Quotation of the Day…

by Don Boudreaux on September 17, 2013

in Law

… is from page 11 of Georgetown University Law Professor Randy Barnett’s rigorously reasoned and deeply informed 2004 volume, Restoring the Lost Constitution:

I challenge the idea, sometimes referred to as “popular sovereignty,” that the Constitution of the United States was or is legitimate because it was established by “We the People” or the “consent of the governed.”  I deny that the conditions needed to make this claim valid existed at the time the Constitution was adopted or ever could exist.  Though “the People” can surely be bound by their consent, this consent must be real, not fictional – unanimous, not majoritarian.  Anything less that unanimous consent simply cannot bind nonconsenting persons.

Constitutional legitimacy, therefore, requires something more – as Randy explains well in his book (that is dedicated to James Madison and Lysander Spooner).

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