holding that the legal attacks on health reform have <a href="http://www.americanprogress.org/issues/civil-liberties/news/2012/03/07/11260/not-even-close/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">no basis “in either the text of the Constitution or Supreme Court precedent.”</a> But these two men were outliers in a judiciary where Republican judges rarely hesitated to deal a blow to Obamacare.Both Sutton and Silberman were also noticeably absent from the Federalist Society’s convention.Similarly, in 2004 the California Supreme Court included six Republicans and only one Democrat. Yet <a href="http://thinkprogress.org/justice/2012/05/21/487913/eight-years-ago-even-republican-judges-rejected-notre-dames-attack-on-contraceptive-access/" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">all but one of the court’s Republicans rejected a challenge to a California birth control law</a> that’s strikingly similar to an Obama Administration rule that’s now under attack in the federal courts. The sole dissenter in that case was Justice Janice Rogers Brown, a severely conservative judge who once <a href="http://thinkprogress.org/justice/2013/11/01/2876381/need-know-severely-conservative-judge-just-ruled-birth-control/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">labeled the New Deal a “socialist revolution” and likened Social Security to cannibalism</a>.Nine years after Brown was a lonely voice crying out against California’s birth control law, her views on birth control are now shared by the overwhelming majority of Republican federal judges who’ve weighed in on the Obama Administration’s rules. One of those judges, thanks to a federal judicial appointment from President Bush, <a href="http://thinkprogress.org/justice/2013/11/01/2876381/need-know-severely-conservative-judge-just-ruled-birth-control/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">was Janice Rogers Brown</a>.Judges like Wilkinson, in other words, could soon become an endangered species. While few judges admit, <a href="http://thinkprogress.org/justice/2012/04/16/464731/two-federal-judges-suggest-all-labor-business-or-wall-street-regulation-is-unconstitutional/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">as Brown does</a>, that they would revive Lochner and fully embrace Randy Barnett’s vision, Republicans simply aren’t much interested in judicial restraint during the age of Obama.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Failure of Richard Nixon</h4>This embrace of Barnett over Wilkinson is a very recent development. In his 2007 address to the Federalist Society, President Bush labeled judicial activism a direct assault on the will of the people — “some judges give in to temptation and make law instead of interpreting. <a href="http://georgewbush-whitehouse.archives.gov/news/releases/2007/11/20071115-14.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Such judicial lawlessness is a threat to our democracy, and it needs to stop</a>.” At a 2006 debate with Justice Stephen Breyer co-sponsored by the Federalist Society, Justice Scalia warned that it is “<a href="http://www.youtube.com/watch?v=4OyRHiFQp4o" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">very undemocratic</a>” for judges to read expansive new rights into the Constitution. In a 2006 address, then-Secretary of Homeland Security Michael Chertoff credited the Federalist Society for <a href="http://fedsoc.server326.com/audio/2006lawcon/ChertoffAddress-11-17-06.mp3" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">helping catapult the concept of judicial modesty into the legal mainstream</a> — “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”The fact that the Society was once a bastion of judicial restraint is easy to understand in light of the landscape at the time of its founding. The year 1982 was actually a rare moment of weakness for conservative lawyers. For most of the nation’s history, America’s judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes. The Supreme Court <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0156_0001_ZS.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">gave its blessing to a nationwide sugar monopoly</a>. It <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0157_0429_ZS.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">declared the income tax unconstitutional</a>. And it gave every federal judge in the country <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0158_0564_ZS.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">sweeping power to act as union busters</a>. One year later, it <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0163_0537_ZS.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">embraced the noxious doctrine of separate but equal</a>.In the coming decades, the justices <a href="http://thinkprogress.org/politics/2011/01/14/139049/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">held child labor laws unconstitutional</a>. They <a href="http://thinkprogress.org/justice/2013/03/07/1684111/rand-paul-all-laws-protecting-workers-are-constitutionally-suspect/feed/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">gave employers sweeping rights to exploit their workers</a>. And they spent President Franklin Roosevelt’s first term aggressively trying to frustrate the New Deal. As one of the era’s most influential legal scholars explained, “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — <a href="http://books.google.com/books?id=MuM9AAAAIAAJ&pg=PR7&lpg=PR7&dq=%22the+conservative+classes+stand+in+constant+fear+of+the+advent+of+an+absolutism+more+tyrannical+and+more+unreasoning+than+any+before+experienced+by+man%22&source=bl&ots=JE33oYn8DM&sig=3z7awXGL0lt6KgXxR4eiIIyvlzw&hl=en&sa=X&ei=HFyJUtZKiauwBJmugLgK&ved=0CD8Q6AEwBw#v=onepage&q=%22the%20conservative%20classes%20stand%20in%20constant%20fear%20of%20the%20advent%20of%20an%20absolutism%20more%20tyrannical%20and%20more%20unreasoning%20than%20any%20before%20experienced%20by%20man%22&f=false" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">the absolutism of a democratic majority</a>.” And the United States Supreme Court was more than happy to protect these “conservative classes” from democracy.Though Roosevelt eventually filled the Court with justices less hostile to self-governance, there was little unifying principle animating his nominees beyond a willingness to permit elected officials to govern. His nominees included <a href="http://en.wikipedia.org/wiki/Frank_Murphy" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">civil libertarians</a>, <a href="http://en.wikipedia.org/wiki/James_F.Byrnes" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">bigots</a>, <a href="http://en.wikipedia.org/wiki/William_O.Douglas" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">liberal activists</a> and <a href="http://en.wikipedia.org/wiki/Felix_Frankfurter" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">judicial minimalists</a>. They also included some very fortunate surprises. Justice James Byrnes, who once claimed that lynching is necessary “in order to hold in check the Negro in the south,” quit the Court just over a year after his appointment. Justice Hugo Black, who <a href="http://en.wikipedia.org/wiki/Hugo_Black" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">once belonged to the Ku Klux Klan</a>, emerged as an unexpected defender of civil rights for African Americans. Though Roosevelt’s justices took the law in a much more progressive direction then their predecessors, they accomplished this goal largely by rejecting the kind of activism that animated Lochner. An inactive Court was a progressive Court, at least compared to its predecessors.Indeed, the very idea that the judiciary could actively push the law in a more liberal direction was <a href="http://thinkprogress.org/justice/2012/10/02/931821/59-years-ago-today-the-20th-centurys-greatest-american-jurist-became-chief-justice/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">virtually unheard of before Chief Justice Earl Warren donned his black robe in 1953</a>. Warren’s tenure, which <a href="http://en.wikipedia.org/wiki/New_York_Times_Co.v.Sullivan" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">ushered in</a> <a href="http://en.wikipedia.org/wiki/Brandenburg_v.Ohio" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">modern free speech doctrine</a>, acknowledged the Constitution’s promise of “<a href="http://en.wikipedia.org/wiki/Reynolds_v.Sims" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">one person, one vote</a>,” struck a law <a href="http://en.wikipedia.org/wiki/Griswold_v.Connecticut" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">banning birth control</a> and began with the Court’s celebrated decision in Brown v. Board of Education, was the first time in American history that the Court consistently embraced the Constitution as a progressive document.By 1968, conservatives resented the Warren Court’s liberalism just as intensely as Roosevelt resented the justices’ previous efforts to impose laissez-faire Social Darwinism upon the rest of the nation. President Richard Nixon <a href="http://www.nybooks.com/articles/archives/1972/may/04/a-special-supplement-the-jurisprudence-of-richard-/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">campaigned on a promise to appoint “strict constructionists” to the bench</a> and then replaced nearly half of the Court’s members, but Nixon did not even attempt to revive the conservative activism that dominated the Court for much of its history. Indeed, liberalism continued to chalk up big wins even after Nixon’s four appointees were firmly ensconced on the bench. These nominees did provide the votes to <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0418_0717_ZS.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">impose strict limits on public school desegregation</a> and to declare that <a href="http://scholar.google.com/scholar_case?case=13531894237346705488&hl=en&as_sdt=6&as_vis=1&oi=scholarr" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">poor children do not have a right to the same educational resources as rich children</a>, but three of Nixon’s four justices also <a href="http://en.wikipedia.org/wiki/Roe_v.Wade" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">joined the modern right’s most hated decision in Roe v. Wade</a>. Indeed, Roe was authored by Justice Harry Blackmun, who would eventually abandon his earlier conservatism and <a href="http://articles.philly.com/1994-04-07/news/25864147_1_blackmun-death-penalty-gender-equality" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">become one of the most liberal members of the Court</a>.<blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; font-style: italic; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">They backed a conservative president who campaigned on a promise to appoint conservative judges, and what that got them was legal abortion in all fifty states</blockquote>For all of these reasons, it’s not hard to imagine the despair conservative lawyers felt when the <a href="http://www.fed-soc.org/aboutus/page/our-background" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Federalist Society was founded in 1982</a>. They backed a conservative president who campaigned on a promise to appoint conservative judges, and what that got them was legal abortion in all fifty states.Restoring Lochner was a pipe dream. What conservatives needed was a truce.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Constitution in 2000</h4>President Ronald Reagan’s <a href="http://www.nytimes.com/1985/10/22/world/reagan-says-he-ll-use-vacancies-to-discourage-judicial-activism.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">pledge to appoint judges who support “judicial restraint” was that truce</a>. Judicial restraint meant that judges would not question minimum wage laws or engage in union busting, but it also meant that they wouldn’t strike down abortion laws. Judicial restraint meant that a Republican president who won two consecutive landslide electoral victories could carry out this mandate without interference from the unelected branch. And judicial restraint appealed to an electorate who naturally believed that their judgment was superior to that of a few elite members of the legal profession. Meanwhile, the newborn Federalist Society provided Reagan with the evangelists he needed to carry this message to that profession.Behind the scenes, Reagan’s Justice Department crafted a vision that was quite a bit more nuanced than The Gipper’s pleas for restraint. As Dawn Johnsen has explained, much of the ground work for many of the Rehnquist Court’s decisions from the 1990s and the early 2000s which restricted the federal government’s power to legislate are <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1839&context=ilj" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">was laid by the Reagan Justice Department</a> and by President Reagan’s approach to judicial nominees. Among other things, a series of Reagan Era Justice Department documents laid out the administration’s disagreement with many Supreme Court decisions and instructed the Department’s attorneys to advance legal arguments that would promote a conservative legal vision.For the most part, however, the Rehnquist era’s decisions had a marginal impact on congressional power — at least compared to the sweeping conservative activism now advocated by people like Barnett and Brown. Two of the most widely discussed decisions, U.S. v. Lopez and U.S. v. Morrison, left largely untouched the federal government’s sweeping authority to regulate the national economy — though it did <a href="http://thinkprogress.org/health/2010/12/16/171840/constitutional-limits/" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">limit its ability to enact non-economic regulation</a>. Others limited the ability of individuals to <a href="http://en.wikipedia.org/wiki/Board_of_Trustees_of_the_University_of_Alabama_v.Garrett" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">sue states that violate their civil rights</a>. But nothing in either the Rehnquist Court’s decisions or in the Reagan Administration’s documents predicted the kind of activism now advocated by much of the Federalist Society’s membership. To the contrary, one of the most significant Reagan documents rejects the idea that judges can enforce rights that aren’t specifically mentioned in the Constitution — <a href="http://babel.hathitrust.org/cgi/pt?id=pur1.32754077977712;view=1up;seq=89" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">a position that renders Lochneran impossibility</a>:<blockquote name="f427" id="f427" class="graf graf--blockquote graf-after--p" style="box-sizing: inherit; clear: both; margin: 0px 1.5625rem; padding: 0px; position: relative; border-left: 3px solid rgb(87, 87, 206); background-color: rgb(255, 255, 255);">Where the Constitution does not specify the value to be preferred, there is no principled way for courts to discern and provide preferred treatment for such a value. Whether such a value should be accorded protection, and how much protection it ought to receive, are political matters, reserved by the Constitution to the democratic majorities in the states and the political branches of the federal government.</blockquote>Nor did this this fear of a judicial overreach cease when Ronald Reagan left office. George W. Bush’s first Supreme Court nominee — Chief Justice Roberts — told the senators overseeing his confirmation hearing that he would “<a href="http://www.americanprogressaction.org/issues/civil-liberties/report/2012/09/17/38066/an-obama-supreme-court-versus-a-romney-high-court/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">prefer to be known as a modest judge</a>.” He also warned that when judges make policy judgments, “they lose their legitimacy.” Even Justice Alito, a man who’s since emerged as the Supreme Court’s most intelligent and most effective conservative partisan, gave a nod to judicial restraint during his hearing. “[I]f judges begin to go further and announce and decide questions that aren’t before them or issue opinions or statements about questions that aren’t before them,” he told the Senate Judiciary Committee, “what happens when you do that is that you magnify the chances of getting something wrong.”<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">Endless Possibilities</h4><blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; font-style: italic; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">[W]hat’s the point of judicial restraint when you know the judges aren’t going to do much of anything that you disagree with in the first place?</blockquote>Roberts and Alito may have spoken of restraint during their confirmation hearings, but their confirmations placed the Supreme Court in conservative hands and obviated the biggest reason why Republicans once craved a modest judiciary. America in the year 2013, with Obama firmly ensconced in the White House and conservatives just as firmly in control of the Supreme Court, was the mirror opposite of the world the Federalist Society’s founders perceived in 1982. And what’s the point of judicial restraint when you know the judges aren’t going to do much of anything that you disagree with in the first place?Indeed, it is difficult to exaggerate just how radically the judicial landscape has changed since the days when Justice Scalia was an up-and-coming lawyer heading an office in the Nixon Justice Department. The Society wasn’t just founded not that long after Roe v. Wade, it also was born nine years after the Supreme Court came within a hair of equalizing some of the disparities between the rich and the poor. The plaintiffs in <a href="http://scholar.google.com/scholar_case?case=13531894237346705488&hl=en&as_sdt=6&as_vis=1&oi=scholarr" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">San Antonio Independent School District v. Rodriguez</a> challenged Texas’ policy of tying part of local school district funding to local property taxes, a practice which ensures that wealthy areas will have better-funded schools than poorer districts simply because property in more affluent areas is worth more. The Court, by a 5–4 vote with all four of Nixon’s appointees in the majority, allowed this system to stand.In his debate with Professor Barnett, Judge Wilkinson warned the gathered lawyers and judges that if they abandon judicial restraint today, they could open the floodgates to cases like Rodriguez — or even that judges could create entirely new entitlement programs. In the short term, however, this fear is hardly justified. So long as the Roberts Court’s current majority sits, it’s impossible to imagine the Supreme Court revisiting Rodriguez. Or expanding Roe. Or doing much of anything that would move the law in a progressive direction that doesn’t involve the rights of gay people — one of the few areas where so-called swing Justice Anthony Kennedy <a href="http://thinkprogress.org/justice/2013/03/19/1733801/four-ways-the-supreme-court-could-knock-out-the-defense-of-marriage-act/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">actually votes like a moderate</a>. Conservatives have little to fear from judicial activism in 2013, so they have little incentive to maintain the truce President Reagan once sought.Just as importantly, it’s difficult to exaggerate just how much the Obamacare litigation has changed constitutional lawyers’ impressions of what is now possible. When the lawsuit was filed, nearly every informed observer agreed with Judge Silberman that the lawsuit had no basis in constitutional text or Supreme Court precedent. Reagan’s former Solicitor General Charles Fried quipped that he would “<a href="http://thinkprogress.org/health/2010/04/15/171390/fried-unconstitutional/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">eat a hat which I bought in Australia last month made of kangaroo skin</a>” if the justices struck the law down.Indeed, as Josh Blackman explains in his <a href="http://www.amazon.com/Unprecedented-The-Constitutional-Challenge-Obamacare/dp/1610393287" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">detailed history</a> of the lawsuits challenging health reform, many of the lawyers closest to the litigation initially believed it was a weak case. David Rivkin, one of the leading trial attorneys challenging the law, admitted to Blackman that his “colleagues were privately skeptical” that Rivkin could win.Randy Barnett himself, after reading a pair of op-eds Rivkin co-authored laying out his legal case, concluded that “[i]f those were the best arguments that the law is unconstitutional, then I figured it must be constitutional.”And yet this argument that was widely mocked by lawyers across the political spectrum came within one vote of capturing the Supreme Court. If that could happen, why not test the limits of how far these five conservative justices are willing to go?<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Spirit of Liberty</h4>Barnett relies on what Wilkinson describes as the “very vaguest phrases of the Constitution” to support his libertarian vision. He primarily cites the <a href="http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Ninth Amendment</a>, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and the <a href="http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Fourteenth Amendment’s command</a> that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” as the provisions in the Constitution that require a judicial takeover of America’s economic policy. It’s easy to see why Judge Wilkinson would like a little more guidance from the Constitution’s text before he appoints himself overseer of the nation’s economy.But the belief that judges should be cautious before claiming they’ve found the One True Way to read the Constitution is quite often dismissed at the Federalist Society’s convention. As is Wilkinson’s rejoinder to Barnett — that when the Constitution is uncertain it’s best to defer to people who can actually get voted out of office.A Friday morning panel that also features Professor Barnett is moderated by federal appellate Judge Edith Jones, who the Federalist Society staffer tasked with introducing the panel describes as a “longtime friend of the Federalist Society.” Jones is undoubtedly a good friend of the Federalists, but she’s also a <a href="http://thinkprogress.org/justice/2013/06/05/2108181/ten-things-you-should-know-about-the-federal-judge-accused-of-racism/" rel="noopener" target="blank" style="background-color: rgb(255, 255, 255); box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">fairly notorious figure</a> among the remainder of the legal community. Jones once voted that a man could be executed despite the fact that his <a href="http://scholar.google.com/scholar_case?case=12767280366707197845&hl=en&as_sdt=2&as_vis=1&oi=scholarr" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">lawyer slept through much of his trial</a>. The Houston Chronicle reported that she once advised workers claiming discrimination to “<a href="http://business.highbeam.com/5874/article-1G1-121249869/houston-judge-says-bias-lawsuits-undermine-rule-law" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">[t]ake a better second job instead of bringing suit</a>.” And she once proposed <a href="http://thinkprogress.org/justice/2013/06/10/2126591/embattled-federal-judge-called-for-texas-to-execute-8-to-12-times-as-many-inmates-per-year/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">increasing Texas’ rate of executions by eight to twelvefold</a>.She’s also under investigation for <a href="http://thinkprogress.org/justice/2013/06/13/2148851/chief-justice-roberts-calls-for-rare-formal-review-of-allegedly-racist-judge/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">allegedly claiming that African-Americans and Hispanics are predisposed towards violent crime</a>.Towards the end of her Friday morning panel, Jones describes the Constitution as “one of the clearest, greatest documents in world history,” a description that earns her a round of applause from the audience. Yet, for all that her fellow Federalists approved of this statement, it is a ridiculous claim that casts a fair amount of doubt upon whether Judge Edith Jones has actually read the Constitution.Few people question the Constitution’s greatness, and rightly so, but the document is absolutely riddled with ambiguity. What on earth are the “privileges or immunities of citizens of the United States?” What makes a search or seizure “<a href="http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">unreasonable</a>?” Which punishments are “<a href="http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">cruel and unusual</a>?” If the government wants to deny someone <a href="http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">“liberty,” how much “process” is “due?”</a> What is a “<a href="http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">public use</a>” of private property? How should the United States guarantee a “<a href="http://www.law.cornell.edu/constitution/articleiv" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">republican form of government</a>?” What is the “<a href="http://www.law.cornell.edu/constitution/articlei" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">general welfare of the United States</a>?” Which laws are “<a href="http://www.law.cornell.edu/constitution/articlei" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">necessary and proper</a>” for carrying into effect Congress’ enumerated powers?Many of these questions perplexed lawyers and public officials even before the Constitution was ratified, and judges, attorneys and scholars continue to struggle with them to this very day. And yet Edith Jones, a woman who believes that the constitutional right to an attorney does not include the right to have that attorney be awake, is certain that she knows exactly what the Constitution means.Nearly seven decades ago, Judge Learned Hand offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. “The spirit of liberty,” said Hand, “<a href="http://www.providenceforum.org/spiritoflibertyspeech" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">is the spirit which is not too sure that it is right</a>.”</div><div></div>think pref...was, as The Donald recounts in Trump: The Art of the Deal, an eye-opening moment for Trump. “Until then,” Trump writes, “I’d never understood how Jimmy Carter became president.” But Carter’s big ask showed Trump that the former president “had the nerve, the guts, the balls to ask for something extraordinary.” As Trump sees the world, audacity — not charisma or hard work or the right connections or carefully calculated political positions, but pure distilled moxie — brought Carter all the way to the White House. Indeed, if there is a single theme that animates Art of the Deal, it is Trump’s belief that fortune favors the bold. “My style of deal-making is quite simple and straightforward,” Trump announces. “I aim very high, and then I just keep pushing and pushing and pushing to get what I’m after.”<figure class="postfigure postfigure--format-align-left" style="box-sizing: inherit; margin: 0px 2rem 2rem -10.3125rem; padding: 0px; max-width: 28.125rem; width: auto; float: left; background-color: rgb(255, 255, 255);"><div class="postthumbnail" style="box-sizing: inherit; overflow: hidden; position: relative;"><picture id="picture-343921" class="wp-image-343921 size-full " data-id="343921" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(min-width: 1920px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(min-width: 1024px) and (max-width: 1920px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(min-width: 768px) and (max-width: 1024px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(min-width: 512px) and (max-width: 1024px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(min-width: 512px) and (max-width: 768px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(max-width: 512px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="(max-width: 768px)" style="box-sizing: inherit;"><source srcset="https://i2.wp.com/thinkprogress.org/wp-content/uploads/2016/04/0pqRIuAn0bOCnIHG7.jpg?w=240&crop=0%2C0px%2C100%2C300px&ssl=1" media="all" style="box-sizing: inherit;">
</source></source></source></source></source></source></source></source></picture></div><figcaption style="box-sizing: inherit; letter-spacing: 0.06875rem; line-height: 1.45rem; margin: 1em auto 0px; max-width: 41.5625rem; text-align: center; text-transform: uppercase;">RANDY BARN</figcaption></figure>Randy Barnett, a law professor with far less fame and far better hair than Mr. Trump, appears to share very little with Mr. Trump. Philosophical when Trump is blustery, scholarly when Trump is more prone to insults, Barnett also encapsulates the views of a faction within the Republican Party that would very much like to see Trump go away. It is only a slight exaggeration to say that the ongoing Republican primary presents GOP voters with a choice between Trumpism and the vision expressed in Barnett’s new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.Yet Barnett and Trump’s books reveal them to be unexpectedly similar men. Our Republican Constitution, for one thing, rests on a very Trumpian belief in the transformative power of audacity. Barnett is the Republican Shiva to Trump’s Brahma. Trump builds palaces celebrating his own opulence and sky-scraping monuments to his own fame, while Barnett has the nerve, the guts and the balls to tear things down.More importantly, Barnett and Trump both share a deep disdain for America’s longstanding democratic norms. Trump, of course, is now engaged in a presidential campaign distinguished by its open support for campaign violence, media suppression and overt racism. Barnett is neither as flamboyant nor as fascistic as Trump, but his book very explicitly argues that the problem with the United States is that we just have too much damn democracy. Our Republican Constitution could be renamed “The Audacity of Nope.” It is Barnett’s effort to write his way out of a hurricane of big government, to deny Obama and future Obamas the power to govern as presidents since Franklin Delano Roosevelt have governed.And, while Barnett is nowhere near the household name that Donald Trump is, his vision is likely to be a much greater threat to America’s democratic norms than the orange-haired presidential contender.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">Randy Who?</h4>“I don’t hire a lot of number-crunchers,” Trump writes about his own method of seeking out new business opportunities. “I do my own surveys and draw my own conclusions.” “Critics,” Trump adds, should not been taken too seriously. “In my opinion, they mostly write to impress each other, and they’re just as swayed by fashions as anyone else.”Barnett sympathizes! He begins Our Republican Constitution with a tale of a betrayal sown by critics. In 2009, the conservative Heritage Foundation recruited Barnett into the burgeoning army of lawyers arrayed against the Affordable Care Act. The professor quickly rose to become a general in the War Against Obamacare. (Barnett remains <a href="http://thinkprogress.org/justice/2013/11/19/2944371/tedcruzification-judiciary/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">one of the most influential conservative thinkers in the country</a>, and will almost certainly be a primary architect of the American right’s litigation strategy if Republicans regain a majority on the Supreme Court.)As Barnett tells his tale of betrayal, his efforts to save America from the tyranny of freely available and affordable health insurance were beset by critics. “The great majority of law professors continued to insist that our arguments so lacked merit they should be considered ‘frivolous,’” Barnett writes. One professor even went so far as to suggest that any lawyer who pursued Barnett’s arguments against Obamacare in court “was at risk of sanctions for bringing a meritless complaint.”Though the legal standard for sanctioning an attorney in this way is very high, <a href="https://www.americanprogress.org/issues/civil-liberties/news/2012/03/07/11260/not-even-close/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Barnett’s critics had a point</a>. The case against Obamacare conflicted with Supreme Court precedents <a href="https://www.law.cornell.edu/supremecourt/text/22/1" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">reaching back to the early years of the Republic</a>. It also conflicted with an opinion Justice Antonin Scalia wrote in a case Barnett <a href="https://www.law.cornell.edu/supct/html/03-1454.ZC.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">argued and lost before the justices in 2005</a>. According to Judge Laurence Silberman, a long-serving conservative judge who received the Presidential Medal of Freedom from President George W. Bush, Barnett’s arguments against Obamacare found <a href="https://scholar.google.com/scholar_case?case=12283140068462647556&hl=en&as_sdt=6&as_vis=1&oi=scholarr" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">no support “in either the text of the Constitution or Supreme Court precedent.”</a>It is, in other words, a testament to Barnett’s audacity that he thought this case worth litigating in the first place. And it is a testament to the power of audacity that Barnett came so close to winning in the Supreme Court.Trump writes in Art of the Deal that he doesn’t normally let himself be bothered by critics, but he makes an exception for when those critics ‘stand in the way of my projects.” It’s good advice, and Barnett soon learned that there is wisdom in Trump’s words.After the justices appeared unexpectedly likely to buy Barnett’s arguments during oral arguments on the fate of Obamacare, even more prominent critics emerged. Senate Judiciary Chair Patrick Leahy (D-VT) warned that “the conservative activism of recent years has not been good for the Court.” President Obama himself weighed in to note the hypocrisy of conservatives who, until very recently, viewed the judiciary’s role as far more limited. “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.” He added that the case against Obamacare “was a good example” of judges stealing power away from lawmakers who enjoyed the mandate of the people.“We will never know if these and many other sometimes vituperative attacks on the more conservative justices had an effect on the outcome of the case,” Barnett writes mournfully of the Court’s eventual decision not to repeal the law. “But it was reliably reported that the chief justice had voted in conference to hold that the individual insurance mandate was unconstitutional, and that sometime after these attacks commenced, he switched his vote.”Sometimes the critics, with their fashionable belief that <a href="http://www.archives.gov/exhibits/charters/declaration_transcript.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">governments derive their just powers from the consent of the governed</a>, win.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">Against Democracy</h4>On the surface, Trump and Barnett have little in common. Barnett’s probably never spent a day of his professional career pondering which rare marble will transform his office from merely opulent to offensively ostentatious. Nor has the professor ever <a href="http://www.cnn.com/2016/03/03/politics/donald-trump-small-hands-marco-rubio/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">discussed the size of his genitals in a nationally televised debate</a>. Also, Barnett’s not exactly a fan of Mr. Trump’s:https://twitter.com/RandyEBarnett/status/724581094180442116Nevertheless, the two men are currently engaged in fundamentally similar projects. Trump’s presidential campaign is at war with America’s democratic norms, <a href="http://www.desmoinesregister.com/story/news/elections/presidential/caucus/2015/07/24/trump-barring-des-moines-register-campaign-event/30645343/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">punishing newspapers that criticize the candidate</a> and allegedly even <a href="http://www.theatlantic.com/politics/archive/2016/03/corey-lewandowski-arrested/475827/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">physically assaulting a reporter</a>. Trump <a href="http://www.cnn.com/2015/11/22/politics/donald-trump-black-lives-matter-protester-confrontation/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">openly encourages violence</a> against protesters who criticize his ideas. His supporters organized into a “<a href="http://www.politico.com/magazine/story/2016/04/donald-trump-2016-vigilante-security-213847" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">volunteer security force</a>” that patrols Trump rallies and tears up signs carried by dissenters.Trump <a href="https://www.washingtonpost.com/news/post-politics/wp/2016/04/17/trump-on-contested-convention-i-hope-it-doesnt-involve-violence/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">alluded to the possibility of violence</a> if Republicans try to install a different presidential nominee at their convention this July. The Washington Post <a href="https://www.washingtonpost.com/opinions/for-mr-trump-and-mr-putin-a-bond-of-power-hungriness-vulgarity-and-cynicism/2015/12/19/7c4401b0-a5b5-11e5-b53d-972e2751f433_story.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">compared Trump to Russian strongman Vladimir Putin</a>. Putin himself praised Trump as a “<a href="http://www.politico.com/story/2015/12/trump-vladimir-putin-praise-216892" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">very bright and talented man</a>.”Though Barnett is far more libertarian and less fascistic than Trump, he shares Trump’s ambivalence towards democracy. The professor’s book is a critique of what he labels the “Democratic Constitution,” and a call for an alternative he labels the “Republican Constitution.”It should be noted that Barnett does not intend these as partisan labels. As he writes, “there are political conservatives who hew to some aspects of the Democratic Constitution and some progressives who adopt aspects of the Republican one.” Rather, Barnett’s concern is that American government is simply too responsive to the will of the people as expressed at the ballot box, and that judges need to do more to rein in democracy.The Democratic Constitution, as Barnett defines it, “sets up institutional mechanisms by which the desires of a majority of the people can be expressed.” Though such mechanisms may, at first, appear more like a feature than a bug, Barnett spends much of the book warning about the dangers of an unchecked democracy. For the political conservatives he <a href="https://www.youtube.com/watch?v=KqvmmuysCJg&sns=tw" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">views as the book’s primary audience</a>, Barnett lays Obamacare’s continued existence at the feet of the Democratic Constitution:<blockquote name="3000" id="3000" class="graf graf--blockquote graf-after--p" style="box-sizing: inherit; clear: both; margin: 0px 1.5625rem; padding: 0px; position: relative; border-left: 3px solid rgb(87, 87, 206); background-color: rgb(255, 255, 255);">This is how the Obamacare case was decided as it was: a majority of the Supreme Court could assert they were deferring to Congress, the popularly elected and most democratically accountable branch. Who was the unelected Supreme Court to obstruct the will of We the People as manifested by a majority of representatives in Congress?</blockquote>Not all of Barnett’s examples of democracy run amok, however, are chosen solely to appeal to conservatives. He describes the Court’s reasoning in <a href="https://www.law.cornell.edu/supremecourt/text/163/537" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Plessy v. Ferguson</a>, the odious 1896 decision upholding racial segregation, as “a simple restatement of the deference to the will of a majority in the legislature that is at the core of the Democratic Constitution.” Barnett similarly criticizes <a href="http://caselaw.findlaw.com/us-supreme-court/83/130.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Bradwell v. Illinois</a>, an 1872 decision upholding Illinois’ refusal to grant someone a license to practice law because she was a woman, for “blindly deferr[ing] to the will” of state lawmakers.As an alternative to such deference, Barnett offers what he describes as the “Republican Constitution.” The Republican Constitution begins with the premise that we all enjoy certain “natural rights” that preexist the formation of a government. Our government’s purpose, Barnett argues, is not to “reflect the people’s will or desire” but instead to “secure the preexisting rights of We the People.”Few people contest that we all enjoy basic human rights that must be respected by governments, but a much harder question is how does one determine exactly what these rights are? Barnett answers this question by analogizing the American people to medieval monarchs. The fundamental premise of the Republican Constitution, Barnett explains, is “individual popular sovereignty.” Thus, “the rights and powers retained by the people closely resemble those enjoyed by sovereign monarchs.”Just as such monarchs “claim jurisdiction over their territories,” Barnett writes, “sovereign individual citizens have jurisdiction over their private property.” Just as a reigning monarch “may use force to defend their people and territory,” so too many American citizens “use force in defense of themselves and their possessions.” Just as a king or queen “may consensually alter their legal relations with other monarchs by entering into treaties,” so too may citizens enter “into contracts with each other.”Every man a king!<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">We’re All Republicans Now</h4>For all of his bluster and braggadocio, Donald Trump offers a fundamentally optimistic vision in Art of the Deal. Trump credits President Carter’s rise to the White House to Carter’s audacity, but there’s also another side to Trump’s evaluation of the former president. Carter’s nerve, guts and balls “above all helped him get elected president. But then, of course, the American people caught on pretty quickly that Carter couldn’t do the job, and he lost in a landslide when he ran for reelection.”One doesn’t have to share Trump’s dismissive view of Jimmy Carter to find this overarching view of the world comforting. Art of the Deal posits a world where hucksters and incompetents are eventually sniffed out, where you can’t fool most of the people all of the time. Barnett should hope that a similar rule does not apply to his ideas, because the sheer audacity of the vision expressed in Our Republican Constitution can only carry it so far.For one thing, it papers over the price attached to sovereign citizenship. Consider, for example, the right to enter into contracts that Barnett extrapolates from a sovereign’s power to enter treaties. The Supreme Court recognized this very right in its now-discredited decision in <a href="http://caselaw.findlaw.com/us-supreme-court/198/45.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">Lochner v. New York</a>, a decision that Barnett effusively praises in his book. Subsequent decisions <a href="http://thinkprogress.org/justice/2015/06/29/3674897/roberts-obergefell-dissent-conservatives/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">applying this so-called right to contract</a> invalidated laws guaranteeing a minimum wage and protecting a worker’s right to organize. If you sign a contract agreeing to work for peanuts, who is the government to strip you of your sovereign right to make such an agreement?Of course, there’s a very simple answer to this question. In the real world of kings and queens, weak nations are conquered by strong ones. Poor monarchs become vassals to wealthy ones. Might defines rights, and a king backed by a superior army is unlikely to stay their hand because their rival monarch screams “but what about my natural rights!”<blockquote class="pullquote" style="box-sizing: inherit; clear: both; margin: 0px; padding: 0px 5rem; position: relative; letter-spacing: -0.25px; line-height: 40.5px; background-color: rgb(255, 255, 255);">Unlike Barnett, Trump at least appears to acknowledge that he has to win an election before he is allowed to make policy decisions that impact millions of American lives.</blockquote>Similarly, without minimum wage laws, many workers will lack the power to bargain for better wages. Without unions, many workers will be subject to the mere whims of their employers. The Lochner case involved a state law limiting the hours worked by bakery workers in New York. Without that law, those workers <a href="http://thinkprogress.org/justice/2015/06/29/3674897/roberts-obergefell-dissent-conservatives/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">routinely worked 13 to 14 hour days</a> in sweltering dungeons riddled with rat holes, leaky sewage pipes and walls covered in roaches.If Americans actually had to choose between a world where Jim Crow could rise from the dead and one where employers gain sweeping powers to exploit their workers, then we would face a very difficult moral dilemma. Ultimately, however, Barnett is beating a straw man. Virtually no one, and certainly no one of any influence, believes in the kind of unmitigated deference that Barnett associates with the Democratic Constitution.For one thing, democracy, by its very nature, requires robust safeguards for individual rights. Jim Crow was insidious, not only because it demanded substantively inferior treatment for African Americans, but also because it systematically excluded them from participating in the democratic process itself. Modern day liberals rail against <a href="http://thinkprogress.org/politics/2016/04/02/3765448/wisconsin-primary-voter-id/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">voter id</a>, <a href="http://thinkprogress.org/justice/2013/01/24/1488491/how-the-republicans-plan-to-rig-the-next-presidential-race-in-six-pictures/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">gerrymanders</a>, and similar efforts to neutralize the voice of voters because they are direct attacks on democracy itself. A truly democratic constitution must include robust protections against voter suppression or else it cannot be described as a constitution that “sets up institutional mechanisms by which the desires of a majority of the people can be expressed.”But even if Barnett’s Democratic Constitution is capacious enough to protect against Jim Crow, gerrymandering and voter ID, the fact still remains that virtually no one of influence believes in unchecked deference to democracies. Four of the justices that <a href="https://www.law.cornell.edu/supremecourt/text/11-393" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">ignored Barnett’s pleas</a> to repeal the Affordable Care Act also voted to <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">strike down state bans on same-sex marriage</a>, while three of the dissenters in the first case voted to uphold a state lawmaker’s power to engage in marriage discrimination. One of the best predictors of whether a justice will support bold progressive legislation such as Obamacare is whether they are also inclined to strike down restrictions on abortion. No member of the Supreme Court believes in the kind of judicial deference that Barnett ascribes to Plessy, and no one who admitted to such a belief could be confirmed to serve on a federal court.There is no Democratic Constitution and there is no Republican Constitution, there is a United States Constitution which primarily leaves governance up to the people’s representatives, while also including important protections for individual rights. Whatever Barnett may claim, we do not need to choose between two extremes.<h4 style="box-sizing: inherit; line-height: 2.75rem; margin: 0px; background-color: rgb(255, 255, 255);">The Greater Threat</h4>Despite its flaws, however, Our Republican Constitution is worth studying because it is one of the clearest and most unapologetic articulations of a world view that is currently competing for control of one of our nation’s major political parties. This world view’s primary rival, of course, is the <a href="http://thinkprogress.org/justice/2015/09/21/3702258/the-168-year-old-one-eyed-racist-that-explains-the-rise-of-donald-trump/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">swaggering, racist populism offered by Mr. Trump</a>.As explained above, however, both visions are at odds with fundamental democratic norms that have animated our nation’s politics for several generations. Thus, it is fair for those of us who care about government being responsive to the will of the people to ask which of these visions presents a greater threat to democracy.To be sure, there is something <a href="http://democracyjournal.org/alcove/trump-and-the-fragility-of-democratic-culture/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">deeply menacing about Trumpism</a>. As Nathan Pippenger writes, its “key element is probably its undercurrent of violence, which amplifies the sense that Trump and his followers are uniquely willing to flirt with chaos.” Even so, and unlike Barnett, Trump at least appears to acknowledge that he has to win an election before he is allowed to make policy decisions that impact millions of American lives.Trump, in other words, sews menace into the edges of our political system while leaving its core proposition — that the right to govern flows from the ability to win elections — intact. That is no small mitigating factor. Currently, polls show Trump <a href="http://www.realclearpolitics.com/epolls/2016/president/us/general_election_trump_vs_clinton-5491.html" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">nearly 9 points behind</a> presumptive Democratic presidential nominee Hillary Clinton — and that’s assuming that Trump still manages to sew up the delegates he needs to win the GOP nomination in the first place. Both small-d democrats and large-D Democrats may view Trump as a nightmare today, but he is a nightmare they are likely to awake from soon.Come November, moreover, voters can have few doubts what they are signing up for if they cast a ballot for Mr. Trump. To borrow a metaphor from Justice Antonin Scalia, many threats to democracy arrive dressed in sheep’s clothing, offering only an arcane tweak to a legal doctrine, or an agenda hidden until after an election is won and the wolf-in-sheep’s clothing is firmly ensconced in an elected office. Certainly, Professor Barnett’s own attack on Obamacare came dressed in many layers of the purest wool. There’s a reason why legal experts across the spectrum initially believed that he had no chance of prevailing — they did not recognize that a predator was loose in the flocks of our democracy until it was nearly too late.Trump’s wolf, at the very least, comes as a wolf. And it will be seen as such if Trump himself is right that the American people eventually catch on when someone is selling little more than audacity.If, by contrast, the American people elect a president more sympathetic to Barnett’s vision, then they are far less likely to realize what they have done until they wake up one morning in a very different nation. Justice Scalia’s seat still needs to be filled, and it most likely will be filled by the next president. Up to three other seats could become vacant in the few years after that. That could easily provide more than enough votes on the Supreme Court to <a href="http://thinkprogress.org/justice/2015/03/23/3634309/darkest-timeline-new-deal-great-society-obamacare-vanish-nearly-overnight/" rel="noopener" target="blank" style="box-sizing: inherit; text-decoration-line: none; word-break: break-word; border-bottom: 1px solid rgb(144, 141, 255);">reshape the Constitution into Barnett’s vision</a>.