Rediscovering the US Constitution

Tibor R. Machan

Professor Randy Barnett’s new book, Restoring the Lost Constitution, The Presumption of Liberty (Princeton University Press, 2004), is excellent and a vital contribution to jurisprudence. It argues, in essence, that the best way to read the US Constitution is as a libertarian legal document, one that presupposes the existence of natural rights and assigns to government the task of their protection, period. Barnett makes out this thesis in a very readable yet completely scholarly fashion, as well as in a tone that is wonderfully civil.

Barnett’s treatment of the relationship between inalienable (or unalienable) and natural rights is, however, somewhat odd and worth considering even if only very briefly. He suggests that whether we are talking about natural or inalienable rights concerns levels of generality. In other words, whereas inalienable rights are taken by Barnett to be the most universal, abstract principles of proper social organization (as per the Declaration of Independence’s reference to them) as well as what constitutions should be based upon ultimately, natural rights are the particular rights inalienable rights imply for everyday living, such as the right to read or turn out one’s nightlight or wear black if that is what one wants to do. And these particular rights, Barnett argues, can be alienated, as when one joins a gated housing community and submits to rules and regulations which disallow one to paint one’s home as one might wish.

Barnett may be making a small but significant mistake about rights theory here. “Natural rights” refers to the fact that some rights are ours because of our human nature – it is thus a qualifier about the source of rights to call them "natural" (and in this it is akin to natural right, a topic Barnett broaches very briefly, a la Leo Strauss & Co., where they are talking about something being right because of human nature; same with natural law, which means something being a law in virtue of human nature).

In contrast, in-(or un-)alienability has to do with the fact that the rights we have (because of our nature) cannot be lost, forfeited, taken away, or otherwise estranged from us unless our nature changes or is lost (i.e., if we were to lose our humanity somehow, as when we become brain dead).

So, it seems to follow that joining a gated community where we need to agree to accept various rules does not involve losing our natural rights. We remain human in all such cases, ergo those rights are still ours. We do however agree not to exercise certain rights – like painting our homes the color we alone choose – but this itself is the result of our having exercised the right to agree to certain terms of association with others, not of the loss or giving up of any rights. Similarly, we have the right to property and this implies to our car but we can sell the car without losing our right to property. We sell the car, not our right to it, and this we can do because we do have the right to sell it.

Barnett’s discussion of consent is also very provocative. He basically dismisses the idea of everyone’s needing to explicitly consent to the constitution, as per the critique of one of his heroes, Lysander Spooner. He holds, instead, that given a certain content of the constitution – such as basic liberty principles that will need to be protected – such universal consent, which at any rate is impossible and would render constitutional law illegitimate from the get go, needs to be given up. Despite this, a liberty based constitution can be fully legitimate, valid, binding on all within its jurisdiction, because no one needs another’s consent to be defended from that other’s aggression or rights violations.

My own account of this – in my paper "Individualism & the Problem of Political Authority,” The Monist, Vol. 66 (1983), pp. 500-516 (now part of Individuals and Their Rights [1989]) – relies on implicit consent theory. That is, by interacting with others who have rights, we implicitly consent to their defending themselves if we attack them, including via a proper liberty based constitution. Thus consent of the governed, while impossible to secure explicitly, can be secured implicitly. (Consider, for example, how a restaurant owner who places ashtrays on tables implicitly but rarely explicitly consents to our smoking there, or how, when you are invited to dinner, implicit in this is the consent to your using the bathroom.)

These are small differences within libertarian theories, perhaps not very consequential and reflective, mainly, of how we all stand up for liberty in slightly different, even idiosyncratic ways.

It is, in any case, extremely gratifying to see Barnett’s – shall we call it revisionist – treatment of the US Constitution (at least its basic form and content, though by no means every one of its provisions) as a liberty-preserving legal instrument. The full resurrection of the Ninth Amendment in the book might make up for decades of neglect of that most important constitutional instrument.