Ignoring the Lost Constitution

Over at Catallarchy, Scott Scheule is wrestling with Randy Barnett’s Restoring the Lost Constitution. I’ve been thinking about the book again, and it struck me that Barnett’s argument itself is an argument for the illegitimacy of the US Constitution.

Barnett argues that a legitimate constitution is one that has adequate procedures to ensure that its laws respect rights. What these procedures are is anyone’s guess. A legitimate constitution, according to Barnett, creates a Prima Facie Duty of Obedience. For purposes of argument, let me stipulate to this.

Yet, when Barnett reviews the US Constitution, he develops an argument for the Presumption of Liberty. That is, the acts of the government are presumptively unconstitutional unless they can be shown to be (1) necessary to protect rights and (2) proper in that they do not violate the rights of others.

But what is a Prima Facie Duty of Obedience? A prima facie duty is a duty that one presumptively has unless one can defeat it with evidence or law. Yet Barnett is saying that there is a Prima Facie Duty not to obey laws following the Constitution.

If a Presumption of Liberty is correct for the US courts, but a Prima Facie Duty of Obedience is enforceable under the legitimate constitution, then the US Constitution is illegitimate. Hence, even if Barnett’s argument holds, the US Constitution is illegitimate.

Of course, there are more serious issues attacking Barnett’s argument:

1. What happens when actual Spoonerian consent clashes with Barnett’s constitutional duty? Barnett praises Spoonerian consent and agrees with it. So which prevails?

2. If a constitution has procedures not to violate rights, then that constitution has procedures that prevent it from stopping another government from coming into competition with it. Hasn’t Barnett just reached anarchism again?

3. If two legitimate and equally just constitutional structures claim the same territory, which one’s laws prevail?

Rather than trying to figure out how to wring the most liberty out of the Constitution, it’s better just to drop it and look for legitimate ways to secure the blessings of liberty.

(Salem County represent!)

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