by David Gordon, Mises.org
The dedication of Restoring the Lost Constitution, “To James Madison and Lysander Spooner,” at once alerts us that we confront an unusual book. During the Constitutional Convention, Madison supported a strong national government; Spooner, by contrast, subjected to withering criticism the notion that the people of the United States had consented to the Constitution. Whom does Barnett support? The Father of the Constitution or the author of The Constitution of No Authority?
Barnett soon makes clear his response. He finds convincing Spooner’s assault on consent theories of political obligation. But this does not lead him to question the need for a state. Quite the contrary, he aims to extricate government from Spooner’s challenge: since consent does not underlie our obligation to obey the state, Barnett must locate something better that will do the job.
More specifically, why does the government established by the Constitution bind those subject to its jurisdiction? After usefully pointing out that, for the most part, the Constitution “purports to bind government officials, not private individuals,” Barnett poses his 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? In other words, is one morally obligated to obey any law that is enacted according to constitutional procedures” (p. 12)?
Barnett does not leave his readers long in suspense: his answer is that, under the right conditions, people are indeed obligated to obey the law. So long as the government enacts laws that are “both necessary to protect the rights of others and proper insofar as they do not violate the rights of the persons whose freedom they restrict,” people under the government’s jurisdiction have a duty of obedience (p. 45). Barnett understands rights in a way libertarians will find congenial. Rights are negative: they forbid others from interfering with our life, liberty, and property. Barnett resolutely rejects positive rights, such as an alleged right to welfare. He holds that the Constitution, if interpreted according to its original public meaning, established a government based on adherence to rights in the proper sense. Hence, so long as the government follows the Constitution, it should be obeyed.
In like fashion, I shall not leave my readers in suspense. Although the book contains much of value, Barnett’s entire project seems to me fundamentally misconceived. Suppose the government establishes a legal system, including courts and police, in order to deter violations of rights and to respond to rights violations when these occur. Let us assume further that the rights protected meet the libertarian standards that Barnett wants. Why are people under any moral duty to cooperate with such a legal system? If, e.g., the government prescribes that people pay taxes so that the system can operate, must they obey? Must they refrain from establishing competing legal systems that endeavor to compete with the government?
Individuals in their private capacities, it seems clear, stand under no parallel restraints. If someone opens a pizza parlor, in a way that violates no one’s rights, you are under no duty to cooperate with him by, say, patronizing his restaurant rather than a competitor’s. You are free to try to drive him out of business, if you can do so in a way that respects his rights.
Why are matters any different for the government? If, as Frédéric Bastiat argued in his great pamphlet The Law, the state acquires no rights that individuals do not themselves possess, where does the duty to obey the law enter the scene? How can there be a duty to obey the state if there is no duty to obey the owner of the corner grocery store? True enough, if the government is in legitimate pursuit of a criminal, we should not interfere; but why describe this obligation as a duty to obey?
Barnett might respond that I have ignored a key aspect of his proposal. Laws, to generate an obligation to obey, must not violate anyone’s rights. If so, is it not open to Barnett to say that I have raised a false alarm? Why suppose that he would allow taxes as legitimate or require obedience to laws that establish a government as a monopoly agency?
But if he takes this line, he has not established the legitimacy of a government at all. It is in any case hardly likely that Barnett will take our proffered escape. The sum and substance of his book is an attempt to justify the government established by the Constitution, and this document grants the government the power to tax, among many other powers not legitimate if exercised by private individuals.
Barnett’s proposal seems vulnerable on another count. He wishes to establish a duty to obey the law, but he never shows why it is desirable that people have such an obligation. (I do not think he would say that it’s too bad we have the obligation, but we are stuck with it.) He seems to have “bought into” this task, a longstanding project pursued by such eminent legal philosophers as H.L.A. Hart and Lon Fuller, his own revered teacher, without question. Given the manifold invidious activities of contemporary governments, our own not least among them, finding grounds for obedience to government does not strike one as an imperative necessity. And if Barnett reiterates in reply that he has in mind only a duty to obey legitimate government, he still needs to show what, other than fashion in law schools, makes this a good thing.
Barnett is much more successful when he follows in Spooner’s spirit. He raises a penetrating objection to tacit consent theories of political obligation. To those who allege that residents of a country consent to its laws by failing to leave, a response lies ready to hand, as Hume long ago pointed out. In many cases, it would be very difficult, if not impossible, for people to depart, especially if they wish to go to a place where they can avoid political obligations. How then can such constrained “consent” be held to generate an obligation to obey?
Barnett raises a deeper objection. “For remaining in this country tacitly indicates consent only if you assume that the lawmakers have the initial authority to demand your obedience or your exit in the first place. But it is their authority that is supposed to be justified on the basis of your and my tacit consent. So the problem with inferring consent from a refusal to leave the country is that it presupposes that those who demand you leave already have authority over you” (p. 18).
I fear that I have given a lopsided picture of Restoring the Lost Constitution. I have so far devoted my entire attention to Barnett’s generally wrongheaded remarks on political obligation. He devotes the bulk of the book, however, to a detailed analysis of the Constitution, in order to show that it can be interpreted to mandate the limited government he thinks justifiable. Here he includes much of value, including detailed accounts of the meaning of “necessary” powers and the scope of the power to regulate interstate commerce.
His discussion of judicial review makes a valuable distinction. Judicial nullification, the power of the courts to declare a law unconstitutional, does not imply that a court, even the Supreme Court, can order the other branches of government to conform to its view of the law. “Just as the power to negate legislation does not imply the power to enact it, neither does it imply a power to mandate that the executive branch exercise its powers in a particular mode” (p. 144). The modern view that the Supreme Court is the final authority, to which every knee must bow, on all questions constitutional is alien to the Constitution’s original intent. Barnett’s case is well made, though I wish he had devoted attention to the arguments against judicial review in that neglected classic, L. Brent Bozell’s The Warren Revolution (New York, 1966).
Barnett’s defense of original intent and negative rights deserves much praise, but in one area I think his discussion goes badly astray. Barnett is concerned not only to defend the original meaning of the Constitution against those who conjure up all manner of positive rights, allegedly found in that document’s “penumbras” and “emanations.” He also defends an expansive view of the Fourteenth Amendment.
As he sees matters, the Amendment overturns the former sovereignty of the states and subjects them to strict federal authority, should they interfere with the “privileges or immunities” of their citizens. “Owing to the Fourteenth Amendment . . . state governments no longer can claim a plenary power to restrict the liberties of the people subject only to their constitutions and any express restrictions in the original Constitution. Rather, any state abridgment of the privileges or immunities should be subject to challenge in federal court” (p. 321).
At first sight, this seems perfectly in order. Surely it is wrong for the states to interfere with rights, so long as these are construed in a libertarian way; and if the federal courts confine themselves to enforcing such rights, who can reasonably object?
But to argue in this way is to neglect the federal structure of government, present both in the Constitution and the Articles of Confederation. Fundamental to both the proponents of the Constitution and their Anti-Federalist opponents was a deep-seated distrust of centralized government. The national government was no more than an alliance of states, its powers confined to strictly delimited purposes. True enough, the states were free, so far as the Constitution was concerned, to violate civil liberties: the Bill of Rights limited only the national government. But a loose association of states would better protect rights than a strong central government, however libertarian it might profess to be.
Such, at any rate, is the theory of the Constitution; and the gross violations of rights that have taken place ever since Lincoln’s dictatorial regime show that compelling the states to submit to a federal Leviathan is not the path to liberty.
Barnett is blind to the virtues of federalism. He displays little sense of the importance of the Tenth Amendment in preserving liberty; instead, the “public meaning” of the Fourteenth Amendment, ratified under questionable circumstances, is treated as if it were on a par with the original intent of the Constitution’s Framers. Further, even on its own terms Barnett’s discussion of the Amendment is incomplete. He takes a very broad view of the aims of the Amendment, and the new powers accordingly conferred on the central government. He takes no account of critics of this interpretation, who claim that the authors of the Amendment had much more limited ends in view. Raoul Berger and M.E. Bradford might never have written on the Amendment, so far as our author is concerned.
David Gordon, senior fellow of the Mises Institute, is editor of the quarterly Mises Review.