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We the People: Each and Every One

40 Pages Posted: 17 Apr 2014  

Randy E. Barnett

Georgetown University Law Center

Date Written: 2014

Abstract

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about "popular sovereignty," "popular consent," "higher law," and "higher-lawmaking." In this essay, I examine these claims and find them to be both highly under-theorized and deeply problematic. Ackerman’s own presentation of what he considers to be an informal process of constitutional amendment illustrates the importance of formality in protecting the rights retained by the people. And he assumes a collective conception of popular sovereignty without considering the serious normative problems raised by majority and supermajority rule. Rule by a majority or supermajority is not the answer to the problem of constitutional legitimacy; it is the problem that requires a normative solution. As an alternative to collective or majoritarian conceptions of popular sovereignty, I identify an individualist conception that yields fundamentally different conclusions about the purpose of a written constitution, including the importance of written amendments in safeguarding the rights retained by a sovereign people, each and every one. Finally, in a Postscript I respond to Professor Ackerman’s reply to this essay.

Keywords: popular sovereignty, presumed consent, popular consent, higher law, textualism, originalism

JEL Classification: K00, K30, K39

Suggested Citation

Barnett, Randy E., We the People: Each and Every One (2014). Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2424853

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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