Restoring the Lost Constitution (20)

Today, I reach the 20% mark; I’m behind a bit. Ah well, no one said it would be easy. Filmateleven. [you have to read a book from one of my earlier posts to get the reference – oh inside jokes!]

I’m working through Restoring the Lost Constitution: The Presumption of Liberty by Randy Barnett. This is a libertarian lawyers attempt to develop a proper understanding of the constitution. I’m especially interested in his discussion of hermeneutics, as he is one of those “new originalist” authors and I think there are some lessons for biblical interpretation there.

Before he gets there, he provides some intriguing background theory for the constitution. In the first section, he makes several important arguments. First, he argues that the ground for taking the constitution seriously cannot be popular consent (because there was and can’t be any such universal  consent; he deals with objections like tacit consent, voting consent, and so on). There are I think other avenues that Christians might want to explore; even if we have disdain for the right of kings, the legitimacy of government is something we don’t question simply for its failure to meet some arbitrary (or even philosophical) criteria. This is not to suggest all forms of government are equally moral or approximating the divine ideal, but that is a somewhat different contention than the one Barnett proposes. Even if persuaded by Barnett as to the desirability of his proposal, I would still say that obedience to government is morally binding except under exceptional circumstances.

Second, he argues that a valid basis for legitimacy of the constitution is its protection of natural rights and just processes for ensuring they are protected. This does not require consent or any mechanism for approval (though, of course, such a vote or mechanism can add some weight to the legal framework). By natural rights, he means positive liberty rights, which according to the founders can never fully be listed (e.g., the right to wear a hat and go to bed at a time of your own choosing). These unenumerated rights are protected in principle (but not in practice; an issue I think he addresses later) in the 9th amendment. The mechanism for protecting those rights can make the legal system be morally binding even on those who don’t consent to it (including those who are initially excluded from those rights [e.g., slaves, women]). This theory he proposes is not dependent on a particular view of justice or of natural rights, as long as a person believes there are such things, this model, Barnett argues, works.

Third, he responds to those who argue that these natural rights are “surrendered” by participation in the state. He suggests that there are several possible responses: 1) only some liberties or partial liberty might be surrendered, 2) these rights might be exchanged for equal or equivalent civil rights (e.g., criminal courts instead of personal vengeance), 3) the government might be considered an agent of the citizen in the exercise of their rights, and 4) these rights might merely be regulated (i.e., made regular not cancelled) by government. Under any of these theories, given the presumption of liberty rights, only necessary and proper laws restricting those rights can be approved.

In any event, can’t wait to get to the interpretation stuff which is next.


One Response to “Restoring the Lost Constitution (20)”

  1. sephaiden Says:

    Hey Prof. Sanders! It’s me, Aaron from WBC haha!

    It seems that I’ve stumbled upon your blog… its pretty interesting heh! I’ve only gotten the chance to read your most current post, but will probably go through others later! (I haven’t thought about government politics in quite some time haha! I’m kinda interested now… )

    Ahh, but hey… glad to hear that you’ve gone through 20 books already! That’s good progress, in my opinion haha!

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