The Original Understanding of Constitutional Legitimacy

Abstract

This Article argues that three influential schools of originalism, which we might label as libertarian, progressive, and conservative, adhere to particular understandings of constitutional legitimacy, which then inform their particular constitutional hermeneutics. The Article demonstrates that as originally understood by the Founders, however, constitutional legitimacy depended on all three conceptions advocated by these schools of thought — that is, the Constitution had to protect natural rights, it had to enable self-government, and it had to be ratified by popular sovereignty. Further, the Article gives considerable treatment — remarkably for the first time in the law review literature — to James Madison’s letter in response to Thomas Jefferson’s famous “dead hand of the past” argument, in which we might find an understudied ground for constitutional obedience: prudence.

The discussion on the Founders’ original understanding of constitutional legitimacy provides two principal insights: First, it provides us with a more holistic case for constitutional obedience than several modern originalist theories whose narrower theories of legitimacy may be unpersuasive standing alone. Second, it demonstrates that broader hermeneutics are necessary as an originalist matter, or simply because we find the Founders’ understanding more persuasive. The Article will also suggest, in the conclusion, that the more holistic account of constitutional legitimacy might provide a new justification for originalism.

Keywords: constitutional legitimacy, originalism, presumption of liberty, presumption of constitutionality, living originalism, Founding, prudence