Liberty Matters

The Spooner Zone: Randy Barnett on Spooner, Natural Rights, and Constitutionalism

Randy Barnett argues that Lysander Spooner is an important and influential legal theorist.  Barnett also explains how Spooner’s work influenced Barnett’s own thinking about how to interpret the Constitution.  Since Barnett is himself an important and influential theorist, the first claim is therefore true. QED.  But there are more interesting questions, such as why Barnett finds Spooner compelling and whether we should as well.
Spooner’s influence is on display in Barnett’s conception of originalism.  It’s not the older version of originalism, which looks to the original intent of the framers, but the newer version (or an even older version), which looks to the original public meaning of the language, the communicative context of the text.  Barnett argues that Spooner’s own use of this method to find that slavery was unconstitutional turns out not to work, that Spooner has misapplied his own method.  Spooner appeals to semantic ambiguities in arguing that slavery is unconstitutional, but the theory would require actual communicated ambiguities.  However, other aspects of Spooner’s theory suggest that the Constitution can’t bind people to respect the institution of slavery.  Spooner also notes that “only laws that are consistent with the natural and inalienable rights of the people can justly claim a duty of obedience.”  Since there isn’t a natural right to own another person, then no laws respecting the institution of slavery can be legitimate, whether or not the Constitution allows them. Let’s examine those premises.
Why, first of all, should we think that the only laws that can justly impose a duty of obedience are ones that are consistent with natural rights?  Because the very idea of rights is a moral one.  “Rights” is an ethical concept.  To have a natural right to x is, if nothing else, a morally legitimate claim to x.  The idea that justice can require you to be unjust is contradictory, so I can’t have a justice-based duty to violate someone’s natural rights.  Similarly in the second premise: there can’t be a natural right to own another person, for logical reasons.  If there are natural rights, they are borne by all persons, so Smith and Jones have the same ones.  Jones therefore can’t have a natural right that violates Smith’s natural rights; that would be contradictory.  If Smith has a morally legitimate claim, Jones can’t have a morally legitimate claim to block Smith’s claim.  The idea that one could have a right to violate rights is oxymoronic.  (This entails that natural rights must be negative rights, or liberties.  The right of every person to live and be free, to acquire and trade, doesn’t create any contradictions; whereas an alleged natural right to be provided with a thing suggests that someone has a nonconsensual duty to provide it.)  So, if there’s a natural right to live and be free, it is borne by both Smith and Jones, and Jones therefore can’t have a natural right to own Smith.  This means that if Jones claimed to have a property right in Smith, it wouldn’t be morally binding – not on Smith himself, of course, but also not on anyone else.  So a legal system couldn’t legitimately enforce Jones’s alleged right to own Smith.  Indeed, on Spooner’s view, a legal system can’t legitimately enforce any claims that violate natural rights. 
The Constitution, then, can’t respect the institution of slavery, not because there’s a way to read it such that it doesn’t “really” legitimize slavery, but because it can’t have the authority to violate rights in the first place.  Barnett argues that this represents a shift in Spooner’s thinking about the Constitution, a matter on which I’m happy to defer to Barnett.  What I find most powerful in Barnett’s analysis of Spooner is the insight that the Constitution shouldn’t be seen as something that binds the people, but rather as something that binds the governors.  Since governors take an oath, their consent is explicit and not tacit.  They are thus bound in the exercise of their power not to violate the rights of the people.  The people themselves, Spooner says, aren’t legally bound to anything they don’t explicitly consent to, but they are morally bound to not violate rights either.  So laws arising under the Constitution that are consistent with natural rights are binding on everyone anyway, and laws that are not so consistent have no authority.  The people are already bound not to violate other people’s rights, so they aren’t legally bound to anything that governors say that isn’t consistent with natural rights.  As Spooner put it, “If legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not.”
This leaves us with both a theoretical basis for objecting to abuses of constitutional authority as well as a practical method for countering them.  Where possible, we should interpret the Constitution according to its original meaning, and where it is unclear, we should resolve any ambiguities in rights-protecting ways and reject interpretations that are inconsistent with natural rights.  Interestingly, this creates a space within which one can be an anarchist and a constitutionalist at the same time.  The “Spooner zone” here is anarchistic in the sense that real authority can only exist (1) by actual agreement among people who are presumed to be equals, or (2) by respecting natural, negative, rights.  So governors can legitimately make only those laws that we would be morally bound by even if there were no lawmakers, such as laws against murder and theft.  But people in this Spooner zone don’t have to exempt themselves from meaningful engagement with current legal controversies.  Ironically, since people who reject Spooner’s views on natural rights and the relationship between consent and authority think that the Constitution is a legally binding document, they must take its authority seriously.   So originalism as an interpretive doctrine offers us a way to motivate even those with a more expansive conception of tacit consent and state power. 
The whole point of having a written Constitution, Barnett argues, is to have limits on power.  Those limits are established by the communicative context of the text, its original meaning (as opposed to “it means whatever I want it to mean”).  Laws imposed on people without their consent must be shown to be consistent with the Constitution’s original meaning and in as rights-protecting a way as possible.  In actual legal cases this will not always produce anarchistic results: since the Constitution clearly gives Congress the power to raise a navy, originalist interpretation is unlikely to lead to the conclusion that I as an individual have the right to raise my own navy.  But in a court case challenging, say, a putative government power to conduct warrantless searches, originalism is very likely to show that there is no constitutional authority to do so.  This result increases individual liberty in the real political world, and it’s important to be able to have a mechanism for doing so.  Writing books that explain the state’s lack of moral authority is helpful in advancing the cause of liberty in its own way, but actually rolling back encroachments of state power using the state’s own apparatus is valuable in a more tangible and publicly visible way.  Is there a natural moral power the state has which gives it the right to monitor my communications?  I am pretty sure the answer is no, but there’s no book I could write which would reestablish my privacy rights better than a legal challenge would.  It is of immeasurable value to the protection of a free society that there is a Spooner zone, a place of natural rights, and an originalist constitutionalism that is understood as serving them.  We should be grateful to Barnett for showing us that zone.