Barnett's New View
From Eric Knauer:
In the preface of Randy Barnett's new book, Restoring the Lost Constitution, he states:
"In his best-known work, No Treason, Lysander Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it was imposed. Although as an undergraduate, I found Spooner's argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical...
My answer to Spooner's challenge in found in part I of this book."
In part I he writes,
"For a law is just, and therefore binding in conscience, if its restrictions are 1) necessary to protect the rights of others and 2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.
"The second of these requirements dispense with the need to obtain the consent of the person on whom the law is imposed. After all, if the law has not violated a person's rights, then that person need not consent to it. The first requirement supplies the element of obligation. If the law is necessary to protect the rights of others, then it is as obligatory for the person on whom it is imposed as protecting that person's rights is obligatory on the legal system itself. Persons have an obligation to obey such a law just as they have an obligation to respect the rights of others. While the protection of rights is not the only function performed by a government, it is the only function that -on this account of legitimacy- justifies restricting personal freedom in the absence of the actual consent of the individual...
"Therefore, when we move outside a community constituted by unanimous consent, every freedom-restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted. In the absence of actual consent, a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just in this respect. If a lawmaking process provides these assurances, then it is 'legitimate' and the command it issues are entitled to the benefit of the doubt. They are binding in conscience unless shown to be unjust...
"On this account, there are not one but two sources of binding law: laws that are produced by unanimous consent regimes, and laws that are produced by regimes whose legitimacy rests solely on their procedural assurances that the rights of the nonconsenting persons on whom they are imposed have been protected."
This passage seems to suggest a dramatic change in political philosophy compared to Barnett's old writings where he equates nonconsensual government jurisdiction with aggression (Rothbard quotes Barnett in The Ethics of Liberty on this point).
Does anyone find his new position compelling?
Comments (8)
Perhaps,
But many of the powers the constitution gave congress DID aggress against the rights of law abiding citizens.
The ability to grant monopoly patents agresses on the rights of others to use their real property the way they want to for one.
Government ownership of waterways, prohibited private ownership of them. etc.
On the other hand I do disagree with Spooner. In so much as the Constitution was meant to be a restriction on government(as opposed to a restriction on soveren individuals and people) it IS legitamate.
Another thing The Constitution WAS agreed to by unanimous consent by the States. So if the constitution is illegitimate, it would only be because the state governments themselves are illegitimate.
Just some thoughts,
Tracy
Published: February 28, 2004 11:52 PM
The Constitution was not meant as a restriction on the power of the government. The government was far weaker under the Articles of Confederation. The Constitution was created to make a more active and powerful government, not a weaker one.
- Josh
Published: February 29, 2004 1:16 AM
The Constitution was still meant to restrict the power of the national government. However, while it was ratified unanimously by the states, that wouldn't matter to Spooner. As an individualist anarchist, he argues that it wasn't unanimously consented to by every individual. We aren't obligated to recognize the authority of the Constitution because it fails to do what it was meant to do, restrict the power of government. Would a better designed Constitution do any better? Probably not. In any case, the Constitution itself contains elements that do not pass Barnett's new rules, so at least with respect of our Constitution, it would seem that Spooner is still right. I regret that I don't know enough about Barnett's work, yet, to comment on the apparent shift in his position.
Published: March 1, 2004 12:38 AM
I don't think Spooner would argue that any law not consented to has no authority. Obviously, natural law need not be consented to and violaters of individual rights can be punished and forced to pay restitution whether they consent to natural law or not. As a defender of natural law, Spooner would probably have agreed to Barnett's two rules, if not with Barnett's application of them. Spooner denounced the Constitution not merely because it was not consented to unanimously by all of the people throughout its history, but because it failed to restrain the government it gives apparent legitimacy to and violates natural law in any case. Natural law is superior to Constitutional law. If the latter is not consistent with the former, it is illegitimate. And, according to Barnett's own standard for legitimacy, the Constitution fails to provide adequate assurance that laws passed by the government it empowers will be just.
Published: March 1, 2004 12:57 AM
Spooner held that legislation could produce nothing better than hot air:
"Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, --- that is, all the laws of their own making, --- have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations. If they command men to do justice, they add nothing to men's obligation to do it, or to any man's right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice could permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing."
Barnett has raised these arguments before and I've dealt with them here:
http://www.no-treason.com/comments.php?id=P289_0_1_0_C
Briefly, an agency which violates no rights isn't imposing anything on anyone.
Published: March 1, 2004 1:45 AM
I have the book but have not yet read it. That said--on the one hand, I tend to agree with Barnett's NARROW point that no consent is needed to subject someone to a just law. I have never agreed with some anarchists that a private defense or justice agency only has jurisdiction over pre-existing customers. If an aggressor attacks a PDA's customer, the PDA can pursue and punish him, even if he is not a customer himeself. The PDA does not need the aggressor's agreement. Ostracism is not the only option.
That is, it does not violate the rights of an aggressor for his victim or the victim's agency to punish him--he does not need to have consented to the punishment beforehand.
However, I don't see how this justifies the state, or our own Constitution. To justify the state you need to show more than that a given law is itself just. For example, the mafia might control a neighborhood and announce that any private citizen who commits murder will be punished for it. Sure, any murderer has no right to complain if he is punished by the mafia, but does that justify the mafia's existence, or even its enforcement of its own "laws" against murder? Especially when it exempts itself from those laws, taxes people to enforce those laws, and outlaws competing agencies? I fail to see the relevance that some federal or state laws happen to be the same kind of laws that would be enforced in practice in a free, stateless society. Even a stopped clock is right twice a day.
Published: March 1, 2004 9:47 AM
I think most anarchists would agree that criminals need not consent to jurisdiction when they break the law, but what about non-criminals who choose not to consent and want to choose an alternative agency that is perhaps more efficient? It's almost as if Barnett has moved into the Randian "perfect objectivist government" camp. The problem with this position (utopian in my mind) is that is requires the government to be and remain nonaggressive to be considered legitimate. Barnett has persuasively written elsewhere on the corrupting nature of monopoly government and that the right to opt out could be an effective restraint on illegitimate monopoly power. In his new book, he doesn't mention secession at all. "The Structure of Liberty" wasn't written that long ago. I'm curious if Barnett's views changed between publishing that and writing the new book.
Barnett's new book is a nobel attempt to have the Constitution operate the way it was originally supposed to. I just don't see how a Constitutional Republic, especially one that claims jurisdiction over the entire United States, is practical even based on Barnett's new standards.
Published: March 2, 2004 12:05 PM
The first power granted to Congress by the Constitution violates Barnett's rules: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises...."
It is not necessary to tax me to protect my rights, since I can make voluntary arrangements myself to protect them, or assume the responsibility myself.
Taking my money (i.e., my property) via taxation necessarily violates my pre-existing right to determine how to dispose of my own property.
The Constitution may have set up a limited Republic, but with no penalties stipulated for elected officials who violate their oaths (other than removal from office by irate voters), the government established is a de facto democracy, since elected officials can do whatever the voters allow them to get away with, the words of the Constitution and their oaths to support the same notwithstanding.
Published: March 10, 2005 2:59 PM