Chapter 3 of Restoring the Lost Constitution:
We are still in the stage setting of the book. Here, Barnett looks at the conception of rights held by the Founders (a term that always reminds me of Deep Space) and the enactors of the 14th Amendment. First, however, we get in capsule form what should turn out to be the structure of argument for the rest of the book: “If (a) the framers held certain views of rights, (b) their conception of rights was correct, and (c) they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience.” I am unsure that this is in fact the structure of argument which follows. The remainder of the chapter does spend considerable time discussing the general nature of the conception of rights held by the Founders. But there is not much argument here or in the next chapter on the second point, that the conception of rights is correct. I take it that that argument is in the prior book. As a consequence, the extent of comment here is severely limited. What Barnett does tell us is that there are natural and inalienable rights. Natural rights are pre-governmental and are social. Inalienable rights are abstract, and should be thought of as liberty rights. “The inalienable rights can be classified as the rights of several property, freedom of contract, self-defense, first possession, and restitution.” (73) These rights define a region of free action or freedom to make one’s own choices.
Not much doubt that the Framers held views about rights, or that, as a general matter their views of rights were generally Lockean in nature. Barnett has no real argument in this work that such a view of rights is correct. I suppose that is in the prior book, so judgment should be withheld, or rather, for present purposes one should assume that a generally Lockean view of rights is correct. But with that nod, I should note that I doubt very much that a Lockean view of rights is right. Hume’s discussion of contract I think presents serious obstacles to such a view of rights. There are other independent reasons to doubt the viability of Lockean rights, including the tendency of such accounts to rest on circular reasoning. Lockean derivations of rights also run into problems in explaining the normative content or source for the rights, i.e., explaining why what is being provided is a moral right. But this is really a subject for the other book. So assume that there is a Lockean account of rights.
Barnett also describes the natural rights which are to underlie his theory of the Constitution as solutions to social problems. This strikes me as wrong. I think a compelling (but not conclusive) case can be made that law or government arises as solution to social problems, but it is something else to say that rights are a solution. First of all, one would expect that if natural rights are a solution, then there would be some fairly significant stability in the form of the solution, i.e., that the set of rights would not have great variance. That is plainly not so, not unless we take the set and the proposal to be more or less ahistorical. There are a number of problems with that move, including inconsistency with the overall project at hand and that the derivation of natural rights as solution cannot proceed independent of historical investigation because the problem(s) to which they provide solution(s) are themselves historical. Second, the solutions can be provided without invoking anything much in the way of rights. Put another way, there is risk here of taking conventions for rights. I suppose that the talk of ‘abstract’ rights may circumvent this line of attack. The cost is high, however, as talk of ‘abstract’ rights in this sort of context highlights the problems of normative source. A natural right theory cannot succeed if it is grounded in convention, at least not a natural right theory which could do the sort of work Barnett asks of his theory. If rights talk is just effective rhetorical cover, then it will not provide the basis for ‘binding in conscience.’
These thoughts raise a question about how the pieces of the overall argument are to fit together. Is an account fulfilling the three conditions set our by Barnett at 53 necessary for the rest of the argument? I don’t know.
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