We The People?


Radley Balko recommended Randy Barnett’s paper on constitutional legitimacy. Barnett rightly points out that discussions about the Constitution nearly always duck the issue of legitimacy.

The work is divided into three parts, in the first two parts Barnett satisfactorily demonstrates “(a) that consent to the sort of lawmaking process established by the Constitution is nonexistent and impossible and (b)the dispensation of benefits by lawmakers does not generate a duty to obey their commands in the absence of consent.” Most of Barnett’s points here were made by Spooner and few if any were unfamiliar to me, but I appreciated Barnett’s lucid presentation of the arguments.

In the third part of his work Barnett attempts to discover a moral foundation for constitutional legitimacy without consent, but he fails. Barnett argues for two types of morally legitimate regimes: “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.” But the former are not regimes or governments at all, they are indistinguishable from private businesses and associations. Spooner has already demonstrated that the latter are nothing but wind, because rights are an objective moral consequence of man’s nature, and:

“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. “

Our moral obligations and rights are what they are as a consequence of our nature and no legislation can add anything to or subtract anything from those rights and obligations.

With regard to the U.S. Constitution Barnett concludes: “It is an open question whether the U.S. Constitution either as written or as actually applied is in fact legitimate.” Balko is not undecided on the first point, he asserts: “The U.S. Constitution as written certainly meets those criteria”

I cannot fathom how any reasonable person can think the legitimacy of the Constitution as applied can be an open question if Barnett’s standard is to be applied. Clearly the laws existing under the Constitution as applied do not assure that individual rights are not violated, since individual rights are routinely violated by laws which in practice are confirmed as constitutional.

The question of whether the Constitution is legitimate as written isn’t really open either. The Constitution grants the power of taxation to the government, but taxation can’t occur without the violation of rights for reasons that Barnett has already demonstrated.

And if the Constitution as written were congruent with individual rights it would be of no moral consequence. As Spooner demonstrated, it could not modify men’s rights or moral obligations in any way.

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