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.
Monday, February 23, 2004
The rule of law –
In classical liberalism & libertarianism
Tibor R. Machan
Classical liberals and libertarians, especially those who admire the works of the famous legal theorists and economist F. A. Hayek, are fond of pointing out that a free society requires the rule of law. Others, critical of this political tradition, note, however, that laws rule most societies, many of them quite tyrannical, so the rule of law has no bearing on a society’s being free.
What might be the source of the close relationship alleged between free societies and the rule of law is that the only laws that can be applied uniformly and universally in society are the very few that aim to keep us free. Other so called laws are really just edicts from rulers, not bona fide laws, since they apply selectively, not equally to us all.
This goes back, in part, to natural law theory which is itself related to the role of laws in the natural world. Laws regulate everything of a certain kind, not just some such things. The laws of motion apply to all things movable; the laws of photosynthesis to all things that can undergo that organic chemical process. And so on and so forth.
The difference is that with natural laws as applied to human beings, laws do not automatically apply but serve as guidelines to choose successful actions and institutions. That is because we humans possess free will and can attempt to circumvent the laws that we ought to follow so as to succeed, live right as human beings. But otherwise these are still laws, only moral, ethical or political laws, not biological, chemical or physiological ones.
Apart from this aspect of laws that guide human conduct, namely, that they regulate voluntary action, such laws, too, need to be universal, applicable to all humans. Only those qualify as bona fide laws that apply universally, to all humans, not just to some based on certain peculiarities of the law maker(s) or those intended to be ruled by the edict(s).
But there are very few laws that really apply to us all – they are the ones mainly concerned with protecting our basic rights. The rule of law is then evident where very few such laws are upheld, where government is, therefore, limited to upholding them. That is what connects the rule of law so closely with the free society.
For example, no one ought to murder, rob, kidnap, or assault another person. These are universal principles of human conduct. They are, to use Kant’s terminology, categorically true for guiding human interaction, anytime, anywhere. However, that seatbelts ought to be worn is not universally true – there can be plenty of circumstances in which that is false. Or again that 40% of one’s earnings ought to be paid to the legal authorities – that, too, lacks universality by a long shot, if it is ever true at all.
So, when such edicts are made into laws, despite the appearance that’s based on pomp and circumstance – being “signed into law,” “entered into law books,” etc. – they fail to amount to bona fide laws. They are bogus laws and will be widely resisted by those who realize this, know that the edicts do not apply to them. These edicts will, thus, violate the principle of the rule of law.
As a result of the proliferation of pseudo laws, all bona fide laws, those that really ought to be obeyed by everyone, tend to lose their credibility. When the legal order treats drug or alcohol prohibition, or affirmative action mandates, along lines it treats the prohibition against murder and rape -- when it equivocates between these two categories of edicts by calling both of them laws -- it is natural for people to begin to see them both as merely conventional, just something those in power happen to wish to prohibit or mandate, not as something that ought to be obeyed.
One virtue of the classical liberal, libertarian idea of law is that it preserves the coherent, even reverent meaning of the concept “law” and does not water it down, thereby weakening its reputation and undermining its binding force.
In classical liberalism & libertarianism
Tibor R. Machan
Classical liberals and libertarians, especially those who admire the works of the famous legal theorists and economist F. A. Hayek, are fond of pointing out that a free society requires the rule of law. Others, critical of this political tradition, note, however, that laws rule most societies, many of them quite tyrannical, so the rule of law has no bearing on a society’s being free.
What might be the source of the close relationship alleged between free societies and the rule of law is that the only laws that can be applied uniformly and universally in society are the very few that aim to keep us free. Other so called laws are really just edicts from rulers, not bona fide laws, since they apply selectively, not equally to us all.
This goes back, in part, to natural law theory which is itself related to the role of laws in the natural world. Laws regulate everything of a certain kind, not just some such things. The laws of motion apply to all things movable; the laws of photosynthesis to all things that can undergo that organic chemical process. And so on and so forth.
The difference is that with natural laws as applied to human beings, laws do not automatically apply but serve as guidelines to choose successful actions and institutions. That is because we humans possess free will and can attempt to circumvent the laws that we ought to follow so as to succeed, live right as human beings. But otherwise these are still laws, only moral, ethical or political laws, not biological, chemical or physiological ones.
Apart from this aspect of laws that guide human conduct, namely, that they regulate voluntary action, such laws, too, need to be universal, applicable to all humans. Only those qualify as bona fide laws that apply universally, to all humans, not just to some based on certain peculiarities of the law maker(s) or those intended to be ruled by the edict(s).
But there are very few laws that really apply to us all – they are the ones mainly concerned with protecting our basic rights. The rule of law is then evident where very few such laws are upheld, where government is, therefore, limited to upholding them. That is what connects the rule of law so closely with the free society.
For example, no one ought to murder, rob, kidnap, or assault another person. These are universal principles of human conduct. They are, to use Kant’s terminology, categorically true for guiding human interaction, anytime, anywhere. However, that seatbelts ought to be worn is not universally true – there can be plenty of circumstances in which that is false. Or again that 40% of one’s earnings ought to be paid to the legal authorities – that, too, lacks universality by a long shot, if it is ever true at all.
So, when such edicts are made into laws, despite the appearance that’s based on pomp and circumstance – being “signed into law,” “entered into law books,” etc. – they fail to amount to bona fide laws. They are bogus laws and will be widely resisted by those who realize this, know that the edicts do not apply to them. These edicts will, thus, violate the principle of the rule of law.
As a result of the proliferation of pseudo laws, all bona fide laws, those that really ought to be obeyed by everyone, tend to lose their credibility. When the legal order treats drug or alcohol prohibition, or affirmative action mandates, along lines it treats the prohibition against murder and rape -- when it equivocates between these two categories of edicts by calling both of them laws -- it is natural for people to begin to see them both as merely conventional, just something those in power happen to wish to prohibit or mandate, not as something that ought to be obeyed.
One virtue of the classical liberal, libertarian idea of law is that it preserves the coherent, even reverent meaning of the concept “law” and does not water it down, thereby weakening its reputation and undermining its binding force.
“But Americans Aren’t Getting the New Jobs”
Tibor R. Machan
For me the hate filled outcry that jobs are leaving the country – however convoluted that concept really is – has always called to mind the fact that many who voice it are also supposed to be humanitarians. I have in mind the likes of Ralph Nader and Dick Gephardt, champions of the downtrodden, enemies of big corporations, you name it. Those on the Left, at least, who worry about jobs are ideologically committed to liberating the workers of the world, not the workers of Detroit or Fresno, USA.
And, indeed, if one is concerned about lack of jobs, it makes little sense to decry that condition only for Americans. Why are Americans so special that they, but people around the globe do not, deserve jobs?
Fact is, the more jobs that get to be exported, the better off the world is becoming, which also means fewer people will wish to come here to find jobs, which has been the routine for about two centuries and which has upset some folks, mostly with the same mindset as the ones who fret about the loss of jobs. Too many immigrants are flooding our shores! Too many aliens are coming here! So, OK, if you don’t like this, making work available abroad should delight you.
There is also something economically amiss with thinking of the creation of jobs abroad as some kind of zero-sum game – as if the folks abroad never bought anything that is made by the folks here. We know that the bulk of the world goes to American movies, for example, buys music made by Americans, buys American made or assembled cars, etc., and so forth.
In fact the very idea of lining up all the American made stuff on one side and the foreign made stuff on the other has become impossible because nearly everything is composed of a bunch of parts that are made all over the place, with no way to tell anymore where and who made them. It is difficult to imagine people going to Wal-Mart or Macys or any other shop to pick up socks, TVs, PCs, shirts, blouses or gloves and making sure that these were made at home.
And if they were made “at home,” suppose they were made in another state – would the customers then be traitors to their own states, counties or cities for buying the stuff not made where they live? Oh, my God, what nonsense!
If there is a sphere of human life that’s in principle truly without borders, it’s commerce. And that has been true of not just centuries but over nearly all of human history. Commerce has, indeed, been mostly responsible for much of the peaceful exploration of the globe, for seeking out new regions where to buy and sell stuff. Very different from conquest!
Even just the thought of trying to restrict the benefits of commerce to any area of it whatsoever galls, since no one can tell what exactly would need to be done – the only wasteful job-creation that would entail is more police and military who would engage in an utterly futile, hopeless effort to keep jobs local.
Often I am eager to seek out the line of reasoning that might have led folks to reach conclusions other than those I reach about things, because I might, miracle of miracles, be wrong and, in any case, I do like to learn of honest differences in viewpoints. But this line of thinking – America first in jobs – disgusts me to no end, considering, especially, that this country perhaps more than any other is filled with people who or whose ancestors were anything but Americans not all that long ago. I find it difficult to fathom, in any kind of dispassionate, charitable way, that thoughtful Americans could think along such lines, begrudging foreigners their chance at a decent life. This kind of “If they get a job, we must lose a job” thinking is so Neanderthal, so out to lunch, especially in this era of modern economic theory – starting not even with Adam Smith but with many before him who knew well and good that in trade all the parties involved are winners – that my little hope that the world might advance a step or two toward reason and peace and justice is nearly shattered and I am very tempted to turn into a misanthrope. Problem with that is that what such absence of reason, peace and justice hurts most is millions and millions of human beings, the very ones who often do such thick headed non-thinking.
Alas, I suppose one needs to just push on and rebuff this stuff day in and out.
Tibor R. Machan
For me the hate filled outcry that jobs are leaving the country – however convoluted that concept really is – has always called to mind the fact that many who voice it are also supposed to be humanitarians. I have in mind the likes of Ralph Nader and Dick Gephardt, champions of the downtrodden, enemies of big corporations, you name it. Those on the Left, at least, who worry about jobs are ideologically committed to liberating the workers of the world, not the workers of Detroit or Fresno, USA.
And, indeed, if one is concerned about lack of jobs, it makes little sense to decry that condition only for Americans. Why are Americans so special that they, but people around the globe do not, deserve jobs?
Fact is, the more jobs that get to be exported, the better off the world is becoming, which also means fewer people will wish to come here to find jobs, which has been the routine for about two centuries and which has upset some folks, mostly with the same mindset as the ones who fret about the loss of jobs. Too many immigrants are flooding our shores! Too many aliens are coming here! So, OK, if you don’t like this, making work available abroad should delight you.
There is also something economically amiss with thinking of the creation of jobs abroad as some kind of zero-sum game – as if the folks abroad never bought anything that is made by the folks here. We know that the bulk of the world goes to American movies, for example, buys music made by Americans, buys American made or assembled cars, etc., and so forth.
In fact the very idea of lining up all the American made stuff on one side and the foreign made stuff on the other has become impossible because nearly everything is composed of a bunch of parts that are made all over the place, with no way to tell anymore where and who made them. It is difficult to imagine people going to Wal-Mart or Macys or any other shop to pick up socks, TVs, PCs, shirts, blouses or gloves and making sure that these were made at home.
And if they were made “at home,” suppose they were made in another state – would the customers then be traitors to their own states, counties or cities for buying the stuff not made where they live? Oh, my God, what nonsense!
If there is a sphere of human life that’s in principle truly without borders, it’s commerce. And that has been true of not just centuries but over nearly all of human history. Commerce has, indeed, been mostly responsible for much of the peaceful exploration of the globe, for seeking out new regions where to buy and sell stuff. Very different from conquest!
Even just the thought of trying to restrict the benefits of commerce to any area of it whatsoever galls, since no one can tell what exactly would need to be done – the only wasteful job-creation that would entail is more police and military who would engage in an utterly futile, hopeless effort to keep jobs local.
Often I am eager to seek out the line of reasoning that might have led folks to reach conclusions other than those I reach about things, because I might, miracle of miracles, be wrong and, in any case, I do like to learn of honest differences in viewpoints. But this line of thinking – America first in jobs – disgusts me to no end, considering, especially, that this country perhaps more than any other is filled with people who or whose ancestors were anything but Americans not all that long ago. I find it difficult to fathom, in any kind of dispassionate, charitable way, that thoughtful Americans could think along such lines, begrudging foreigners their chance at a decent life. This kind of “If they get a job, we must lose a job” thinking is so Neanderthal, so out to lunch, especially in this era of modern economic theory – starting not even with Adam Smith but with many before him who knew well and good that in trade all the parties involved are winners – that my little hope that the world might advance a step or two toward reason and peace and justice is nearly shattered and I am very tempted to turn into a misanthrope. Problem with that is that what such absence of reason, peace and justice hurts most is millions and millions of human beings, the very ones who often do such thick headed non-thinking.
Alas, I suppose one needs to just push on and rebuff this stuff day in and out.
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