An Overview of Criticisms of Randy Barnett on Iraq and War

This is from my Mises blog post in 2007:

An Overview of Criticisms of Randy Barnett on Iraq and War

July 27, 2007 by Stephan Kinsella

By now there’s been a great deal of libertarian criticism and discussion of Randy Barnett‘s controversial Wall Street Journal editorial, Libertarians and the War [link bad; wayback version] (subtitled: “Ron Paul doesn’t speak for all of us.”), including:

• Sheldon Richman’s A Bogus Libertarian Defense of War;
• Justin Raimondo’s Bizarro ‘Libertarianism’: Fake libertarian legal scholar crawls out of the woodwork to attack Ron Paul’s antiwar stance;
• Jeff Tucker’s blogpost How very strange that the war hasn’t gone according to plan…;
• Walter Block’s Randy Barnett: Pro War Libertarian?;
• Sheldon Richman’s Ahistorical “Libertarian” Warmongers;
• David T. Beito’s A Response to Randy Barnett on the Iraq War;
• Gene Healy’s Randy Barnett and the Iraq War;
• Max Raskin’s Libertarians and Murder: Ron Paul Doesn’t Speak for All of Us (link down; wayback version);
• Matt Barganier’s Finally, an Alternative to Peace and Freedom!;
• Mario Rizzo on Libertarians and War

There are more, including one by the execrable Tom Palmer, but I won’t sully Mises.org by linking to it. Barnett has replied to some of these in Antiwar Libertarians and the Reification of the State and Libertarian Theories of War.

Barnett’s critics have made a lot of good points. Sheldon Richman, in Ahistorical “Libertarian” Warmongers, for example, wrote:

I think this gets at an underlying flaw in Barnett’s case. He, like others, approaches libertarianism in a hyper-rationalistic, ahistorical way. If in his view a policy position cannot be reached deductively from libertarian first principles, he concludes that libertarianism per se has nothing to say about it. But his method is wrong. Libertarianism isn’t purely an a prioritheory. It’s a set of insights about human beings and a unique historical institution — the state — insights produced by centuries of experience. Libertarianism properly conceived is an interplay of theory and history, neither ever losing sight of the other. It is, as Chris Sciabarra notes, dialectical.Barnett curiously combines his simplistic a priori approach to libertarianism with a vulgar dilettantism regarding current events void of detailed knowledge about the U.S. government’s conduct in the world for at least the last 50 years. That is what allows him to blithely proclaim that there is no libertarian position on a war against a country that posed no threat to the American people and that was run by a former agent of American presidents. That’s why he takes George Bush’s pronouncements and policy seriously.

And why are libertarian such as Barnett comfortable with this dubious methodology with respect to foreign policy? Because not far below the surface, they are nationalists. The nation is still a special unit of emotional value — particularly the U.S. There’s an implicit theory of exceptionalism here too. That accounts for their lack of interest in the history of U.S. intervention.

Fascinating point about their “implicit theory of exceptionalism” accounting for “their lack of interest in the history of U.S. intervention.”

A few other comments on Barnett’s piece. He writes: “Does being a libertarian commit one to a particular stance toward the Iraq war? The simple answer is ‘no.’” So … the obvious question tht occurs to the reader: where does he stand? It’s strange that he argues that a libertarian can still be in favor of war, and in particular the Iraq War, without ever explicitly acknowledging he is (was?) a proponent of the war. As Barnett made clear in a September 2003 blogpost on National Review’s The Corner, Libertarians Against The War,

Some libertarians I respect enormously oppose the war in Iraq. It was only a matter of time, I suppose, that I might be criticized by them for supporting it. The delay comes from the fact that I have not published anything in support of the war, but have confined myself in print to posting links on to articles by those who have. … I am a libertarian and Hanson is a conservative so we do not agree about everything. But unlike some libertarians, many on the Left, some Republicans and many Democrats, I do think we are in a defensive war and have been since we were attacked on 9/11. I further think that the battle for Iraq is a legitimate part of that overall war….

He also writes, “Naturally, the libertarians who supported the war in Iraq are disappointed, though hardly shocked, that it was so badly executed.” Does this mean that Barnett was in 2003 in favor of the war but has now changed his mind? If so, why not admit this mistake? If not, does this mean he is still in favor of the war even though he is “disappointed” (but not shocked!) that it has gone so poorly? And what does the “though hardly shocked” comment mean–that he realized the war might be a disaster at its inception but supported it anyway?

Barnett goes on:

The Bush administration might be faulted, not so much for its initial errors which occur in any war against a determined foe who adjusts creatively to any preconceived central “plan,” but for its dogged refusal to alter its approach–and promptly replace its military commanders as President Lincoln did repeatedly–when it became clear that its tactics were not working.

What is bothersome about this passage is its implicit endorsement of Lincoln, and his war and tactics. As Raimondo notes, according to Barnett, “[a]ll that went wrong [in Iraq] was that the implementation of the neocons’ grandiose vision was botched by a president who wasn’t enough like Lincoln – you know, the famously “libertarian” president who jailed his political opponents, banned antiwar newspapers, and burned Atlanta to the ground.”

Another troublesome comment: Barnett writes that

pro-invasion libertarians … are still rooting for success in Iraq because it would make Americans more safe, while defeat would greatly undermine the fight against those who declared war on the U.S. They are concerned that Americans may get the misleading impression that all libertarians oppose the Iraq war–as Ron Paul does–and even that libertarianism itself dictates opposition to this war.

Perhaps it was not intended to be taken this way, but Barnett appears to imply here that anti-invasion libertarians such as Ron Paul are not “rooting for success in Iraq”. I am sure Paul would vigorously deny this, and indeed that he is also “rooting for success in Iraq”, while remaining skeptical of the prospects of such success. (Healy makes a related point about the “rooting for success” comment.)

Also: “To a libertarian, any effort at “nation building” seems to be just another form of central planning which, however well-motivated, is fraught with unintended consequences and the danger of blowback.” But after acknowledging the danger of blowback, Barnett does not address this at all in the context of Iraq.

Another problem: the fence-sitting and abstract nature of Barnett’s piece. An acquaintance of mine wrote me that he was disappointed in Barnett’s piece for several reasons, including:

His much more fence-sitting piece is in some obscure blog. If you have strong views and you print them in the WSJ, fine. But, if you have tentative views, you put them in a blog, or in a scholarly journal, grow them into strong views, and then publish them in high-circulation journals (newspapers, magazines, etc.). Also, I tire of abstract discussions about war in general. Let’s discuss THIS war in particular. That’s why I liked Raimondo’s piece — he talked about specifics. For instance, talking about a specific war, it is absolutely OK (contra Barnett) to argue simultaneously that a war is illegal according to the UN and that the UN should be abolished. Hell, libertarians cite the GAO all the time while criticizing the fedgov, or assert states’ rights against the fedgov when we know good and well that states don’t have rights. Duh.

This problem is alluded to above when I noted that in the WSJ piece he does not acknowledge he, at least in 2003, was in favor of the war; and he does not say whether he is currently in favor of the war. He argues that one can be a pro-war, and pro-Iraq War, libertarian, but whether one should be, or whether he is, he leaves open or to inference.

I’ve noted a similarly curious stance by Barnett in the past. Despite his anarchism, for example (see, e.g., his 1977 JLS article Whither anarchy? Has Robert Nozick justified the state?; and his advocacy of a “polycentric” legal order in his Structure of Liberty book, which I discussed in this review), and his admiration for Spooner (he runs LysanderSpooner.org), he wants to find a way that the state can be legitimate. As he wrote in his 2003 article, Constitutional Legitimacy:

Lysander Spooner was perhaps the earliest American constitutional theorist to recognize that an argument based on hypothetical consent “existing only in theory” is required to respect the rights of the individual because everyone cannot be presumed – in the absence of express or actual consent – to have given up their rights: “Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.” In the absence of actual consent, a government that protects the rights of all “is the only government which it is practicable to establish by the [theoretical] consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent.”In sum, an argument based on theoretical or hypothetical consent is inadequate to justify overriding background rights. To the contrary, for a constitution to be legitimate on the basis of hypothetical (as opposed to actual) consent, it must be shown that such a constitution is consistent with the background rights of the individual. In the next Part, I shall consider an alternative conception of constitutional legitimacy that explains both how laws can bind the citizenry in conscience in the absence of consent and why, because consent is lacking, the lawmaking power of government must be limited. Indeed, I argue that, in the absence of unanimous consent, there is a duty to obey the law only when the legislature’s powers are limited.

Now, it is curious enough that an anarchist wants to find a way to argue that the state’s decrees “can bind the citizenry in conscience”. But what I have always found striking about this position of Barnett’s is that it’s not really relevant to our current government since it does not have or abide by a sufficiently “libertarian” constitution. That is, Barnett ought to argue that theoretically he can imagine how a state could adopt enough limits so that its laws have a certain amount of legitimacy, but that our current state is not legitimate and there is, in fact, no duty to obey the state’s laws. It seems that if he took this approach, however, his entire “presumption of liberty” approach would lost most of its relevance. It would be one thing to advocate that a near-minimal state that has realistic chance of being a limited state adopt this approach to make it and its constitution “legitimate”. But a mammoth state like ours is not legitimate, is not limited, and would not be even if its courts tried to adopt some version of the “presumption of legitimacy” test–can anyone really believe government judges would ever apply this presumption in a seriously libertarian way? As libertarian attorney J.H. Huebert notes,

The Ninth Amendment and the Commerce Clause are not, as he says, “lost”—they have been in the Constitution all along. Courts have distorted these provisions not because judges have not had Randy Barnett to explain their true meaning. Courts have done so because they are part of the very federal government Randy Barnett seeks to limit. In general, judges and those who appoint them have no reason to want to limit government. … [N]othing short of a libertarian revolution would be necessary for courts to begin doing what Mr. Barnett wants them to. How could such a revolution come about? Not by educating people about the Constitution, but by educating them about liberty. And any good libertarian education reveals that “limited government” is impossible.

(This is part of an interesting exchange between Barnett and Huebert: Huebert’s Book Review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett; Barnett’s Libertarianism and Legitimacy: A Reply to Huebert; and Huebert’s No Duty to Obey the State: Reply to Barnett .)

Note this curious comment by Barnett, in the context of a discussion about the US invasion of Iraq:

Would [Huebert] deny that if the U.S. Constitution, properly interpreted, did reliably enforce individual rights when followed (a contestable claim), then the existence of such a legal system anywhere in the world would be a good thing on libertarian grounds, however it came about? [emphasis added]

Here Barnett, if I am reading him right, implies that (a) the current US government and Constitution-as-interpreted are not legitimate; and (b) it is not even clear–it is “contestable”–that the U.S. Constitution would be legitimate (“reliably enforce individual rights”) even if it were properly interpreted and followed! I find this astounding! Why does Barnett seek to legitimate the US government and Constitution when he admits it’s not legitimate now and might not be even if the Constitution were properly interpreted? And why would he argue, or leave open the possibility that, the admittedly failed Iraq War might be legitimate, even though it’s waged by a currently illegitimate state, to impose some Islamaphied constitution that is not even as good as our own illegitimate Constitution?

Update: In the comments to the Mises post some of the links are now outdated. Here are some updates: Tom Palmer’s post It Wasn’t Justified and The Temptation of War. See also Anthony Gregory, The Effects of War on Liberty; and Why Libertarians Must Embrace Peace: An Archive of Material on the Pro-War Libertarian Folly.