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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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

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

(p.11) Chapter One The Fiction of “We the People”: Is the Constitution Binding on Us?
Restoring the Lost Constitution

Randy E. Barnett

Princeton University Press

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.

Keywords:   consent of the governed, Constitution, We the People, constitutional legitimacy, popular sovereignty, rights, law

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