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U.S. Constitution Title: INDIVIDUAL POPULAR SOVEREIGNTY AND PRESUMED CONSENT INDIVIDUAL POPULAR SOVEREIGNTY AND PRESUMED CONSENT Randy Barnett In Restoring the Lost Constitution, I identify a path to legitimacy in which laws imposed on nonconsenting persons can be binding in conscience. For the “consent of the governed” to matter in the first instance, we must assume (and there is also good reason to conclude that “first come rights, then comes government.” As the Declaration of Independence stated: “We hold these truths to be self- evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.” It then affirmed: “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” It is these “other” natural rights that the Constitution expressly describes in the Ninth Amendment as “retained by the People.” The assumption that “first come rights, then comes government,” and that the first duty of government is “to secure” the rights retained by the People, helps explain how lawmaking can be legitimate in the absence of consent. For a law would be just, and therefore binding in conscience, if its restrictions on a citizen’s freedom were (1) necessary to protect the rights of others, and (2) proper insofar as they did not violate the preexisting rights of the persons on whom they were imposed. The second of these requirements dispenses with the need to obtain the consent of the person on whom a law is imposed. After all, if a law has not violated a person’s rights, then that person’s consent is simply not required. The first requirement supplies the element of obligation. If a law is necessary to protect the rights of others, then it is obligatory for the person on whom it is imposed for the same normative reasons that the underlying rights are obligatory. In this way the pre-existing obligation to respect the rights of others supplies the duty to obey such a law. Laws can bind in conscience, at least prima facie, when promulgated by a legal system with procedural assurances that this standard is likely to be met. A constitution that provides such procedures can be called “legitimate.” A written constitution that binds lawmakers and law enforcers bolsters the reliability of these procedures. In the first edition of Restoring the Lost Constitution, I framed this nonconsensual source of constitutionality as superior to a majoritarian conception of popular sovereignty that fictitiously assumes the consent of the minority. Since it was published, however, I came to learn of an alternative to collective or majoritarian popular sovereignty that was in existence at the time of the Founding, a conception of popular sovereignty that is consistent with the approach to constitutional legitimacy I previously developed. This conception does not rest on the collective consent of a body of people—which in practice means consent by a majority of those who are allowed to vote—but is instead based on the individual sovereignty of each person. This conception of popular sovereignty, based on the consent of each and every person who is supposed to be bound by the laws, was most strikingly presented in the first great constitutional case to be decided by the Supreme Court: Chisholm v. Georgia. A. Individual Popular Sovereignty In Chisholm, the Supreme Court, by a vote of four to one, rejected the state of Georgia’s assertion of sovereign immunity as a defense against a suit in federal court for breach of contract brought against it by an individual citizen of another state. The majority concluded instead that members of the public could sue state governments because “sovereignty” rests with the people rather than with state governments. The Justices in Chisholm affirmed that, in America, the states are not kings, and their legislatures are not the supreme successors to the Crown. Justice James Wilson began his opinion by stressing that the Constitution nowhere uses the term “sovereignty.” “To the Constitution of the United States the term Sovereign, is totally unknown,” he wrote. There was only one place in the Constitution “where it could have been used with propriety,” he observed, referring to the Preamble. “But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves ‘Sovereign’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.” Wilson contended that if the term sovereign is to be used at all it should refer to the individual person. “[L]aws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.” In other words, obedience must rest on the consent of the individual person who is asked to obey the law. Wilson believed that the only reason “a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorised by those laws.” For Wilson, then, states were nothing more than an aggregate of free individuals. “If one free man, an original sovereign,” may bind himself to the jurisdiction of the court, “why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired.” And he was not alone in locating sovereignty in the individual person. In his opinion in Chisholm, Chief Justice John Jay referred tellingly to “the joint and equal sovereigns of this country.” Jay affirmed the “great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined.”83 Denying individuals a right to sue a state, while allowing them to sue municipalities, “would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes.” Neither Wilson nor Jay’s individualist conception of popular sovereignty conforms to the modern notion of popular sovereignty as a purely “collective” concept. Their opinions in Chisholm present the radical yet fundamental idea that if anyone is sovereign, it is “We the People” as individuals, not Congress, state legislatures, or a majority of the citizenry. I am not claiming that Wilson and Jay’s conception of individual popular sovereignty stood alone at the Founding. Nor am I claiming anything about the original meaning of the Constitution to which, as Wilson observed, the term “sovereign” is “totally unknown.”85 Instead, I offer it to make sense of an approach to the “consent of the governed” that also existed at the time of the Founding—an approach that further supports the natural rights conception of constitutional legitimacy that I summarized above. If it is the people as individuals who are sovereign, and the people as individuals retain their preexisting rights, as is affirmed in the text of the Constitution by the Ninth Amendment,86 and if it is the case that the existing government lacks the express consent of every person, then we are faced with the issue of what the people could have consented to. Put another way, to the extent any government claims to be based on the consent of the governed without obtaining each person’s express consent, we need to ask to what each person could be said to have consented. B. Presumed Consent How then do we reconcile the individual conception of popular sovereignty based on the consent of each and every person with the fact that such unanimous consent to governance is never expressly solicited and would be impossible to obtain? As it happens, there is an oft-overlooked answer to this question that can be found at the time of the Founding and long before. If we start with the proposition that it is the people as individuals who are sovereign, and that they retain their preexisting rights unless they are expressly delegated to their agents, then in the absence of such express consent, we must ask to what each person could be presumed to have consented. In his 1845 book, The Unconstitutionality of Slavery, Lysander Spooner contended that, since the consent of the governed “exists only in theory,”87 the people cannot be presumed to have given up their preexisting rights. “Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.”88 But Spooner was far from the first to make this argument. John Locke, in his Second Treatise, observed that “men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require.”89 He then considered the scope of the legislative or police power that is given up, employing an analysis very similar to Spooner’s: [Y]et it being only with an intention in every one the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse) the power of the Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good; but is obliged to secure every ones [sic] Property, by providing against those three defects . . . that made the State of Nature so unsafe and uneasie [sic].90 Like Spooner, Locke asked what a “rational creature can be supposed” to have consented to, in the absence of any explicit consent, when leaving the state of nature to enter civil society. And the individual can only be supposed to have consented to the common good, which consists of the protection of each person’s life, liberty, and property. This idea of “supposed” or presumed consent appears again in Attorney General Edmund Randolph’s opinion on the constitutionality of a national bank. In addressing whether the power to incorporate a national bank is among the implied powers of Congress, Randolph observed that a legislature governed by a written constitution without an express “demarcation of powers, may, perhaps, be presumed to be left at large, as to all authority which is communicable by the people,” provided that such authority “does not affect any of those paramount rights, which a free people cannot be supposed to confide even to their representatives.”91 Once again, given the sovereignty of the people as individuals, the people cannot “be presumed” or “supposed” to have confided in their legislature any power to violate their fundamental rights. But perhaps the most striking use of this notion of the presumed or supposed consent of the governed appears in the 1798 Supreme Court case of Calder v. Bull. Calder has become known for its clash between Justices Samuel Chase and James Iredell. Chase’s opinion is famous for its assertion of “the great first principles of the social compact” that restrict the “rightful exercise of legislative authority,”92 and Iredell’s for its far grander conception of legislative power in the absence of any express constitutional limit. Generally overlooked is the fact that, like Locke, Randolph, and Spooner, Chase too employs the notion of supposed or presumed consent. Justice Chase begins by providing examples of laws that violate these “great first principles,” such as a law “that punished a citizen for an innocent action,” or “a law that destroys, or impairs, the lawful private contracts of citizens,” or “a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B.” He then contends that the enactment of such laws is beyond the legislative power because “it is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.”93 To be sure, the concept of natural justice or natural rights lurks in the background of all these considerations of “presumed consent,” but only as a way of interpreting the scope of legislative power in the absence of an express consent. When combined with the concept of individual popular sovereignty, all these invocations of “presumed,” “supposed,” or “theoretical” consent cast the issue of popular sovereignty and the “consent of the governed” in a new light that supports the approach to constitutional legitimacy I present in Restoring the Lost Constitution. We can separate the steps of this argument as follows: · First, sovereignty rests not in the government, but in the people themselves considered as individuals; · Second, to be legitimate, the government must receive the consent of all these sovereign individuals; · Third, in the absence of express consent by each person, however, the only consent that can be attributed to everyone is consent only to such powers that do not violate their retained fundamental rights; · Fourth, protecting these rights retained by the people assures that the government actually conforms to the consent it claims as the source of its just powers; finally · Fifth, only if such protection is effective will its commands bind in conscience on the individual. RECONCEIVING ARTICLE V AS A CHECK ON THE GOVERNORS If sovereignty resides in each and every individual person, then two propositions follow: · The sovereign people themselves never rule. · But the sovereign people always require effective protection from those who do. The only way to justify rule by some subset of the sovereign people—whether a supermajority, simple majority, majority of a group of “legislators,” or a king and his court—is by providing effective assurance that the measures the rulers impose on the people as a whole do not violate the rights retained by any person or group of persons. In short, given the ultimate sovereignty of the people, majorities and super- majorities are not the solutions to the problem of constitutional legitimacy; in a republican form of government, they are the problem to be solved. James Madison explained this quite clearly: But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.94 In The Federalist No. 10, Madison famously contended that the rights retained by the people are at risk from factions, be they a minority or majority of the whole. “By a faction,” he wrote, “I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."
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The article above is an excerpt from a much longer essay by Randy Barnett, here: ---
In other words, might makes right.
In the first edition of Restoring the Lost Constitution, I framed this nonconsensual source of constitutionality as superior to a majoritarian conception of popular sovereignty that fictitiously assumes the consent of the minority. In context, Barnett says the opposite. -- But perhaps you didn't read, or are unable to understand his points?
From my perspective as an Infidel, I can see Madison's point.
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