Randy Barnett’s Oddly Brief Response To Spooner

The previous post on Randy Barnett caused me to revisit my copy of Restoring The Lost Constitution. Just to recap, it’s widely claimed that Barnett’s book is a refutation of Lysander Spooner’s No Treason – The Constitution Of No Authority (*). Just for fun, I had a look at the Index of Names, looking specifically for all of the references to Spooner’s classic piece to see for myself just how neatly Barnett was able to demolish Spooner’s arguments. So how many times do you suppose that Barnett refers to Spooner’s No Treason in his 300-odd pages?

Get ready for it: once. In the introduction, he refers to having read No Treason years ago and finding it “unanswerable” at the time. Barnett then implies a few sentences later that this first impression has since changed. And that’s all he’s got to say about that. All of the other references to Lysander Spooner listed in the index (all seven others) are references either to Spooner’s Unconstitutionality Of Slavery or to Barnett’s writings on that same work. For perspective, Robert Bork is indexed as being mentioned in nine places.

Just in case that wasn’t clear: In Restoring The Lost Constitution, Randy Barnett refers to Robert Bork in more places than he refers to Lysander Spooner.

I personally find this brevity to be quite striking.

(*) Update [9-11-06]: It’s come to my attention that not everyone knows that Barnett’s book purports to be a refutation of Spooner. A couple of quotes ought to clarify matters. First, Barnett gives us an introduction to Spooner (first page of the book’s Preface):

In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and never could have been consented to by the people on whom it was imposed.

Then Barnett makes this odd claim (pages xiii and xiv):

Whether or not Spooner was right in this assessment of the constitutionality of slavery, his argument opened for me an entirely new position: a defense of original meaning rather than original intent that could withstand the well-known critique of originalism. The final missing ingredient was an answer to Spooner’s later charge [i.e., as laid in No Treason — ed.] that the Constitution was without authority because it lacked actual consent. My answer to Spooner’s challenge is presented in Part 1 of this book.

9 thoughts on “Randy Barnett’s Oddly Brief Response To Spooner”

  1. So Barnett wrote a book advocating originalism and cited more frequently perhaps the best known originalist in current American politics than a 19th century anarchist few outside of the deepest core of libertarian theory have heard of. Fascinating.

  2. Scott,

    Perhaps you’re unaware that Barnett makes the claim that his book refutes Spooner:

    Whether or not Spooner was right in this assessment of the constitutionality of slavery, his argument opened for me an entirely new position: a defense of original meaning rather than original intent that could withstand the well-known critique of originalism. The final missing ingredient was an answer to Spooner’s later charge that the Constitution was without authority because it lacked actual consent. My answer to Spooner’s challenge is presented in Part 1 of this book.

    That quote is from the bottom of page xiii and the top of page xiv of the 2004 edition of Barnett’s book, bolding mine. Now which “later work” of Spooner’s was it, again, where he said that the Constitution was without authority? That’s right, Scott, it was No Treason, and Barnett just got through telling us that on the first page of the preface:

    In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and never could have been consented to by the people on whom it was imposed.

    You’ll note how Barnett claims that his argument rests on his having found an answer to Spooner’s charge. Now, given that Barnett is both claiming to answer Spooner’s No Treason and claiming that that answer is a critical ingredient to his originalist theory, don’t you find it peculiar that Barnett doesn’t actually quote or reference any particular piece of any of Spooner’s No Treason essays?

  3. Not really. I had forgotten the line that Restoring was a refutation of Spooner, but even so, no, it doesn’t seem particularly stunning to me that he should not quote No Treason. Now if he had failed to address Spooner’s arguments en toto, yeah, that’d be weird, but as I recall most of the flavor of the first part of the book was Spoonerian. We the people is a fiction, et al.

    JTK’s arguments are more interesting.

  4. I had forgotten the line that Restoring was a refutation of Spooner, but even so, no, it doesn’t seem particularly stunning to me that he should not quote No Treason.

    Right, Barnett is assuming that everyone reading his book has a solid enough understanding of the No Treason essays that no quotations or detailed references are necessary.

    Now if he had failed to address Spooner’s arguments en toto, yeah, that’d be weird,…

    He doesn’t even paraphrase Spooner, so how’s his readership supposed to make that judgement? But as it turns out Barnett doesn’t completely address Spooner’s arguments.

    Very roughly, Barnett’s argument is that a government is legitimate if it doesn’t violate rights and thus the US Constitution could be proven legitimate if it could be proven to not violate rights. But Spooner points out repeatedly that this government violates rights on a massive scale. In fact that’s the point Spooner makes with his famous close:

    But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

    We can unpack Spooner’s prose a bit here:

    Whether the Constitution is a contract, a Magic Space Alien Edict, or something else, it really doesn’t matter. Either the Constitution authorizes the massive rights violations of this government, or it’s done nothing to prevent the massive rights violations of this government. In either case, it’s wholly without authority. Of course really it’s both: a cursory reading of the powers granted to Congress is enough to prove that the Constitution violates rights in theory and reading any newspaper shows that this government violates rights in practice.

    (Aside: It’s pretty funny that Spooner goes on for pages and pages about the issues of consent and contracts and then drops the hydrogen bomb at the very end: “Oh yeah, and by the way…”. That’s gotta be an intentional trap.)

    So Barnett’s book is busted flat by two sentences of one paragraph of one of the No Treason essays alone. Is it any wonder he’d rather talk about Robert Bork and Alexander Hamilton (13 mentions!) than Lysander Spooner?

  5. Barnett has an interesting comment in Why You Should Read My Book Anyway: A Reply to Trevor Morrison http://www.randybarnett.com/pdf/replytomorrison.pdf : “The prospect of admitting that the Constitution of the United States is illegitimate does not frighten me, but it apparently frightens those who would ignore or reject its terms while still claiming that it is “The Constitution” they are expounding. I merely maintain that they cannot have the Constitution and eat it too.”

    Also see note 23: “In my book, I make no claim about the legitimacy of the original Constitution before its later amendment. Indeed, I write: “It is an open question whether the U.S. Constitution—either as written or as actually applied—is in fact legitimate.””

  6. Also, re Barnett’s views on the legitimacy of the state, this exchange between Huebert and Barnett is of interest: Huebert’s review of Barnett’s book; Barnett’s reply; Huebert’s reply.

    One other point: Some people make the claim that Bork’s theory of constitutional interpreation is “original intent” and that Barnett’s is “original meaning”: but on this, see Barnett: http://www.randybarnett.com/nonoriginalists.htm :
    ” Perhaps most important of all, however, originalism has itself changed–from original intention to original meaning. No longer do originalists claim to be seeking the subjective intentions of the framers. Now both Robert Bork and Antonin Scalia, no less than Ronald Dworkin and Bruce Ackerman, seek the original meaning of the text. As stated by Robert Bork:
    “‘Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.'”

    See also: http://en.wikipedia.org/wiki/Originalism#Forms_of_originalism

    Original intent
    The “original form of originalism” was known as intentionalism, or “Original intent”, and entailed applying laws based on the subjective intention of its authors. For instance, the authors of the U.S. Constitution would be the group of “Founding Fathers” that drafted it. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, for clues as to their intent.

    [edit ]
    Problems with original intent
    However, a number of problems inhere in intentionalism …

    In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia, [7] Robert Bork[8] and Randy Barnett,[9] came to the fore. This is dubbed original meaning.”

    ***

    Now this is not to say that there are not differences between Bork’s “original meaning” view and that of Barnett/Spooner: but they are both original meaning views, not original intent views, as some ignorant types might maintain.

  7. Kinsella,

    There are useful links there, thanks.

    Barnett:

    It is an open question whether the U.S. Constitution—either as written or as actually applied—is in fact legitimate.

    I’ve quoted this before – with incredulity that anyone can consider it an open question by any of the standards Barnett contemplates:

    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.

    I would add that the Constitution as written must fail Barnett’s procedural test of legitimacy since in unambiguously institutionalizes rights violations.

    So how is the question open?

  8. Barnett’s books does reply to Spooner’s arguments. He basically discusses why the constitution is legitimate. He makes little mention of Spooner per se because there is no need to do so. He is laying out his case. There are two different things here. One is the argument itself and the other is Spooner. One can reply to the first without replying spcifically to the second. George Smith’s book on atheism refutes the cases of many theists. In the process he may directly refute a specific theist or just refute a specific argument without mentioning the theist. I have no trouble understanding this. So I saw Barnett’s book as reply to the arguments of Spooner when I read it (and I had missed the mention of Spooner early on). So without that mention I still saw it as a reply to Sponnerian arugments.

  9. Kennedy: yes, good point. I think I read this comment of yours previously. Quite right.

    Get Real: I think you are missing the point.

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