Legitimacy and Monopoly

    

According to Randy, “If a constitution contains adequate procedures to assure that laws imposed on nonconsenting persons are just ... it can be legitimate even if not consented to unanimously.”

I’m inclined to disbelieve that.  Unless “adequate procedures” means “infallible procedures” (and these we wot not of), even the presence of adequate procedures will realistically allow some unjust laws to slip through; and an unjust law lacks moral force – both in the sense of being wrong to impose and in the sense of not being wrong to disobey – even if the institution that generated that law is such as to generate just laws most of the time.

Nevertheless, suppose we do grant that the presence of adequate procedures is enough to render a constitution worthy of obedience.  I still don’t think that will give much support to the actual U.S. Constitution.

Here’s why.  Either the Constitution claims territorial monopoly status for the political system it describes, or it doesn’t. 

Suppose it does – and Article VI’s stipulation that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land” – certainly gives that impression.  Then the problem is that territorial monopolies are by their nature subject to incentival and informational perversities that make them extremely unlikely to produce reliably just laws.  For an excellent presentation of the case for this claim, I refer the reader to Randy’s own book The Structure of Liberty.[75] 

But that means that no territorial monopoly can have adequate procedures for avoiding unjust laws; and so, on the assumption that the U.S. Constitution authorizes a territorial monopoly, it follows that the U.S. Constitution cannot meet Randy’s test for legitimacy.

On the other hand, suppose it turns out (perhaps through a creative Spoonerite interpretation of Article VI) that the U.S. Constitution does not claim a territorial monopoly.  Then the Constitution implicitly acknowledges the potential permissibility of rival legal systems within its territory. 

Imagine that such a rival system arises and develops procedures for avoiding unjust laws that are just as good as the Constitution’s.  Then it cannot be the case that the mere existence of such procedures generates a duty to obey the institution that uses them, because then one would have a duty to obey both the U.S. law and the rival system’s law even where they diverged, which violates the principle of ought-implies-can.

If the Constitution claims a territorial monopoly, it is too unjust to deserve general obedience.  If the Constitution does not claim a territorial monopoly, then it is too just to demand general obedience. 

[75.] Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law, 2d ed. (New York: Oxford, 2014).