Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Majority Rule ◽  
Popular Sovereignty ◽  
James Madison ◽  
The People ◽  
The Commons ◽  
Constitutional Regime ◽  
Constitutional Legitimacy

This chapter examines what it takes to achieve constitutional legitimacy in the absence of consent by focusing on the effort of those who drafted and adopted the Constitution to constrain the fiction of popular sovereignty they themselves accepted. The fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. If the king obtained his authority from God, the Commons gained its authority from the people. Despite their rhetorical commitment to “popular sovereignty,” by the time the Constitution was written, its framers were convinced that pure majority rule or democracy was a bad idea. The chapter first considers democratic majoritarianism and and what James Madison called “the problem of faction” before discussing constitutional legitimacy in the absence of consent. It argues that a constitutional regime is legitimate only if it provides sufficient assurances that the laws it produces are “necessary and proper.”

The Fiction of “We the People”: Is the Constitution Binding on Us?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Popular Sovereignty ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.

Restoring the Lost Constitution

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Supreme Court ◽  
Gravitational Force ◽  
Fourteenth Amendment ◽  
Popular Sovereignty ◽  
Original Meaning ◽  
Commerce Clause ◽  
The People ◽  
The Supreme Court ◽  
The One ◽  
Constitutional Legitimacy

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Popular Sovereignty ◽  
Alternative Path ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.

Democracy, or Taming an Unruly Friend

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Majority Rule ◽  
Popular Sovereignty ◽  
Sovereign Power ◽  
Representative Government ◽  
General Will ◽  
The People ◽  
Universal Suffrage ◽  
Diverse Society ◽  
The Will ◽  
The Relationship

This chapter examines the relationship between constitutionalism and democracy, with particular emphasis on the creative, disruptive, and destructive force behind constitutions and government: the people. Democracy is inherent in modern constitutionalism. The authority of the constitution derives from people’s sovereignty. If constitutionalism was designed to contain the abuse resulting from absolute sovereign power by setting up arrangements inside government, the democratic exercise of sovereignty emerged as an external constraint on government. This chapter traces the evolution of universal suffrage and considers its consequences, including the perils (and tyranny) of majority rule for a diverse society. It discusses the idea that a sovereign people has a single general will and looks at representative government as a means of balancing popular sovereignty with constitutionalism. It analyses the binding mandate and how it was replaced by the free mandate, along with the referendum as a genuine expression of the will of the people.

Authenticity:The Ultimate Challenge in the Quest for Lasting Constitutional Legitimacy†

2020 ◽  
Author(s):  
Ming-Sung Kuo
Keyword(s):  
Charismatic Leadership ◽  
Popular Sovereignty ◽  
Theoretical Modelling ◽  
Legitimate Authority ◽  
Constitutional Democracy ◽  
Making Sense ◽  
The People ◽  
The Relationship ◽  
We The People ◽  
Constitutional Legitimacy

Abstract The recent upsurge of populism has prompted a wave of theoretical reflections on constitutional democracy. Echoing Max Weber’s sociology of legitimate authority, Bruce Ackerman’s Revolutionary Constitutions: Charismatic Leadership and the Rule of Law stands out from the crowd by providing an ambitious trichotomy of constitutional legitimacy—revolutionary, establishmentarian and elitist—with a focus on the revolutionary pathway. Engaging with Ackerman’s theoretical modelling of the relationship between constitutionalism and legitimate authority, I argue that the resurgence of popular sovereignty, as embodied in We the People in populist rhetoric indicates the centrality of authenticity in constitutional democracy as constitutional authenticity is underpinned by the ethics of being true to the people’s originality. Yet, with the ethics of authenticity assuming its pathological form, the focus has been shifting from making sense of the constitution to the people’s self-identification with individual politicians. The latest wave of populism crystallises the anti-ethics of authenticity in our quest for lasting constitutional legitimacy.

Popular Resource Sovereignty

2018 ◽  
Author(s):  
Leif Wenar
Keyword(s):  
Human Rights ◽  
Natural Resources ◽  
Large Scale ◽  
Good Reason ◽  
Resource Curse ◽  
Civil Conflict ◽  
Popular Sovereignty ◽  
State Sovereignty ◽  
The People ◽  
Rich Countries

Article 1 of both of the major human rights covenants declares that the people of each country “shall freely dispose of their natural wealth and resources.” This chapter considers what conditions would have to hold for the people of a country to exercise this right—and why public accountability over natural resources is the only realistic solution to the “resource curse,” which makes resource-rich countries more prone to authoritarianism, civil conflict, and large-scale corruption. It also discusses why cosmopolitans, who have often been highly critical of prerogatives of state sovereignty, have good reason to endorse popular sovereignty over natural resources. Those who hope for more cosmopolitan institutions should see strengthening popular resource sovereignty as the most responsible path to achieving their own goals.

A New Hope

2018 ◽  
Author(s):  
Zoran Oklopcic
Keyword(s):  
Popular Sovereignty ◽  
The People ◽  
Collective Self ◽  
The Relationship ◽  
The Way

As the final chapter of the book, Chapter 10 confronts the limits of an imagination that is constitutional and constituent, as well as (e)utopian—oriented towards concrete visions of a better life. In doing so, the chapter confronts the role of Square, Triangle, and Circle—which subtly affect the way we think about legal hierarchy, popular sovereignty, and collective self-government. Building on that discussion, the chapter confronts the relationship between circularity, transparency, and iconography of ‘paradoxical’ origins of democratic constitutions. These representations are part of a broader morphology of imaginative obstacles that stand in the way of a more expansive constituent imagination. The second part of the chapter focuses on the most important five—Anathema, Nebula, Utopia, Aporia, and Tabula—and closes with the discussion of Ernst Bloch’s ‘wishful images’ and the ways in which manifold ‘diagrams of hope and purpose’ beyond the people may help make them attractive again.

Sovereignty

2019 ◽  
Author(s):  
Hermann Heller
Keyword(s):  
International Law ◽  
Political Theory ◽  
Weimar Republic ◽  
Political System ◽  
Popular Sovereignty ◽  
Liberal Democracies ◽  
National Sovereignty ◽  
Nation States ◽  
The People ◽  
Pluralistic World

This 1927 work addresses the paradox of sovereignty, that is, how the sovereign can be both the highest authority and subject to law. Unlike Kelsen and Schmitt who seek to dissolve the paradox, this text sees the tensions that the paradox highlights as an essential part of a society ruled by law. Sovereignty, in the sense of national sovereignty, is often perceived in liberal democracies today as being under threat, or at least “in transition,” as power devolves from nation states to international bodies. This threat to national sovereignty is at the same time considered a threat to a different idea of sovereignty, popular sovereignty—the sovereignty of “the people”—as important decisions seem increasingly to be made by institutions outside of a country’s political system or by elite-dominated institutions within. This text was written in 1927 amidst the very similar tensions of the Weimar Republic. In an exploration of history, constitutional and political theory, and international law, it shows that democrats must defend a legal idea of sovereignty suitable for a pluralistic world.

Political Community in Revolutionary Pennsylvania, 1774-1800

2018 ◽  
Author(s):  
Kenneth Owen
Keyword(s):  
American Revolution ◽  
Political Process ◽  
The United States ◽  
Political Community ◽  
Popular Sovereignty ◽  
Power Structures ◽  
Early American ◽  
The People ◽  
Governmental Institutions ◽  
Popular Mobilization

Political Community in Revolutionary Pennsylvania challenges the ways we understand popular sovereignty in the American Revolution, demonstrating how ordinary citizens wielded significant political power. Previous histories place undue focus on either elite political thought or class analysis; on the contrary, citizens cared most about the establishment of a representative, publicly legitimate political process. Popular activism constrained leaders, creating a system through which governmental actions were made more representative of the will of the community. This book analyzes developments in Pennsylvania from 1774, and the passage of the Intolerable Acts, through to 1800 and the election of Thomas Jefferson. It examines the animating philosophy of the Pennsylvania state constitution of 1776, a “radical manifesto” espousing a vision of popular sovereignty in which government was devolved from the people only where necessary. The legitimacy of governmental institutions rested on their demonstration that they operated through popular consent, expressed in a variety of forms of popular mobilization. This book examines how early Americans interacted with the power structures shaping the world in which they lived, recasting the nature of the American Revolution and illuminating the origins of modern American political practice. It investigates how political mobilization operated inside and outside formal channels of government. Mechanisms of popular mobilization helped a diverse population mediate with governmental institutions, providing the foundation of early American power. Histories that ignore this relationship miss one of the most significant founding characteristics of the United States—the importance of popular politics and democratic practice in the establishment of American government.

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