Randy E. Barnett
Georgetown University Law Center
November 1, 2001
Boston Univ. School of Law Working Paper 01-19
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes law-making procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity.
Number of Pages in PDF File: 50
JEL Classification: K100, K10
Date posted: November 21, 2001