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Discourses on Social Order

Critique of "Restoring
The Lost Constitution"

This essay is a critique of the thesis of and arguments within Randy Barnett's latest book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004), (RLC) listed on his website, that and how the US Constitution can be legitimized. My critique is based on a full reading of the sections of the book (Chapters 1-3) which define and attempt to prove this thesis, but I (Paul Antonik Wafer's) directly address only the text of the Introduction section of the book which has been placed in the public domain. I have not read the rest of his book since if one does not accept Barnett's basic thesis put forth in the first three chapters of the book (which I don't), there seems to be little point in reading further.

Barnett's text is on the left side below and my comments about any particular part are on the right, where I have broken his text. I have numbered each comment which involves a separate point. Text on the left with no comment on the right indicates that either I agree with what Barnett says, or I have no knowledge about or interest in it.

"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed." -- JOHN MARSHALL (Marbury v. Madison - 1803)

1) The meaning of this quotation placed here right at the beginning of Barnett's text very clearly states that the purpose of the Constitution, and presumably the special role of the Supreme Court defined within it, was to ensure that the powers of the legislature should be limited to those written within that document. Therefore, it is somewhat ironic that Barnett chose for the opening passage of his book a quotation from the Supreme Court Justice (Marshall) who would be the first to begin the emaciation of that document by his highly expansive interpretation of the "Necessary and Proper Clause" first in 1803, and more completely in the McCulloch v. Maryland case of 1819, a bare 30 years after the enacting of the Constitution (RLC pp 168-189).

Had judges done their job, this book would not need to be written. Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten "police power" of the states. All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten.

2) However there is no manner, short of requiring that all judges be "saints", in which a constitutionally defined and entitled Judiciary with a natural interest in maintaining and enlarging its influence and prestige will have sufficient incentive to "do their job" in a consistent manner over an extended period. The Judiciary, as much as any other branch of government, will ultimately conspire to enlarge its own power and that of the other branches of government at the same time. Even a vegetarian fox installed by the chickens to guard their hen house will be susceptible to a carnivorous fox which brings him tasty vegetables to eat.

Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they all had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty.

3) However, when the interpretation and safeguarding of any such document is placed in the trust of self-interested humans who can by their interpretations in any manner promote that self-interest, there is no way to prevent the natural self-interest of such trustees from interpreting that document to enlarge such islands of government powers into a shrinking sea of liberty.

The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers. Judicial redaction has created a substantially different constitution from the one written on parchment that resides under glass in Washington. Though that Constitution is now lost, it has not been repealed, so it could be found again.

4) No document can prevent such a redaction (ie. reduction in quality by deletions of parts) of itself when it defines a state, however minimal, with monopoly power in a geographical area, because there is no authoritative force outside of itself to prevent such change. In any geographical monopoly power situation, there is essentially no method to prevent the continuously increasing reduction of liberty by the monopoly power until it reaches a level which the monopoly power deems optimal to support its own self-interest. Furthermore, when such monopoly power is continually subject to change (eg. by having limited terms and being democratically elected) the level of liberty can become very low indeed, since those in power will be seeking to satisfy their self-interest with little concern for the long-term effects.

All this has been done knowingly by judges and their academic enablers who think they can improve upon the original Constitution and substitute for it one that is superior. This begs the question: Why care what the Constitution actually says, as opposed to what we might prefer it to say (or not say)? Whatever may be in their hearts, many constitutional scholars write as though we are not bound by the actual words of the Constitution because those words are obstacles to noble objectives. One way to slip these bonds is to imply that the original Constitution is illegitimate by repeating the refrain that we cannot be bound by the "dead hand of the past" or by constantly invoking the various sins of the framers. By delegitimizing the original Constitution, such rhetoric seeks to free us from its constraints. Yet it is both curious and significant that few come out and admit this. Why this avoidance? Why not frank confession?

5) Since I did not voluntarily agree to it, I hereby "frankly confess" and sincerely state that I will not be bound by anything to which any ancestor of mine or anyone else has agreed (excepting the covenants on property which I own, since I did voluntarily agree when I accepted that ownership).

Perhaps because those who practice and advocate judicial amendment of the Constitution seek the obedience of the faithful and, were their delegitimation entirely successful, why would anyone obey the commands of a mere judge, much less a law professor, a philosopher, or a political scientist? Why obey the commands of the man or woman in a black robe, apart from the fact that disobedience is likely to land you behind bars in an extremely treacherous environment?

To openly challenge the legitimacy of the Constitution--held sacred and regarded as authoritative by so much of the public--would be to admit that there is no "man behind the curtain." Instead, by subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a judge or even a clever constitutional scholar can become the man behind the curtain. Pay no attention to that figure in the black robe or to that bookish professor; the great and powerful Constitution has spoken!

This is a fraud on the public. Imply but do not say aloud that the Constitution is illegitimate so we need not follow what it actually says. Remake it--or "interpret" it--as one wills and then, because it is The Constitution we are expounding, the loyal but unsophisticated citizenry will follow. This strategy also allows one to adopt a stance of moral superiority toward past generations without having to assume the responsibility of proclaiming that the document they wrote and by which the government rules is of no authority.

6) There is no question that Barnett is both insightful and correct in this suggestion that those directing the state must continue to maintain the sanctioning authority of the Constitution while at the same time undercutting its ability to limit their state sanctioned power. However, this trend cannot be stopped and reversed by trying to legitimize a document which was clearly not legitimate then (and is also not now) because it was not (and is not) agreed to by every person within its geographical area of application. There is no question that the original constitution was a major advance from the social order extant prior to the Revolutionary War. There is no question that early after its enactment the United States was a country in which allowed acts of citizens were a much higher percentage of all possible acts than now. However the Constitution never was and never could be a legitimate contract, unless it had been executed by every adult in the United States at that time and by every adult upon coming of age in, or immigrating into the United States since that time.1

Because it is constantly under siege, the Constitution's legitimacy cannot be taken for granted. Unless we openly confront the question of its legitimacy, we cannot respond to those who would replace it with something they think is better. We will never know whether we should obey it, improve upon it, or ignore it altogether. In this book, I begin by asking and answering the question that others shy away from: Why should anyone obey the commands issued by persons who claim to be authorized by the Constitution?

7) If the Constitution can be replaced with something which is clearly better because it has unanimous consent and implements a form of justice which is derived directly from human biological nature, then there is no need for any defense of the current Constitution and therefore no need to attempt to legitimize it.

I explain why the most commonly held view of constitutional legitimacy--the "consent of the governed"--is wrong because it is a standard that no constitution can meet. Holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. This result is paradoxical because, notwithstanding the great expansion of suffrage, any new and improved "interpretation" of the Constitution will also fail to be legitimated by the "consent of the governed." And this fiction turns dangerous when factions purporting to speak for "the People" claim the power to restrict the liberties of all.

8) In RLC Chapter 1, Barnett does a masterful job of refuting all claims of "consent of the governed" and with it all claims of legitimacy for "democracy". However, although unanimous consent for the Constitution is an "unattainable ideal" (mainly because of its necessity for authority over an entire already populated geographical area), this is not true with all rule systems which might replace the Constitutional purpose of forming an ordered society.

Equally untenable is the principal alternative to the "consent of the governed": the argument that the benefits received by citizens from a constitutional order and a duty of fair play obligate them, in return, to obey laws regardless of whether they consent to them. By dispensing with any need for obtaining even the fictional consent of the governed, this alternative turns out to be even more dangerous to liberty. We can do much better.

9) This is amplified in RLC pp. 25-29 where Barnett demolishes all claims that people have any duty and/or obligation to obey laws because of the unsolicited and unconsented benefits they are given by those laws. However once again, this would not be the case for a rule system to which all those directly governed by it had given written consent.

I contend that lawmaking by real unanimous consent is both possible and pervasive, although not in the sort of polity governed by present-day constitutions. Even in the absence of such consent, however, laws can still bind in conscience if the constitution that governs their making, application, and enforcement contains adequate procedures to assure that restrictions imposed on nonconsenting persons are just (or not unjust).

10) Here Barnett begins by agreeing that "real unanimous consent" is possible in some kinds of polity (as I contend), but for some reason he is determined to legitimize the Constitution of the current polity where unanimous consent is not possible, rather than designing a replacement for that Constitution which will alter the current polity to one in which unanimous consent is possible2 Barnett's valiant effort to devise a method to legitimize the Constitution takes up most of RLC Chap 2. However, the flaw in his reasoning is that "procedures to assure that restrictions imposed on nonconsenting persons are just (or not unjust)" are not universally possible for non-consenting persons (and, under most systems, not usually available for prior consenting persons either), because what is "just or non unjust" is not and never can be objectified (ie. made the same for all). While the determination of the fact of culpability of any given act can be objectified, the evaluation of the harm caused by such an act (and therefore of the "justice" of any responsibility requirements for it) is the inalienable prerogative of each individual - an evaluation which can never be correctly determined by one person for another. What is just for any given person can only be decided by the inalienable subjective evaluating processes of that individual himself.3 Therefore, if any social order is to promote true justice (ie. justice as derived from the reality of human biological nature), what must be sought and found are individual incentives and disincentives within that social order which will prevent abuses of the inalienable prerogative of each human to determine the value of any culpable harm done to himself by any other human(s), and thus, the restitution which is owed by such violating human(s).

Such a constitutional order can be legitimate even if it was not consented to by everyone; and a constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority.

11) I strongly agree that no social order can be legitimate unless it contains "adequate procedures to ensure the justice of valid laws". However, since an individual-A's computation of the value of any harm done to him is not discernible by any individual-B unless and until individual-A communicates it to individual-B, there is no manner in which any objective determination (ie. a determination separate from and prior to such subjective evaluation by the harmed individual) of the value of any harm can be achieved. Moreover, even when an individual has previously executed consent to be adjudicated by such an external determination, justice is still lacking since he has, in effect, violated his own inalienable nature (of being the only person fully capable of such determination). Furthermore, when an external determination of harm done is greater than the value which the victim himself would have made, there is still injustice both to the violator(s) who are now responsible for restitution, and for the victim himself since he ends up with a higher level of value than he "deserves" (ie. than what he has produced). From this analysis it should be clear that objective law can never be just precisely because it can never ensure that any harm done to an individual is correctly restituted according to the reality of the situation. This is why the question of whether any such legal determination can be just, and even the entire legitimacy of any legal system underlying that determination, will always be in dispute. Indeed, such "adequate procedures to ensure the justice of valid laws" will still be lacking even for a constitution which has unanimous consent, unless those procedures include a method to determine the individual subjective evaluation of harm done in every case of violation of its laws.

Indeed, only by realizing that the "consent of the governed" is a fiction can one appreciate the imperative that lawmakers respect whatever may be the requirements of justice.

12) As I have already pointed out, "the imperative that lawmakers respect whatever may be the requirements of justice" is not dependent on "the consent of the governed" being a fiction. It would be just as true for the Constitution even if it had real and actual unanimous consent, because that document does not recognize the justice requirements inherent in the inalienable biological nature of humans.

Although my thesis concerning legitimacy does depend on the claim that "justice" is independent of whatever may happen to be commanded by positive law, it does not depend on acceptance of any particular conception of justice. Regardless of what conception of justice one holds, constitutional legitimacy can be seen as a product of procedural assurances that legal commands are not unjust. Even those who reject the view of justice held by the founders, and which I have defended elsewhere, can accept this conception of constitutional legitimacy provided they also accept the proposition that justice is independent of legality.

13) I fully agree that "justice is independent of legality", but, as I have shown, unless legality fully accounts for individual differences in evaluation, it can never be just. Barnett undermines his purpose for RLC when he maintains that his legitimization of the Constitution "does not depend on acceptance of any particular conception of justice", which appears to tolerate arbitrary notions of justice. Although in Chapter 3 Barnett does "defend a liberal conception of justice based in certain individual natural rights" which is a summary of a longer treatment in his book, The Structure of Liberty: Justice and the Rule of Law, Oxford University Clarendon Press (1998), he maintains that such a conception is not mandatory - only that the rights themselves are acceptable, for whatever reasons. Unfortunately, since rights per se are not a sufficient basis for any definition and implementation of valid justice (ie. a definition of justice which is consistent with the inalienable biological nature of humans), Barnett's reliance on them necessarily results in the failure of his program to legitimize the Constitution as laid out in RLC.

That is, that laws are not just solely because they are validly enacted.

14) Any strong arguments to support this statement are certainly to be welcomed.

To assess the legitimacy of any given legal system, however--including the system governed by the Constitution of the United States--requires both this procedural conception of legitimacy and a theory of justice by which to assess the adequacy of lawmaking procedures it employs. In short, while readers need not agree with the founders' or my conception of justice based on "natural rights" to accept the procedural conception of constitutional legitimacy I shall advance, they must produce and defend a conception of justice before they can pass judgment on the legitimacy of the Constitution. So must I.

15) I fully agree with this. However, my own conception of justice3 is such that using it to "pass judgment on the legitimacy of the Constitution" results in a finding that the entire US Constitution and all the laws promulgated from it are unjust and therefore illegitimate.

To that end I will explain the founders' view that "first come rights, and then comes the Constitution." The rights that precede the formation of government they called "natural rights." I contend that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone;

16) Barnett's argument depends entirely on the existence of "natural rights" as a self-consistent set of constructs from reality which form a sufficient basis for a theory of justice. Both the consistency of natural rights and the assumption that they are a consistent basis for a theory of justice has been strongly questioned by David Friedman4 and repudiated by my own additional arguments.3,5 Moreover, I see no way that it can be consistently argued that my right to liberty and restitution for damages effectively caused by another (which damages can only be evaluated by me) is protected by a system to which I have not consented beforehand, and about the judgments of which concerning me, I do not agree.

and one that lacks adequate procedures to protect natural rights is illegitimate even if it was consented to by a majority.

17) From an inalienable rights point of view I contend that this should take the stronger form: "even if it was unanimously consented to". Of course, since I repudiate the concept of natural rights3,5, I do not agree with either form of the statement.

The natural rights to which they and I refer are the "liberty rights" that, given the nature of human beings and the world in which we live, make it possible for each person to pursue happiness while living in close proximity to others and for civil societies to achieve peace and prosperity.

18) Just because concepts such as "liberty rights" have helped bring society closer than before to harmonious intercourse does not imply that such rights are either mutually consistent or that there are not better ways to more optimally and completely accomplish similar goals. The fact that natural rights have not effected the achievement of such an ordered society over 300 years since their full blown conception by John Locke suggests that they have fundamental deficiencies.

It is precisely because the consent of the governed is impossible on a national scale

19) I do not understand why Barnett keeps dismissing this possibility out of hand. If it were first decided what different privilege and entitlements would be assigned to those who signed the Constitution (or any such governing document) from those who did not and the rules of interface between the two "statuses" of individuals,2 then every adult residing within the geographical boundaries of the US or temporarily out of them, could be asked to actually sign or not to sign that document. Those who signed would then most certainly be consenting to its governing methods.

that a constitution must provide protection for the preexisting rights retained by the people if the laws it sanctions are to create a duty of obedience in a nonconsenting public.

20) This seems to be logically invalid. Any portion of "the public" is merely a set of independent individuals, and "a duty of obedience" can only be created by an individual for himself when and only when he understands that such obedience will optimally enable him to maximize his lifetime happiness. There is physically no other way that a duty of obedience can be created in any individual short of drug-induced brain-washing. As a nonconsenting individual, all that I need to do to void such a duty on me presumed by anyone else is to say, "I don't consent and I don't have any duty to consent".

With this analysis of constitutional legitimacy and natural rights, we will then be in a position to understand why the words of the Constitution should be interpreted according to their original meaning and, where this meaning is incomplete or vague, how the inevitable gaps in meaning ought to be filled. Although I do not believe we are bound by the dead hand of the past, I will explain how, by committing ourselves to a written constitution, we commit ourselves to adhere to the original meaning of the text and any later amendments.

21) This raises the fundamental question: How does Barnett suggest that those who do not accept his theory of justice (and who may even have their own theory of justice which does not validate the adequacy of the original Constitution, as I do3) are required to commit to the legitimacy of the US Constitution in its original meaning or any other? Throughout his book (RLC) Barnett appears to think that no theory which does not have rights within it (on whatever basis) can possibly be a "theory of justice". But there are many religions and cultures (eg. Islam) which certainly have a theory of justice, but not one which is based on rights.

In addition, original meaning must be respected so that those who are to govern by laws have little or no hand in making the laws by which they govern.

22) Best of all would be to have none at all who "are to govern" anyone except each himself.

We will also see that, where the original meaning is incomplete or vague, the text must be "construed," as opposed to "interpreted," in a way that enhances its legitimacy without contradicting the meaning that does exist.

23) I certainly agree with this method of reading the text of contractual documents, but I reject that this has any relevancy to the legitimacy of the US Constitution.

It will then be time to examine the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce and the Necessary and Proper Clauses in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. We will also need to examine the nature and scope of the so-called police power of states--a power that appears nowhere in the text of the Constitution and results from construction rather than interpretation.

Finally, I shall show how, when the meaning of these missing provisions is correctly understood, we can choose properly between two opposing constructions of the powers the Constitution delegates to government officials: Are all restrictions on the liberties of the people to be presumed constitutional unless an individual can convince a hierarchy of judges that the liberty is somehow "fundamental"? Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper?

24) I really don't see that this will help much, since "necessary and proper" can be construed by judges to have almost any meaning because no definition of the meaning of these words were given within the Constitution or its Amendments (see the example noted in comment 1)). If a legal document contains any words which must be interpreted, it will always be open to distortion of the intent of its creators. For a document whose purpose is to safeguard the liberty and property rights of individuals, this will allow the courts to permit government violation of precisely those rights and will effectively make the legal system into a government of men rather than one of objective law. How would this stop, say, the Patriot Act, since most judges probably consider its restrictions to be highly "necessary and proper" for the times?

The first of these is called "the presumption of constitutionality." While this construction has never been accepted in its entirety, the exceptions that have been created to it are revealing in the way they run afoul of the text. The second of these constructions may be called the Presumption of Liberty, which can provide a practical way to restore the lost Constitution.

25) I cannot imagine that such a replacement provides any practical method to restore the original meaning of the Constitution (in the sense of providing the courts with incentives for such changes). Furthermore, as I argued earlier in this critique, what good would that do anyway except as only a temporary restoration of many lost liberties, for it would not change the fundamental ideas which propel the current polity towards a constant reduction of individual liberty.

It is an open question whether the U.S. Constitution--either as written or as actually applied--is in fact legitimate. Intellectual honesty requires us to acknowledge the possibility that no constitution lacking unanimous consent is capable of producing laws that bind in conscience.

26) Yes. And one can't have a constitution which is both legitimate and not binding in conscience at the same time. Furthermore, as I have pointed out here and detailed elsewhere3 neither of these assures true justice anyway.

Therefore, while the theory of constitutional legitimacy, the conception of natural rights, the method of constitutional interpretation, the interpretations of key clauses, and the Presumption of Liberty I advance here all raise serious questions--is there any constitutional theory that does not?--readers should think long and hard before rejecting them.

27) Having thought very long and very hard, off and on for over 40 years (including the majority of my waking hours since January 2003), I do reject the first two which makes the next two irrelevant. I certainly accept the "Presumption of Liberty" and it is fully embedded in my system.2,3

For the alternative may be to admit that, when judges pronounce constitutional law, there really is no one behind the curtain and their commands are utterly devoid of binding authority.

28) Unfortunately that is all too true based on both the current interpretations of the Constitution and those which Barnett espouses. That such rulings are devoid of all "binding authority" is precisely why an entirely different approach must be taken to find a just and stable social order. Hopefully, Barnett is still fully open to that possibility.

We need not, I submit, reach this conclusion. The lost Constitution has not, after all, been repealed. It remains before our eyes and its restoration within our grasp. Once it is remembered in its entirety, the case for a constitutional Presumption of Liberty becomes compelling. But to restore, we must first remember.

29) What Barnett has produced in Restoring the Lost Constitution: The Presumption of Liberty is essentially an addendum and continuation of the Federalist Papers. It is a sorely needed reminder of the reasons for and the correct operation of the US Constitution which may serve to help US society retrieve some of its lost liberties, at least temporarily. However, it falls short of an adequate solution to the more fundamental problem of providing a social order with maximum possible liberty which will allow the generation of maximum possible lifetime happiness for each individual and which has the built in incentives and disincentives required to remain stable indefinitely into the future.

Footnotes and References:

1. I specifically reject Barnett's acceptance of the "bootstrapping objections" to the contractarian formation of a social order (RLC pp. 17-19), since it is entirely possible to formulate rules of social order which apply differently to those who have executed a social contract and those who have not. Furthermore, it is even possible to have mutually acceptable but somewhat different social contracts which different groups of members of society have executed. See the "Natural Social Contract" for an example of how these can be implemented.

2. For an example of a social contract which accomplishes this goal, see the "Natural Social Contract"

3. For full details see: "Social Meta-Needs: A New Basis for Optimal Interaction"

4. See particularly Chapter 41 of The Machinery of Freedom: Guide to a Radical Capitalism

5. See Critique of "The Imperative of Natural Rights in Today's World"