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.

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.

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.

Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

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.”

scholarly journals Soberanía popular y concepción fiduciaria de los representantes públicos en Maximilien Robespierre

Daímon ◽  
2020 ◽  
pp. 81-96
Author(s):  
Pablo Scotto
Keyword(s):  
Political Economy ◽  
Political System ◽  
Natural Rights ◽  
Popular Sovereignty ◽  
Legislative Power ◽  
The People ◽  
Maximilien Robespierre

En su discurso del 10 de mayo de 1793 sobre la Constitución, Robespierre combina una concepción fiduciaria de los representantes públicos con una defensa de las virtudes de la democracia, el único sistema político en el que los gobernantes, al ser parte del pueblo, tienen los mismos intereses que este. Es esta defensa de la soberanía popular, así como de la primacía del poder legislativo, lo que constituye la esencia de su “economía política popular”, una expresión que toma de Rousseau. Para Robespierre, solamente esta clase de economía es compatible con una República cuyo primer objetivo sea la garantía de los derechos naturales del hombre. In his 10th May 1793 speech on the Constitution, Robespierre combines a fiduciary conception of public representatives with a defence of the virtues of democracy, the only political system in which the rulers, being part of the people, have the same interests as the latter. It is this defence of popular sovereignty, as well as of the primacy of the legislative power, what constitutes the essence of his “popular political economy”, an expression he takes from Rousseau. For Robespierre, only this kind of economy is compatible with a Republic whose first objective is to guarantee the natural rights of man.

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