A few years ago on this blog I began a series of posts in which began rewriting and posting, in installments, sections of the Constitution that I believed lacked genuine libertarian underpinnings and substituted the original text for what I believed would be content more in harmony with the principles of liberty. I abandoned this exercise after only a few posts for two reasons. The first was based on Spooner's own reasoning that any document which purports to represent or bind individuals who have not expressed their consent to be party to it with signature or seal is without legal standing and thus null and void, and the Constitution, as Spooner points out, makes not even a pretense of being such a document. Second, the exercise revealed to me that the Constitution, both as originally written and subsequently amended, was so fundamentally full of flaws, loopholes, and omissions that subverted it as the instrument for preservation of liberty that it has historically (and falsely) been portrayed as being that any attempts to “improve” it were both counterproductive and a waste of time.
So why bother with the Constitution at all? Why do so many American libertarians turn to it as the primary hope for the restoration of liberty, despite its very obvious failure? I believe there are two answers that apply equally to both of these questions. First of all, many people, including many libertarians, see no other immediate hope outside of a state-centered framework for liberty's return because the idea of a stateless, anarcho-capitalist system in which liberty is upheld through voluntary exchange and cooperation among individuals is just too radical of a concept. Also, many libertarians adopt the minarchist view that at least some rudimentary level of government is essential to a functioning society, although they differ widely in their ideas of just how much power such a government should have. I'm inclined toward a third answer, which is that far too many libertarians reject Spooner's assertion that the Constitution (any nation's constitution, not just America's) as a legal document must conform to the standard Common Law requirements for a legal document. This includes the requirement that all individuals who are to be bound by the documents terms give their expressed legal consent in the form of a signature or seal and that the terms of the document are set within specific time frames in order to be valid (in other words, no “perpetual contracts”). The conventional, historic –and statist-- view is that constitutions, as national charters, supersede standard contracts that bind individual corporations. Spooner convincingly rejects this view in Constitution of No Authority, which probably explains why his treatise has been systematically ignored by historians and law professors alike ever since its publication.
Once again, read Constitution of No Authority for yourself. While Spooner offers no specific solutions or substitutes for the Constitution, the libertarian reader will likely come away with the feeling that none are either desired or beneficial to the nurturing of freedom.