In "Restoring the Lost Constitution", Randy Barnett argues that the Constitution cannot claim to be based on an act expressing unanimous consent by "We the People". So how can the Constitution command legitimacy, or be "binding in conscience", in Barnett's weighty, yet not entirely clear formulation?
He offers an intriguing answer that, admittedly, I have not yet thought through sufficiently:
Because people may consent to almost anything, they have the liberty to consent to laws that greatly restrict their freedom. In the absence of actual consent, however their liberty remains intact and must not be infringed.
In sum, though actual consent can justify restrictions on freedom, without actual consent, liberty must be strictly protected. Therefore, when we move outside a community constituted by unanimous consent, every freedom-restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted.
And a little earlier on, he explains:
For consent to matter in the first instance, we must assume ... that "first comes rights, and then comes law" or "first comes rights, then comes government". And this proposition, once accepted, helps explain how lawmaking can be legitimate in the absence of consent. For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.
1. The argument itself
One of the strengths of this argument is that it creates both
- a foundation for democracy, and
- a basis for principled arguments for the containment of democratic power.
It seems to me, however, that it does require further support from a logically antecedent consideration: why should it be just that everyone have the same basic human rights, why should it be just that everyone be equal before the law?
Only if these implied demands are justified would the argument appear to be complete.
This, however, leaves us with an open-ended debate, in that the validity of the underlying assumptions are contestable and are, indeed, being permanently contested by voices that include those of liberals.
(1) The religious mooring of the underlying assumptions can in principle be and indeed is copiously and perhaps even increasingly called into question. Even among sharers of the same religion there are wide divergences in assessing the appropriateness or meaning of constitutional precepts or their implications.
(2) This problem does not disappear when rationalistic grounds are appealed to, say in the manner of Murray N. Rothbard, instead of revelatory authority, i.e. if arguments from first principles are offered to motivate the validity of a Constitution.
(3) Ultimately, one will find himself caught up in a consequentialist debate as to the beneficial or unsatisfactory effects of heeding the rules of a Constitution - and this is what has been going on ever since even before the American Constitution has become the law of the land. In other words: the Constitution needs to be defended every day. Not least because the Constitution does leave room for interpretation, dissent and alternative proposals.
At any time, people take for granted (the desirability or extsience or both of) a large number of explicitly stated or implied laws. In terms of consent, this unquestioning concurrence alone takes care of a wide range of constitutional precepts. People are not in open revolt against them, indeed mostly accept them as normal part of the social order. The remainder of the Constitution will have to be chosen so as not to evoke resistance by the people at large or by groups powerful enough to overthrow it.
Keeping the Constitution viable requires room both for defenders and dissenters. The Constitution must be rooted in grown cultural practice and at the same time provide a framework within which a meaningful debate over its validity and implications can take place, inevitably comprising a spectrum of diverging interpretations.
What I find particularly interesting is the hypothesis - which I treat as a fact - that moral and legal conventions (customary law) can actually spring into life and later turn into precepts of the written and formal law without being part of an overarching, premeditated ethical design. This accounts for the fact that in a number of ways we find it difficult to rationalise the morality or establish the rational completeness of an ethical or legal system. Notwithstanding the multifarious efforts at conscious rulemaking, all in all the vibrant web of moral conduct and lawfulness is a growth and not a construction designed to fulfill criteria of perfect logical consistency. The law grew to be what it is: a constantly challenged, constantly remoulded survivor among other practices that lost out or never came into existence to begin with.
We do the things we do, because they are useful and they help our lot to survive when others decline or perish on account of disregarding what we have found to be advisable.
Has there ever been an election trying to establish the fifth commandment by unanimous consent? Hardly. Does this make the maxim less cogent, less legitimate? Hardly.
So, it is likely that a Constitution will incorporate precepts that make it rather acceptable to most people because it protects more or less broadly human and cultural expectations that "we the people" are used to act upon, and would be upset if we could not rely on them to find orientation in social life.
In sum: unanimous consent is impossible - for a Constitution to attain legitimacy what is needed is
- cultural compatibility, and
- credible, generally accpted forms of defending, contesting and developing it.
I suspect, the Stalin constitution did fulfill these criteria for a number of years in that it scored highly with regard to cultural compatibility, while the backlash in terms of discursive credibility was significantly delayed by the same mechanisms of persuasion and suppression that were propping up cultural compatibility for an extended period of time.
As for the Constitution of a free society, paradoxically, one of its tests is the ability to allow severe challenges to its substance.