In "Consent of the Governed" I say that
one may object to the Constitution, one may refuse to concede its legitimacy, and one may object to being forced by the state to abide by it. But here's the catch: Such objections and reservations are valid only to the extent that the Constitution actually deprives one of liberty. Inasmuch as it does not do that (except in the fevered minds of anarcho-libertarians), and inasmuch as it fosters liberty, such objections are nothing more than irresponsible tantrums masquerading as a political philosophy.
What I did not know at the time of writing was that Professor Randy Barnett, author of Restoring the Lost Constitution, says much the same thing (in more measured tones) in his reply to a review of his book by J.H. Huebert (Journal of Libertarian Studies, Spring 2005). Specifically, Barnett says:
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 also illegitimate because they claim a coercive monopoly of power and therefore violate natural rights. So far so good, but here is the problem. Or rather, a symptom indicating an underlying problem: by this theory of legitimacy, all government legal systems are equally illegitimate. Why? Because all government legal systems lack consent; and all modern governments claim a coercive monopoly of power. Because real consent is an all-or- nothing-at-all thing that all government legal systems lack equally, and all governments equally claim a coercive monopoly of power, modern libertarian theory offers no criteria by which to distinguish better from worse governmental legal systems.
But no libertarian really believes that there is no relevant difference on libertarian grounds between the regime of Nazi Germany, the Soviet State, the United States, or (name the country in which you most want to live). Yet their exclusively consent conception of legitimacy, properly understood, offers absolutely no way to conceptually distinguish among these government legal systems. . . .
In response to this challenge, it is not enough for a libertarian to say, as some surely would, that some governments are better than others because they commit more or fewer rights violations. However true this assessment, it misses a crucial issue to which libertarians have paid inadequate attention: the duty to obey the law. This is a complex subject that I address in my book and elsewhere (Barnett 2003), and I simply cannot recreate that analysis here. The conclusion I reach is that there can be a prima facie duty to obey the law if it is made and enforced by procedures that provide sufficient assurance that the laws it imposes on nonconsenting persons are just. In other words, the issue of obedience turns not on whether a particular law is just, but on whether it deserves the benefit of the doubt that it is just. Laws made and enforced the right way are due this deference, unlike laws that are not. So the existence of a prima facie duty to obey the law depends upon the reliability of the procedures in place to assure the justice of laws.
This “gap” between the justice of a law and the prima facie duty to obey a law that is likely to be just because of the way it is made and enforced makes possible a much-needed refinement of basic libertarian theory. In the account of constitutional legitimacy I defend in my book, I continue to insist that consent, if it really exists, can impart legitimacy on a legal system. . . . Instead, I propose that there is a second route to legitimacy besides consent: the degree to which a legal system protects the fundamental natural rights of those upon whom it is nonconsensually imposed. The more effectively a regime protects the rights of those whom it governs, the more legitimate it is.
This move requires that a new distinction be introduced into libertarian theory between “justice” and “legitimacy.” Although I believe that this distinction is implicit in the actual beliefs of libertarians, confusion and error results from its lack of explicit recognition. And regrettably some libertarians try so hard to hew to existing theory based exclusively on consent that they come to believe that all governmental legal systems are equally objectionable.
Huebert concludes a reply to Barnett by saying that
I am not at all opposed to consideration of second-best alternatives to anarcho-capitalism, so I give Professor Barnett credit for searching for realistic means to advance liberty. Unfortunately, because of its support for the centralized state, Mr. Barnett’s system would not give us “second best,” but rather “even worse,” so I must continue to reject it, along with any notion of a duty to obey the state.
Huebert is in thrall to the fiction that anarcho-capitalism is "first best" because it is somehow possible. But it is impossible, for reasons I have given in several posts:
Defense, Anarcho-Capitalist Style
But Wouldn't Warlords Take Over?
My View of Warlordism, Seconded
The Fatal Naïveté of Anarcho-Libertarianism
QandO Saved Me the Trouble
Two Views of Liberty
An essential ingredient of anarcho-libertarianism is the non-aggression principle, which I address here:
Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
"Peace for Our Time"
Idiotarian Libertarians and the Non-Aggression Principle