See it
here. Even though I sympathize more with Randy Barnett's vision, I think Balkin's critique, which, is more linguistic, is strong. A taste:
On SSRN, I've published a draft of Which Republican Constitution?, a review of Randy Barnett's new book, Our Republican Constitution. The article is part of a conference on the book held in March at the University of Illinois, and will be published in Constitutional Commentary. Here is the abstract:
Randy Barnett argues that the American political tradition, understood in its best light, features a "Republican Constitution." But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties; and demands a government which derives its powers from and is ultimately responsive to the great body of the people.
Instead, Barnett's "Republican Constitution" is far closer to what most historians of the Founding would regard as the opposite or complement of the republican tradition. This is the tradition of natural rights liberalism, which begins with John Locke and evolves into classical liberalism in the nineteenth century. ...
32 comments:
I think Balkin's critique, which, is more linguistic, is strong
Balkin's critique is linguistic, that is to say artful, not rigorous, as he employs platitudes to rope in the Founding principles for his own leftism, a "living originalism."
Now, there is a truth behind all this, that conservatives and liberals share a communitarianism that libertarians/radical individualists like Barnett do not. But where conservatives and classical liberals prefer an organic civil society to be the community, leftists are happy to obliterate society in favor of the state, which let's face it, is far more effective because it has the guns.
see also
http://www.nationalaffairs.com/publications/detail/the-founders-originalism
Balkin starts on the same ground as the libertarian originalists, insisting that we must aim for an originalist understanding of the text. And, like the libertarians, he also defends this proposition on the ground of the text's writtenness. His explanation is less complicated than Barnett's; for instance, Balkin writes that, to maintain the framework of the Constitution over time, "we must preserve the meaning of the words that constitute the framework."
But Balkin breaks from the Barnett-Epstein school over the question of where the Constitution derives its legitimacy, since we do not officially renew our consent. He argues that each generation confirms its consent by debating constitutional construction. In their perpetual debates, Americans try to convince each other of what the constitutional text means for the changing realities of American politics. Arguments framed in this way "help generate Americans' investment in the Constitution as their Constitution, even if they never officially consented to it." Balkin furthers this idea with an aphorism: "In every generation, We the People of the United States make the Constitution our own by calling upon its text and its principles and arguing about what they mean in our own time."
So although Balkin pays lip service to the original meaning of the text, he turns right around and endorses "arguing" the words and concepts not in the context of when they were ratified, but what they mean "in our own time."
What they mean to whom, we must ask. Why, 5 members of the Supreme Court. That the Constitution means only what 5 people say it means remains a valid criticism, despite all the smoke blown to the contrary, and why "living originalism" is oxymoronic [or perhaps simply moronic].
The philosophical issue of "consent" is a real one. Randy Barnett and company have yet to be refuted or answered. Given who was eligible to vote (and some other factors) those who voted for the Constitution in the late 18th Century have no authority to bind the present.
This isn't to say that the 5 members of SCOTUS have any juster authority. Rather than the former isn't just either.
That's why the notion of constant renewal of consent of the US Constitution would help better merit its just legitimacy to impose its authority on the citizenry.
Given who was eligible to vote (and some other factors) those who voted for the Constitution in the late 18th Century have no authority to bind the present.
Not just the Constitution but any law. History starts anew with the morning paper.
What nonsense.
"Not just the Constitution but any law. History starts anew with the morning paper.
"What nonsense."
Yes, any law. It's obvious you don't have the issue of consent seriously.
BTW: It may be "every law," but it's not "every morning." Jefferson's idea was every generation has to consent anew.
JEFFERSON DIDN'T WRITE OR RATIFY THE CONSTITUTION. HE ALSO SUPPORTED THE FRENCH REVOLUTION LONG AFTER EVERY SANE MAN KNEW IT WAS AN OBSCENITY.
HE HAS THE LEAST INTELLECTUAL OR MORAL AUTHORITY ON THIS MATTER I CAN POSSIBLY IMAGINE.
I mentioned him because he anticipated what Barnett writes about which is taking the notion of "consent" very seriously in a philosophical sense. As in on what grounds does consent morally bind.
Jefferson's idea of every new generation renewing its consent, indeed, takes the issue more seriously and provides something with more moral authority to bind than the "consent" which was given in 1789.
But even Jefferson's broader idea of consent is still not sufficient to morally bind on consent grounds alone. For that you need unanimous consent.
Maybe you should read the whole piece.
http://scholarship.law.georgetown.edu/facpub/43/
He concedes the way in which the left living constitutionalists debunk the idea of original consent but then grab power is illegitimate.
However, on philosophical grounds they are right on illegitimacy of the consent as it went down to morally bind us today.
Maybe Barnett's theory too fails. Maybe all nations need myths in which to live and sustain themselves. But the notion that the consent as it went down in the late 18th Century was morally sufficient to bind us today is simply false as a matter of fact and logic.
It's still the radical vision of history, that it starts anew with every morning paper.
But as Burke points out, that's insanity. We don't know how or why the system works as well as it does; it developed organically via millions of variables. The radical demands that every variable of the status quo justify itself from scratch or be dispensed with. But that's infantile in a complex system.
As JFK said, never tear down a fence unless you know why it was put up in the first place. The failure--the horror--of the French Revolution shows just how wrong Jefferson was. The "renewal" of consent is a chimera; what really happens is a withdrawal of consent, and history teaches us that anybody who says 'things can't get any worse' has no imagination.
"The 'renewal' of consent is a chimera; what really happens is a withdrawal of consent, and history teaches us that anybody who says 'things can't get any worse' has no imagination."
It's a withdrawal of consent of the dead hand of the past that has no just right to bind the present on consent grounds alone. In short, another way of stating a just revolt, at least morally speaking.
To rest justice on consent grounds requires unanimous consent. I.e., you aren't bound to the arguable tyranny of the NYC co-op unless you explicitly agree to its terms and conditions.
It's a withdrawal of consent of the dead hand of the past
no just right to bind the present on consent grounds alone
To rest justice on consent grounds
"Dead hand." "Just right." "Justice." Balkin-style art and poetry, my original critique of his critique.
you aren't bound to the arguable tyranny of the NYC co-op unless you explicitly agree to its terms and conditions
If you inherit such a co-op apartment from your parents you're quite bound by its terms. The same is true of our Constitution and the government it created. Each citizen inherits it from his parents.*
You can change the rules of your co-op, but only via the means defined in its constitution.
____________
*Or consents when becoming a naturalized citizen. Interesting choice of words, "naturalized," eh?
Or we break out the guns.
Barnett answers this. If I am an adult I don't have to live in or accept my parents co-op. And as bad as the rules might be, exclusion is the proper remedy.
Pages 120-122 of his paper. People are born here subject to rules imposed by power. They didn't consent to them; they took no oath. Consent isn't an adequate justification for them for a variety of reasons I won't write here. That the original consent was not sufficient was one of them.
Barnett's argument IS there moral basis for the "justness" of our system, but consent isn't it.
The "dead hand of the past" isn't just an artful term. It's an effective argument against the notion that "consent" validates the constitution.
In the end the country in which we live has a bunch of rules, some of which are just, some are not. We obey the just rules because they are just; we obey the unjust rules for a variety of other reasons. The most common of which we don't want to get arrested, jailed, fined, prosecuted and imprisoned.
You inherit your citizenship, which carries rights and duties. If you don't want it, leave.
The past is not a "dead hand." That is rhetoric. The past is your patrimony, to which you are an heir, those who fought and died for your freedom, those who built the country you now enjoy.
There is the additional complication that it is the patrimony of others, too, and you have no individual right to trash their patrimony--again returning to the argument that libertarianism/radical individualism is anti-communitarian, indeed anti-social.
Again, Barnett answers this. His argument is that "consent" of the past is not a sufficient place to rest the argument of the "justness" of the US Constitution. He deals with the idea that you inherit your consent from the past and the "love it or leave it" argument.
To return to the co-op: The "consent" there is not defective. If you inherit from your parents, both consented and then you consent to receive the property. If Dad consented, but Mom didn't, she wouldn't own the co-op; but if she wished to visit Dad it would be voluntary on terms Dad/the co-op agree to.
So you either inherit the co-op from Dad alone or Mom & Dad together, in either case, consent was not defective.
The same can't be said of the "consent" which ratified the United States in 1789. For that we need unanimous consent (i.e., what we have in our co-op scenario), which we didn't have.
I can't "consent" for you in a contractual scenario, without your approval.
Likewise with "love it or leave it." It is "just" that a free country would permit citizens to leave. However, that citizens don't leave cannot mean that they "tacitly consent" to the power based rules imposed on them.
By way of example, many Jews in Nazi Germany, once they saw what was going down, wisely tried to GTFO. But not all of them did, for a variety of different reasons. We can't say, it is concluded, that those who chose not to try to leave (for whatever reasons) "consented" to what went down.
Unanimous consent exists nowhere on earth outside perhaps the nuclear family.
No man is an island: Man is a social animal. He does not create himself; he does not raise himself. There is an duty to other humans implicit in his nature, and one of those duties is not to screw things up for everyone else.
“Man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god.”
― Aristotle, Politics
"Unanimous consent exists nowhere on earth outside perhaps the nuclear family."
That's not true. In contract law, it exists everywhere. Corporations are creatures of unanimous consent.
Only at first, as anyone who's been at a shareholders' meeting will tell you. Your illustration of a corporation rather brings the point home. Shareholder factions arise, but you don't--can't--bust up the corporation and divide it between the factions. Somebody's vision wins, the losers have to live with it.
Indeed, it's in closely held [usually family-owned] corporations where unanimity is found, and not always then. And like birthright citizenship, if you inherit shares in the family corporation, by accepting the benefits, you certainly do consent to the company's charter.
"Only at first, ..."
Yes and that's what Barnett focuses on. Consent = good. To the extent that there was consent, indeed more consent than before, such pointed the American Founding in the direction of legitimacy. However, because it wasn't unanimous, consent fails to provide a sufficient basis for legitimacy.
Yet, the original Constitution was still legitimate on other grounds. You don't even have to read the whole paper; it's right there in the abstract. I bolded the key parts:
"The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes lawmaking procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity."
None of which answers Balkin's objection to Barnett's view of "libertarian" view of liberty to exclusion of communitarianism, which was your original reason for writing the post and my reason for responding to it!
But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties
[I don't necessarily agree with the non-denomination part except as applied to the states.]
For that we'd have to get to other parts of Barnett's book, "Restoring the Lost Constitution," into which this paper's argument is integrated. And I suppose, Barnett's new book on the "republican" Constitution.
We've heard the term "liberal democracy" used. I've also seen "liberal republicanism."
Maybe that's the problem. The title/thesis should be stressing "liberal" to qualify the "republicanism."
The terms are irrelevant, because Balkin gets to the heart of the matter: Barnett's view of liberty is highly individualistic; Balkin argues the Founding principles were far more community-oriented.
Indeed, the very idea of a society "inculcating values" is anathema to the libertarian, who holds himself to be "value-neutral."
http://edwardfeser.blogspot.com/2009/10/libertarian-neutrality-so-called.html
"John Rawls held that a liberal political order is neutral or impartial in three important senses: First, it treats persons as “ends in themselves” and thus as moral equals entitled to impartial concern; second, it seeks to realize its vision of justice in a way that is neutral between the diverse moral and religious worldviews prevailing among citizens of the society it is to govern; and third, it also neutral between the various alternative philosophical doctrines (liberal and non-liberal) individual political thinkers who could support it might be personally committed to. It rests instead on an “overlapping consensus” between moral, religious, and philosophical doctrines, while nevertheless sustaining a shared sense of justice between them, rather than a mere modus vivendi or truce between hostile factions.
Some libertarian theorists have proposed that their creed is more plausibly neutral or impartial in each of these three senses than egalitarian liberalism is. This idea is at least implicit in the thought of Robert Nozick, who also appeals to the Kantian principle of treating persons as “ends in themselves,” and who argues that a libertarian society constitutes a “framework for utopia” in which individuals and groups committed to wildly divergent moral, religious, and philosophical visions are all “free to do their own thing.” Will Wilkinson has been explicit in making a Rawlsian case for libertarianism, and legal theorist Randy Barnett, who endorses Wilkinson’s position, has presented similar arguments of his own.
My own view is that the “neutrality” of libertarianism is (like that of Rawlsian liberalism) completely bogus..."
I don't think the terms are irrelevant. I've come to believe there were tensions within the ideologies of originalism. You can get the results you want by focusing on one to the exclusion of the other. But the terms accurately get at the ideologies.
Even with the good old term "liberal democracy." The "democracy" part implies voting and majority rule. The "liberal" part implies rights that are antecedent to majority rule. That's tension right there.
"Indeed, the very idea of a society 'inculcating values' is anathema to the libertarian, who holds himself to be 'value-neutral.'"
I don't care to debate the point, but I think Feser (and you) are dead wrong here. Libertarians are not neutral about one thing: liberty. And the other forms of government in which they do believe (enforcing contract, tort, and property laws; supporting whatever kind of government infrastructure they think necessary to make the system work).
And it's true that some/many libertarians are culturally libertarian or libertine or liberal or what have you. Julian Sanchez, Will Wilkenson. Atheistic. And party on. And have sex and do drugs. Whatever.
But there are plenty of libertarians who are devoutly religious, socially conservative in their worldview and their ideal vision of how live ought to be lived, and so on. You've met a few of them along the way like Jim Babka.
I don't care to debate the point, but I think Feser (and you) are dead wrong here. Libertarians are not neutral about one thing: liberty.
Liberty as an end in itself is not a value.
As for arguing this libertarian [Babka] against that one [Barnett], all you do is make "libertarian" meaningless. I know nothing about Babka, but the question is whether individual liberty trump's society's survival. You kjeep straying from that nexus, which is core to Balkin's objection and is the topic of this exchange.
In his letter transmitting the Constitution to the Congress of the Confederation, Washington speaks of "Individuals entering into society [having to] give up a share of liberty to preserve the rest."
http://www.claremont.org/crb/article/aristotle-and-locke-in-the-american-founding/
"Liberty as an end in itself is not a value."
Of course it's a value. A value is something you value.
"Liberty as an end in itself is not a value."
Of course it's a value. A value is something you value.
Spoken like a true relativist. The reductio ad absurdum is that chocolate is a value.
No, freedom properly understood--and as understood by the Founding generation--is only a means to a proper end. Eudaemonia, virtue, the common good, these are proper ends.
This is what is missing from Barnett's hijacking of the Founding's "presumption of liberty" to his libertarian counterfeit of "liberty." The philosophical distinction between liberty and licence is obliterated when liberty becomes an end in itself.
And as we see, Aristotle and GWashington would be appalled at any claim to liberty that threatens the common good. Man is foremost a social animal: Nobody fought and died for your right to destroy the society he defended.
Actually what I did was give the accurate definition of how the term "value" defines. You were the one who first invoked the term. The Founding Fathers didn't use the term "values." The term itself is arguably relativistic in its structure. So maybe you should be looking for a different term when you try to make the point you do, if you don't like its implications.
Feser attacked a libertarian strawman of "neutrality." Libertarians aren't neutral on liberty.
On a personal note I actually agree with you on Eudaemonia. Though I don't see the connection between it and "the common good," as in you are only allow to purse Eudaemonia that supports "the common good."
The DOI isn't worded that way; it's worded in far more individualistic terms.
You get libertarianism via the "to pursue" part. You can pursue happiness but if you don't act in a virtuous manner, you won't achieve the end. See Groundhog Day.
The point being that the libertarian view obliterates any distinction between liberty and license, and elevates the will of the individual over the good of the community.
This is a perversion of the Founders' conception of liberty, who understood that man is a social animal and to destroy society is to destroy oneself and others.
Which is pretty much what's going on these days.
"The point being that the libertarian view obliterates any distinction between liberty and license,..."
Barnett deals with the distinction in his book; but you probably won't be convinced.
Marci Hamilton has an interesting video I might pose here where she attacks the "licentiousness" of religionists who want to get exemptions from the secular civil laws.
Yes, I saw her try that one at a legal conference. Pathetic. It's not remotely what the Founders meant by "license."
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