the Lost Constitution: The Presumption of Liberty. By Randy
E. Barnett. Princeton, New Jersey: Princeton University Press, 2004.
Barnett is among the world's leading libertarian academics and lawyers,
perhaps second only to Richard Epstein in influence. In fact, Mr.
Barnett (1977, p. 15) has defended anarcho-capitalism in these very
pages, which makes his most recent book, Restoring
the Lost Constitution, most curious. In it, he attempts to legitimate
the United States government by arguing that, properly understood,
the U.S. Constitution establishes libertarianism throughout the
land by both limiting the federal government's powers and empowering
the federal government to restrain the states.
well-intentioned, the book is fatally flawed. Mr. Barnett's arguments
that a monopoly government can be legitimate are unpersuasive; his
arguments that the federal government should limit its own power
are futile; and his arguments that the federal government should
impose libertarianism on the states are dangerous.
Governed Do Not Consent
author begins soundly enough, with an admirable refutation of the
arguments of others for the legitimacy of government, clearly inspired
by Lysander Spooner's The
Constitution of No Authority.1
He rightly rejects the idea that the federal government was formed
by "We the People" or with "the consent of the governed,"
and knocks down several putative claims for legitimacy based upon
shows, for example, that voting rights do not create consent. A
vote for a candidate does not necessarily indicate consent to anything
the candidate may do in office – it may merely be (and almost
always is) a vote in self-defense against an even worse candidate.
Further, there is no way to choose not to "consent" through
voting because under this theory, the nonvoter is assumed to have
consented, too, by forgoing his opportunity to vote.
Barnett also refutes arguments that one consents to a nation's government
simply by living within its borders. To argue that residency equals
consent, one must assume "that lawmakers have the initial authority
to demand your obedience or exit in the first place." The residency
argument cannot support this assumption anymore than it could be
said that a rape victim consents "simply by being there."
Barnett also effectively disposes of the arguments of those who
say the country's founders consented on our behalf. First, the founders
themselves did not unanimously consent to our government. Second,
even if they had, they could not have consented on behalf of the
rest of us, because we did not give them that authority. Consent,
by definition, can only be given by the individual. If this were
not the case, there would be no need for, say, trial by jury. Your
representative in a state legislature or the U.S. Congress could
simply waive your rights for you. After all, they are your "duly
he shows that acquiescence does not equal consent. True, there must
be general acquiescence for a government to exist at all, but that
cannot be the same thing as consent.2 Otherwise,
even the most oppressive regime would be legitimate.
all this, Mr. Barnett is unwilling to give up on the idea of legitimate
government. He notes that at some level, unanimous consent of the
governed is possible – for example, in private condominium
developments such as the one in which his parents live. But because
state and federal governments control areas too large to have unanimous
consent, he writes (p. 43), "If these lawmaking authorities
are to command a duty of obedience, it must be on some grounds other
than consent of the governed." He then searches for and finds
other grounds which he believes legitimate the Constitution and
overcome Spooner's Constitution of No Authority objections.
a self-described libertarian would feel a need to go down this road
at all is unclear. He has just acknowledged that unanimous consent
exists and works well in private communities. Is this not the libertarian
ideal? Perhaps he believes we need larger political units encompassing
nonconsenting parties for some compelling reason – maybe for
the provision of so-called public goods, such as police protection
or roads. But he does not present any such argument here, let alone
refute the ample literature showing such larger political units'
non-necessity. Instead, he rushes forth to make the case for the
do this, he avers that consent is not the only foundation upon which
a legitimate government may rest. A government is also legitimate,
he says, if it provides (p. 46) "procedural assurances that
the rights of the nonconsenting persons upon whom [its laws] are
imposed have been protected." Thus, a government that prohibits
the initiation of acts of force and fraud against peaceful people
is legitimate. He finds this consistent with Spooner's (1971, vol.
4, p. 143) statement, "Justice is evidently the only principle
that everybody can be presumed to agree to, in the formation
Mr. Barnett does not address how a government may legitimately have
a monopoly on the use of force and the provision of
defense, law, and justice, as our federal and state governments
do. Certainly he would agree that any justice system, state or private,
will be imperfect and, despite the best "procedural assurances,"
an innocent person may be wrongly convicted of and punished for
a crime. Can we not justify such a system only on the ground that
the party being punished consented to participate? And besides,
will a monopoly law-and-justice provider not be, like all socialist
enterprises, inferior to private alternatives that would exist but
for the monopolist?
Barnett seems to simply assume that a monopoly government with the
right "procedural assurances" will be a perfect justice-dispensing
machine, or at the very least, not inferior to private (consented-to)
alternatives. Perhaps the greatest fault of his book is that it
does not even attempt to support this unstated assumption.
on this theory of legitimacy, Mr. Barnett argues that the U.S. Constitution,
rightly understood, establishes a legitimate government, because
it protects natural (libertarian) rights.
the serious problems with his ideas about governmental legitimacy,
Mr. Barnett does a fine job illustrating some of the founders' more-or-less
libertarian intentions and how they are reflected in the Constitution.
But as we shall see in a moment, good intentions count for nothing.
Barnett begins by arguing for an originalist interpretation of the
Constitution – interpreting it as the general public would
have at the time it was written, based upon the text. That is, he
interprets the constitution according to its original meaning,
rather than its authors' original intent. Here again, his
inspiration is Lysander Spooner, who applied this method in his
1847 book, The
Unconstitutionality of Slavery.3
we must have a constitution, libertarians should find Spooner/Barnett
originalism the most appealing way to interpret it. As Mr. Barnett
persuasively argues, a government operating by a fixed set of rules
seems preferable to one that can make up the rules as it goes along.
Originalism may be all the more appealing because Mr. Barnett presents
a strong argument that the originalist Constitution creates a federal
government of extremely limited powers. For example, he shows that
the "Necessary and Proper Clause" does not extend Congress's
powers beyond the few enumerated in Article I of the Constitution;
that the "lost" Ninth Amendment – which courts have
always ignored and "conservatives" such as Robert Bork
deny has any meaning at all – prevents Congress from infringing
natural rights under most circumstances; and that the Commerce Clause
has been greatly distorted to give Congress far more power than
it was ever intended to have.4
Barnett's well-reasoned and well-supported arguments for a limited
federal government make up a large portion of the book, but I make
short shrift of them here because, despite their appeal, they are
almost entirely useless. The Ninth Amendment and the Commerce Clause
are not, as he says, "lost" – they have been in the
Constitution all along. Courts have distorted these provisions not
because judges have not had Randy Barnett to explain their true
meaning. Courts have done so because they are part of the very federal
government Randy Barnett seeks to limit. In general, judges and
those who appoint them have no reason to want to limit government.
Barnett naïvely sees judges as somehow more trustworthy than
other government officials. He argues that courts should give less
deference to Congress than they do now because, while we once "assumed
that legislatures really do assess the necessity and propriety of
laws before enacting them," we now know better. "In recent
decades," he writes, we
have remembered the problem of faction. . . . We now understand
much better . . . than our post-New Deal predecessors . . . that
both minorities and majorities can successfully assert their interests
in the legislative process to gain enactments that serve their own
interests rather than being necessary and proper. (p. 260)
one must wonder how much Mr. Barnett has learned from twentieth-century
history. Have not judges been responsible for some of the most outrageous
expansions of government power? And, after all, are judges not a
product of the same political system that gives us legislators and
presidents? What president would appoint judges who would tell him
he cannot do anything he wants? What Senators would confirm a judicial
candidate who tells them that everything they have ever done in
office is unconstitutional? The whole enterprise of libertarian
constitutional theory ignores all we have learned from public choice
economics about the incentives of government actors.
nothing short of a libertarian revolution would be necessary for
courts to begin doing what Mr. Barnett wants them to. How could
such a revolution come about? Not by educating people about the
Constitution, but by educating them about liberty. And any good
libertarian education reveals that "limited government"
course, if Mr. Barnett and likeminded libertarians can persuade
the federal government that it lacks the power to do certain things,
that is to be applauded.5 But
such efforts are not only futile in the long run, they also perpetuate
the myth that "limited government" is possible if only
we put the right ideas in front of the right government officials.
This seems an unfortunate waste of talent for a powerful mind such
as Randy Barnett's.
Power over the States
Barnett gets even more far out in his discussion of the Fourteenth
Amendment and federal power over the states. The Fourteenth Amendment
provides, among other things, that "No state shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States." Mr. Barnett believes that
with these few words the Constitution requires federal courts to
impose almost the whole libertarian program upon the states.
honest originalist, libertarian or not, finds several problems with
the author's view. First, it ignores arguments that the Fourteenth
Amendment was passed in violation of the original Constitution and
is therefore void (McDonald 2000, pp. 212–13). Second, it is simply
inconceivable that legislators and the public of the 1860s not only
envisioned the likes of Lawrence v. Texas,6 but
were so comfortable with this implication of their Amendment that
they did not discuss it at all. Granted, discerning original meaning
can be a rather tricky business – indeed, when talking about
terms such as "privileges and immunities" that are not
in the average layman's vocabulary, it may be difficult to distinguish
"original meaning" from "original intent," as
Mr. Barnett's originalism attempts to do. But whatever the Fourteenth
Amendment meant to its authors or nineteenth-century Americans,
it must have been something less than sanctioned sodomy across the
if the Fourteenth Amendment's authors did intend to "enact
Mr. Herbert Spencer's Social
Statics," and give judges the power to enforce it,
libertarians should find this undesirable. Political decentralization
was responsible for liberty flourishing in the West in the first
place. Slavery and Jim Crow laws were evil, of course, but Mr. Barnett
and some other well-meaning libertarians seem to have allowed it
to distort their perspective. Further, a powerful federal court
consisting of libertarian judges may achieve short-term good,7
but what will be done with that power once it is inevitably back
in the hands of the statists?8 We
have seen in the twentieth century just the sort of damage judges
empowered by the Fourteenth Amendment can do. Any alleged good intentions
behind the Amendment's passage did not prevent them from doing this.
what if we follow this libertarian centralism to its logical conclusion?
If it is proper for the federal government to impose liberty upon
the states, then it must be appropriate – indeed, even better
– for a world government to impose liberty upon everyone. Such
a view also justifies U.S. military intervention as it "liberates"
other countries. If a legitimate government needs only certain "procedural
assurances," then there may be nothing illegitimate about any
government the U.S. empire installs anywhere in the world –
just give them the right constitution (perhaps the Cato pocket edition),
the Lost Constitution has a laudable goal, but advises
inappropriate means for achieving desirable ends. Randy Barnett's
obvious intelligence and appreciation for liberty make it all the
more disappointing to see him squander his talents trying to rescue
a document that has shown itself so incapable of protecting liberty,
and so capable of justifying offenses against it.
- Mr. Barnett
has made this and other Spooner works available
Mises (2002, p. 46): “Only a group that can count on the
consent of the governed can establish a lasting regime.”
- See also
- Most of
these arguments have been made before, by Mr. Barnett and others.
See, e.g., Epstein (1987) and Barnett (1991, 1993). And for a
compelling libertarian analysis that looks less favorably upon
our founders' Constitution, see Royce (1997).
himself recently argued before the Supreme Court that the Commerce
Clause does not allow Congress to prohibit medical marijuana use,
in Ashcroft v. Raich, No. 03-1454. As of this writing,
the decision is pending, and court-watchers doubt the justices
will side against the feds. See Greenhouse (2004, p. A-20).
- In this
2003 decision, the U.S. Supreme Court held that the Fourteenth
Amendment bars states from prohibiting sodomy. 539 U.S. 558.
- It certainly
seems justifiable, from a libertarian perspective, for a litigant
to use the federal government against his local government, if
necessary to exercise his natural rights. But we can still object
to the institutional arrangement.
- On this,
and the Fourteenth Amendment generally, see Healy's outstanding
critique of u201Clibertarian centralism,u201D including the ideas of Randy
Barnett, Roger Pilon, and Clint Bolick.
Randy E. 1997. "Was Slavery Unconstitutional Before the Thirteenth
Amendment?: Lysander Spooner's Theory of Interpretation."
Pacific Law Journal 29 (977).
- 1993. "The
Original Meaning of the Necessary and Proper Clause." University
of Pennsylvania Journal of Constitutional Law 5 (183).
- 1991. "A
Ninth Amendment for Today's Constitution." Valparaiso
Law Review 26 (419).
- 1977. "Whither
Anarchy: Has Robert Nozick Justified the State?" Journal
of Libertarian Studies 1 (Winter): 15.
Richard A. 1987. "The Proper Scope of the Commerce Power."
Virginia Law Review 73 (1387).
Linda. 2004. "States' Rights Defense Falters in Medical Marijuana
Case." New York Times (November 30): A-20.
- Healy, Gene.
14th Amendment and the Perils of Libertarian Centralism."
Forrest. 2000. States'
Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence:
University Press of Kansas.
- Mises, Ludwig
von Mises.  2002. Liberalism:
The Classical Tradition. Ralph Raico, trans. Auburn, Ala.:
Ludwig von Mises Institute.
- Royce, Kenneth
W. 1997. Hologram
of Liberty: The Constitution's Shocking Alliance with Big Government. Austin,
Tex.: Javelin Press.
Lysander.  1971. The
Unconstitutionality of Slavery, rev. ed., reprinted in
Charles Shivley, ed., The
Collected Works of Lysander Spooner. Providence: M and