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Barnett's New View

February 28, 2004

From Eric Knauer: In the preface of Randy Barnett's new book, Restoring the Lost Constitution, he states:

"In his best-known work, No Treason, Lysander Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it was imposed. Although as an undergraduate, I found Spooner's argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical... My answer to Spooner's challenge in found in part I of this book." In part I he writes,"For a law is just, and therefore binding in conscience, if its restrictions are 1) necessary to protect the rights of others and 2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.

"The second of these requirements dispense with the need to obtain the consent of the person on whom the law is imposed. After all, if the law has not violated a person's rights, then that person need not consent to it. The first requirement supplies the element of obligation. If the law is necessary to protect the rights of others, then it is as obligatory for the person on whom it is imposed as protecting that person's rights is obligatory on the legal system itself. Persons have an obligation to obey such a law just as they have an obligation to respect the rights of others. While the protection of rights is not the only function performed by a government, it is the only function that -on this account of legitimacy- justifies restricting personal freedom in the absence of the actual consent of the individual...

"Therefore, when we move outside a community constituted by unanimous consent, every freedom-restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted. In the absence of actual consent, a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just in this respect. If a lawmaking process provides these assurances, then it is 'legitimate' and the command it issues are entitled to the benefit of the doubt. They are binding in conscience unless shown to be unjust...

"On this account, there are not one but two sources of binding law: laws that are produced by unanimous consent regimes, and laws that are produced by regimes whose legitimacy rests solely on their procedural assurances that the rights of the nonconsenting persons on whom they are imposed have been protected."

This passage seems to suggest a dramatic change in political philosophy compared to Barnett's old writings where he equates nonconsensual government jurisdiction with aggression (Rothbard quotes Barnett in The Ethics of Liberty on this point). Does anyone find his new position compelling?

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