

The Rehabilitationists: The Libertarian Movement to Undo the New Deal - smacktoward
http://www.newrepublic.com/article/122645/rehabilitationists-libertarian-movement-undo-new-deal

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anigbrowl
_That’s not a persuasive rationale in Barnett’s mind. “You should have your
own insurance,” he told me emphatically. “You should be insured. You should
have health insurance, you should probably have life insurance, disability
insurance. I insure myself.”_

This quote exposes the weakness in his position, and I don't think that's an
editorial or journalistic artifact - I've noticed similar lacunae in Barnett's
writings online and in his arguments in person on legal panels and so forth.

Here's the problem in a nutshell: Professor Barnett says Government should not
have the right to regulate, while the Individual should have an absolute right
to contract (or not) - but that same Individual does not have the right to
delegate any power to government, even in concert with a majority or
supermajority of other citizens.

Why not? Why should citizens be forbidden to tinker with the boundaries of
what is contractable? Contract _qua privielege_ (ie private law) certainly
predates the notion of a state and thus arguably forms a kind of natural law,
but invoking natural law is IMO a weak response to the legal chafing that
results from a constitutional republic - a Constitution that's legally Supreme
and a republican _form of government_ \- from _Res publica_ , a public affair
as opposed to the private right of a monarch or emperor. Given the state of
the world at the time, these distinctions were not academic or pedantic to the
founders; consider that in 1805 the US (a Republic) was dealing with both a
monarchy (the UK, albeit a cosntitutional monarchy rather than an absolute
one, but we still deal with a few of the latter today) and an imperial state
(France), so the governmental structure was not something you could take for
granted the way you can today (when even obvious dictatorships like North
Korea at least _pretend_ top be democratic republics and go through the
motions of conducting legislative business).

It seems to me that Barnett is arguing for adopting market fundamentalism
dressed up in the fleece natural law, and while I am broadly pro-market I
don't see any Constitutional basis for his argument. After all, the US is not
constitutively capitalist; in theory we could have industry wholly
nationalized as long as that nationalization did not involve expropriation.
Just because this would a terrible idea economically and politically doesn't
mean it would be unconstitutional. Private property would continue to exist,
but if the government of the stumbled upon some fantastic cornucopia of
material wealth then the citizenry could certainly direct the government to
spend it on buying up the industrial base, having most of the work done by
robots, and returning a dividend to the citizenry int he form of a basic
income. (I'm using a fantastic example just to point out that the Constitution
doesn't prescribe the structure of economic relations, so we needn't get hung
up on questions about the reach of the Commerce clause, which is one area in
which I agree with Barnett and other conservatives in rejecting _Gonzales v.
Raich_ and its key antecedent, _Wicker v. Filburn_.)

Barnett's argument reduces to a claim that contracts somehow precede commerce
and that contractual relations (even commercial ones) are thus somehow outside
the legislative scope, notwithstanding the juridical capacity for contractual
interpretation in the event of a dispute. I feel that he, along with many
other originalist scholars, secretly or unconsciously long for a priesthood
rather than a judiciary that operates as a coequal branch of government.

