Libertarianism and Legitimacy : a Reply to Huebert

IT IS OBVIOUS FROM his review of my book that J.H. Huebert holds me in genuine high esteem. This saddens him all the more for, in his view, I have squandered my talents on so unworthy a topic as Restoring the Lost Constitution: The Presumption of Liberty, which he characterizes as “an unfortunate waste of talent for a powerful mind such as Randy Barnett’s” (p. 108). While there is much that I disagree with in Huebert’s review, in this Reply I will focus on one crucial respect in which he misunderstands my thesis. This concerns the concept of constitutional legitimacy I develop and defend in my book. Part of the fault for this misunderstanding may be mine. Although I fully expected some libertarians to make this mistake, because my book was aimed at a more general audience, I nevertheless did not address it explicitly. For this reason, I am sincerely grateful to Mr. Huebert for putting this misconception into print and thereby providing me with the perfect forum in which to rectify it: the journal in which some of my earliest work on libertarian theory, written when I was still a law student, was published (Barnett 1977, 1978). The approach to constitutional legitimacy I present in Restoring was aimed at correcting what I believe to be a serious deficiency in libertarian political theory. Among radical libertarians within the modern libertarian intellectual movement, there is a single conception of political legitimacy: consent. This conception has two parts: (a) a legal system that is consented to is legitimate; and (b) a legal system that is not consented to is illegitimate. Because government legal systems lack the consent of the governed, they are necessarily illegitimate. In addition to lacking consent, government legal systems are