Back to Barnett. I want to finish out the chapter, so a longish post.
Barnett believes that (109) considerations of legitimacy of the state also justify adherence to some form of originalism. His suggestion is that a written constitution is “a crucial structural feature that helps provide” assurance that “only proper laws are enacted, applied, and enforced.” When I first read this I found it persuasive, but on reflection I am less taken by the argument. Is the idea that a state without a written constitution is less legitimate, or that it is more difficult to argue for its legitimacy? Why would a written constitution have those effects? For example, the UK lacks a written constitution (and they have royalty, so why attend to them?). Or, more to my taste, this means that the Roman Republic, SPQR, was an illegitimate state, as were all the ancient states and most of the more recent ones as well. As to a written constitution, it may be a help, and I think has been in the US and other states. But it is just words. The People’s Republic of China has a constitution, and a developed set of statutes, but one would have to be almost entirely delusional to believe that they lend any legitimacy to the government or the state. The PRC is an oligarchy, and authoritarian and racist regime. So then, we should reconsider the argument within a narrower context, i.e., within the context of discussion bounded by US legal practices. And so bounded, there is something to the point.
“[W]e are bound by laws passed pursuant to the written Constitution only if what it says establishes lawmaking procedures that are good enough to impart the benefit of the doubt on the laws that emerge from the constitutional process.” (110) The Constitution provides presumptive legitimacy to laws created pursuant to its provisions. This, however, seems to entail that the practice is of paramount importance, not the text itself. That is, to see if the process is what may yield legitimacy, one needs to attend to the way(s) in which the process is interpreted, meaning on looks beyond the original meaning of the Constitutional text to the ways in which the Constitution has been interpreted. For Barnett, that interpretive practice may not be faithful to the original meaning and so the laws (or is it the Constitution itself?) lose the legitimacy. That would happen either because the law making is inferior to the constitutional process (in the sense that that the lawmaking does not accord with the substantive process set out in the Constitution) or because the unwritten deviation itself undermines legitimacy because it is unwritten change in the Constitution. Barnett makes this point in a footnote, but it really needs more explanation than that. If there is no adoption of inferior processes, why would the deviation from writing itself matter so much? Why would a practice matter less than the written forms? Consider it in light of quotidian contracts – doesn’t legitimacy there often follow from practice without regard to whether practice conforms to the prior writing? And isn’t Barnett then saying that the entire US legal practice lacks legitimacy? Aside from circularity, one would want more than a footnote on it.
We today “profess our commitment to this written Constitution, and original meaning interpretation follows inexorably from this commitment.” (112) Barnett argues that there is a connection between original meaning and natural rights, and that the connection includes natural rights as a constraint on non-Constitutional law. Natural rights suggest that the legitimacy of law may be determined directly, and that the obligation to obey law ceases where natural rights do not comport (or maybe conflict) with the law. “Whereas ordinary legislation potentially can be overridden by considerations of justice (if a constitution so permits), a constitutional provision cannot. If, as a matter of positive law, the original meaning and proper construction of a written constitution permit judges to protect natural rights by finding statutes unconstitutional – as I will contend the Constitution does – it does not follow that judges are authorized to disregard the original meaning of a legitimate written constitution when they think this meaning violates the background rights retained by the people.” (113) I have to say that this is one place I think Barnett has it wrong. I think his argument is that natural rights cannot stand as a constraint on legitimacy of a constitution because the formation of the constitution involves a (voluntary) agreement. To the extent the parties agree to the provisions of the constitution and those provisions conflict with natural rights, the parties are waiving the claims of the natural rights in conflict with the constitutional provisions. I may have a right, but once I give up the right it does not return (except for Nietzsche) of its own. But this position strikes me as rather harder to defend than that argument is up to. The persuasiveness of the line rests (almost?) entirely on the sub voce suggestion that the same persons are involved. Sure, I can give up my right, but it is rather a different thing for me to give up your rights, particularly when you, e.g., are not around or don’t get consulted, etc. One needs a good deal more explanation of the structure of natural rights – how they are grounded, what they entail, etc. – before accepting anything like this argument. It is a funny thing to say, but here it seems that Barnett is not taking natural rights seriously.
These considerations lead directly to Barnett’s response to the objections to originalism as original intent, in particular the ‘dead hand’ objections. (Keep in mind that originalism for Barnett is meaning, not intent. So he has to claim that original meaning is the most likely meaning in the sense of public meaning of the texts. (114)) For Barnett, the ‘dead hand’ objection is the most pressing, not the interpretive objections. A first step to answering it is to note that the Constitution is not generally binding, i.e., not binding on all persons at all times. (115) in the first instance it is (or purports to be) binding on government officials, not citizens or residents. (I don’t think that can be – treason involves breaching duty imposed in virtue of the Constitution.) (116) Assuming that is right, then the paramount issue, as argued in this chapter is whether the commands of government officials issued pursuant to the Constitution are binding in conscience, not whether the Constitution is binding in conscience. What Barnett seems to be up to here is finding a way around the historical facts – large portions of the population at the time had no say concerning adoption of the Constitution. That fact is a problem if legitimacy, i.e., being bound in conscience, necessarily flows from and depends on the legitimacy of the Constitution itself. It is not unreasonable to move the focus of legitimacy to statutory rather than Constitutional law. For the most part, it is more ordinary law that affects and constrains.
That large classes were excluded from process originally undercuts legitimacy indirectly. “I am still bound in conscience by the laws produced pursuant to the Constitution if there is reason to be confident that the manner by which these laws were produced and enforced effectively ensures their necessity and guards against their injustice; that there is reason to believe that such laws are not merely a product of faction and they do not violate my rights or the rights of others.” (117) This comes close to saying that the results of an acceptable process will be legitimate (in a moral sense). Which is a claim one associates with folks at odds with libertarian and natural law politics – Rawls, say.
And we are out of Chapter Four.
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