Main authors discussed: Lysander Spooner, Edmund Burke, David Hume, Henry Sumner Maine.

In this brief but provocative article, Casey, a professor of philosophy at University College Dublin, revisits the radical argument Lysander Spooner made in his 1867 No Treason: The Constitution of No Authority. Spooner had argued that because the United States Constitution did not conform to the standards of an enforceable contract, it could have no binding authority on anyone living in his day—or, by implication, in ours.

Casey argues that recurring debates about constitutional interpretation—whether, for example, one should be an “originalist” or a “vitalist”—presume that the Constitution has an authority over us, and thus that the only issue is how to discern properly the nature and scope of that authority. Casey argues, however, that the assumption of constitutional authority itself requires examination before one even gets to principles of interpretation.

Thus Casey rehearses Spooner’s argument. One way to justify constitutional authority is by understanding the Constitution as a contract and its authority arising from express consent. But this approach, argues Casey, will not do, for numerous reasons: “If the constitution is to be construed as a contract, we might well wonder what the offer is, what would constitute acceptance, who is (are) the offeror(s), who is (are) the offeree(s), what was the consideration, and, finally, who is included in the privity of the contract” (328). The facts that the Constitution contains no specified operational duration and that it is not clear who the parties to it are, render its claimed authority even more dubious.

A second way to justify constitutional authority is as an implicit contract, resting, it is usually construed, on implicit consent. Implicit consent is typically pressed on the basis of voting in elections or paying taxes. Casey, via Spooner, argues that neither of these justifies the presumption of implicit consent. Voting can be seen, he argues, as a kind of self-defense against encroachments on one’s person or property, and because paying taxes is compulsory it too cannot be plausibly construed as reflecting genuinely voluntary consent. Casey, again via Spooner, argues we are licensed to conclude “that despite its pretensions, the U. S. Constitution is not a contract, that it binds nobody and never did bind anybody, and that those who claim to act by its authority are in fact acting without authority” (333). Although “There is nothing to stop anyone who regards the Constitution as worthwhile from actually signing it and agreeing with others who do likewise that they will make laws for each other within its remit, at the same time allowing nonsigners to live in peace,” nevertheless “the government of the United States does not in fact rest on any consent of the people of the United States” (333).

A third way of understanding constitutional authority Casey traces to Edmund Burke, who apparently, according to Casey, understands a constitution as an “eternal and primeval contract/partnership/compact/law” (334). Casey rejects Burke’s rather amorphous conception as unjustifiably unconnected to individual consent and as possibly based on an equally unjustifiable conception of the state on the model of the family.

Casey supplements his argument by considering the Irish Constitution of 1937, which, like the American Constitution, begins on the putative authority of “We, the people of Eire ….” Casey asks who the “we” are exactly, since only about 39 percent of the total electorate voted in favor of it. A similar deflationary story can be told of the “We, the People of the United States” opening to the Preamble of the American Constitution. Indeed, Casey recounts the philosophical debate between Jefferson and Madison about the extent of the authority of the American Constitution; Jefferson claimed the authority of the Constitution died with those who wrote it, while Madison argued that practical considerations justified recurring to the notion of tacit consent, which Madison nevertheless conceded was dubious.

Casey concludes by referring to Hume, whom he takes to agree with the view that there have never been constitutional agreements that rose to the level of contract. Hume indeed argued that authority rests not on force but on opinion, and opinion itself is largely a matter of habit. Perhaps habit, then, is the real source of the authority we vest in the Constitution today. Casey concludes that Spooner is correct: “we are left with constitutions of no authority” (339). The perhaps surprising cogency of the argument might compel us to admit that we are left with constitutions of no contractual or consensual authority, though we do have constitutions of habitual and, apparently, psychological authority. One might wish for more justifiable authority than that, but Casey’s argument raises considerable doubt about whether there is anything more.

Reviewed by James Otteson
Yeshiva University