Do our duties extend beyond our consent?

10 Apr

From Randy Barnett:

[In my Am I “imperiling” originalism? A reply to Joel Alicea, I offered to post any response he may have. What follows is his reply.]

I am grateful to Professor Barnett for offering me the opportunity to respond to his criticism of my recent essay in National Affairs, as well as for the very kind comments at the beginning of his post. Professor Barnett’s criticism is characteristically thoughtful and probing, and I think it helps sharpen the points of agreement and disagreement between us.

We agree that the legitimacy of written law requires an answer to the question, “Why should we, the living, obey those long-since dead?” And we agree that there are circumstances under which one can rightly refuse to obey the dead. Barnett thinks that these commonalities render our approaches “not fundamentally different.”

But both of these areas of agreement are mere starting points from which we take radically different paths. That we ask the same questions does not mean that we reach the same answers. I believe the obligation of the living to obey the dead inheres in a regime of written law, especially one based on notions of popular sovereignty. But, more fundamentally, I think it inheres in the nature of an ordered society, which is man’s natural state and which comes with attendant obligations and duties to our forebears. Barnett misunderstands me, then, when he says that my purpose in the essay was to “defen[d] constitutional originalism against the common legal academic trope that it consists of adherence to the ‘dead hand of the past.’” My purpose was not to defend originalism against the dead hand of the past; my purpose was to justify the dead hand of the past. Or, as the title of the essay terms it, the rule of the dead.

This is a foundational disagreement between us. Barnett’s theory begins byrejecting the rule of the dead; he disclaims any right of the dead to bind the living. Rather, Barnett thinks that the living—quite apart from any duties to the dead—should obey the past only insofar as (1) the living affirmatively consent to such authority or (2) the decisions of the dead are necessary and proper.

This divergence in views is rooted in different conceptions of man and his relationship to society. In my view, man is, by nature, a social animal born with reciprocal duties and responsibilities that he does not affirmatively choose. I argue in my essay that the best and most traditional accounts of written law and originalism assume these premises. Barnett, by contrast, sees each individual as his own sovereign, a mini-society unto himself. Obligations must be consented to or, at least, not be an affront to one’s sovereignty.

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