I question this claim by Dr. Barnett -- that the Constitution binds "government officials, not private individuals". The USC is the highest law of the land. Period. It binds,and covers with its sheltering wings, every citizen of this country. The fact that mistakes have been, and will be, made -- indeed, some of them grievous -- in its name is not the fault of the document. The fault lies in unconquerable arrogance, political sensitivity, and all the other frailties that we humans are heir to.
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Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?
No, sir, with all due respect I disagree. The fundamental question re: the Constitution is:
Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States?
As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.
More research by Barnett into theories of the Constitution, "then" and "now"; i.e., the original intent of the Framers vs. modern "prudential" and ideological constructions:
FUNDAMENTAL-RIGHTS JURISPRUDENCE & THE NEW DEAL
At the end of the 19th century, as the so-called "Progressive" movement grew, legislation was passed at the state level regulating and restricting economic activity.
At the same time, morals legislation became much more pervasive, though often falling under the rubric of "public health" — what historian Ronald Hamowy has called the "medicalization of sin."
All this was part of an intellectual and political movement to improve upon the result of personal and economic choices by aggressively using government power to improve the general welfare.
Around the turn of the 20th century, the Supreme Court sporadically resisted this movement, striking down some (but far from all) laws restricting economic activities, and also state laws that, for example, prohibited private Catholic schools.
The Court was sharply criticized by Progressives at the time for being "activist" and political, though even some constitutional historians on the left today, such as Howard Gillman, acknowledge the continuity between the principles of the Founding and what the Progressive-era Supreme Court was trying to do in circumscribing state power.
With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.)
Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous "Footnote Four" was satisfied.
Heightened scrutiny would be given to a statute that
(a) "appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,"
(b) interfered with the political process, or
(c) messed with a discrete and insular minority.
This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press.
(The fact that the right to bear arms — explicitly mentioned in the Second Amendment — has not been judicially protected, shows the ideological nature of this maneuver.)
Ironically, no one has been more stalwart in allegiance to the Roosevelt-New Deal judicial philosophy of Footnote Four than today's judicial conservatives, such as Robert Bork.
Randy Barnett