AN ORIGINALISM FOR NONORIGINALISTS

Randy E. Barnett

Boston University School of Law Working Paper 01-19

Abstract

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. Neither "consent of the governed" nor "benefits received" justifies obedience. Instead, the legitimacy of any constitution should be assessed as one component of a lawmaking system. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. A prima facie duty of obedience exists either if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, if laws are made by procedures which assure that they are not unjust. 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.

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Randy E. Barnett Contact Information

rbarnett@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-3099

Presentation and Publication Information:

To be announced.


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