By J.H. Huebert
Ludwig von Mises Institute
November 27, 2005


Review of Restoring the Lost Constitution: The Presumption
of Liberty, by Randy E. Barnett (Princeton University Press, 2004).

Randy Barnett is among the world's leading libertarian
academics and lawyers, perhaps second only to Richard Epstein
in influence. In fact, Mr. Barnett has defended
anarcho-capitalism in the Journal of Libertarian Studies,[1]
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 US Constitution establishes libertarianism
throughout the land by both limiting the federal government's
powers and empowering the federal government to restrain the states.

Though 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.

The Governed Do Not Consent

The 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.[2] 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 "consent."

He 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.

Mr. 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."

Mr. 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 US Congress could simply waive your
rights for you. After all, they are your "duly elected representatives."

Finally, 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.[3]

Otherwise, even the most oppressive regime would be legitimate.

A Legitimate State?

Despite 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.

Why 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
Constitution. To 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 of government."

But 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?

Mr. 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. Proceeding on this theory of
legitimacy, Mr. Barnett argues that the US Constitution,
rightly understood, establishes a legitimate government,
because it protects natural (libertarian) rights.

Limited Federal Government

Despite 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.

Mr. 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.[4]

If 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.[5]

Mr. 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.

Mr. 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)

But 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.

Thus, 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" is impossible.

Of course, if Mr. Barnett and like-minded libertarians can
persuade the federal government that it lacks the power to do
certain things, that is to be applauded.[6] 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.

Federal Power Over the States

Mr. 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. An 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,[7] 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 fruited plain.

Even 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,[8] but what will be done with that power once it is
inevitably back in the hands of the statists?[9] 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.

Liberty without compromise.
The Complete Rothbard: $394

And 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 US 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 US empire installs anywhere in the world — just
give them the right constitution (perhaps the Cato pocket
edition), and voilà.

Conclusion

Restoring 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.

J.H. Huebert is an attorney and an adjunct faculty member of
the Ludwig von Mises Institute. Send him mail.

Bibliography

Barnett, 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."
Valpariso Law Review 26 (419).
——. 1977. "Whither Anarchy: Has Robert Nozick Justified the
State?" Journal of Libertarian Studies 1 (Winter): 15.
Epstein, Richard A. 1987. "The Proper Scope of the Commerce
Power." Virginia Law Review 73 (1387).
Greenhouse, Linda. 2004. "States' Rights Defense Falters in
Medical Marijuana Case." New York Times (November 30): A-20.
Healy, Gene. "The 14th Amendment and the Perils of Libertarian
Centralism," online at
http://www.mises.org/journals/scholar/Healy6.PDF.
McDonald, Forrest. 2000. States' Rights and the Union:
Imperium in Imperio, 1776-1876. Lawrence: University Press of
Kansas.
Mises, Ludwig von Mises. [1927] 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.
Spooner, Lysander. [1860] 1971. The Unconstitutionality of
Slavery, rev. ed., reprinted in Charles Shivley, ed., The
Collected Works of Lysander Spooner. Providence: M and S
Press. Online at
http://www.lysanderspooner.org/UnconstitutionalityOfSlaveryContents.htm.
Endnotes
1. Barnett, Randy E., "Whither anarchy? Has Robert Nozick
justified the state?" Journal of Libertarian Studies, Vol. 1
Num. 1. (Download article in PDF.)
2. Mr. Barnett has made this and other Spooner works available
at www.LysanderSpooner.org.
3. Compare Mises (2002, p. 46): "Only a group that can count
on the consent of the governed can establish a lasting regime."
4. See also Barnett (1977).
5. 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).
6. Barnett 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).
7. In this 2003 decision, the US Supreme Court held that the
Fourteenth Amendment bars states from prohibiting sodomy. 539
US 558.
8. 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.
9. On this, and the Fourteenth Amendment generally, see
Healy's outstanding critique of "libertarian centralism,"
including the ideas of Randy Barnett, Roger Pilon, and Clint
Bolick.