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 Spoonerâ€™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 Spoonerâ€™s challenge is presented in Part 1 of this book.