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

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

Chapter:
(p.32) Chapter Two Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People
Source:
Restoring the Lost Constitution
Author(s):

Randy E. Barnett

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691159737.003.0003

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.”

Keywords:   constitutional legitimacy, U.S. Constitution, popular sovereignty, divine right, democracy, majoritarianism, consent, laws, necessary and proper

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