Russell Hardin
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198290841
- eISBN:
- 9780191599415
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198290845.003.0004
- Subject:
- Political Science, Political Theory
We can divide consent theory into two branches: constitutional and post‐constitutional. Popular sovereignty and social contract theories fit largely into the first branch; democracy fits in the ...
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We can divide consent theory into two branches: constitutional and post‐constitutional. Popular sovereignty and social contract theories fit largely into the first branch; democracy fits in the second. One might appeal to popular sovereignty or contractarian consent in proposing to change a constitution, although in actual practice even constitutional design must be done by some kind of procedure that would hardly fit a full consent account. Constitutions typically restrict the scope of democracy—otherwise there would be little need for creating the many blocking institutions that constitutions typically mandate.Less
We can divide consent theory into two branches: constitutional and post‐constitutional. Popular sovereignty and social contract theories fit largely into the first branch; democracy fits in the second. One might appeal to popular sovereignty or contractarian consent in proposing to change a constitution, although in actual practice even constitutional design must be done by some kind of procedure that would hardly fit a full consent account. Constitutions typically restrict the scope of democracy—otherwise there would be little need for creating the many blocking institutions that constitutions typically mandate.
Christopher K. Ansell
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199772438
- eISBN:
- 9780199918997
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199772438.003.0008
- Subject:
- Political Science, Political Theory
This chapter challenges a “monistic” conception of sovereignty that envisions public action as flowing, in an unbroken chain, from popular sovereignty. This monistic conception imposes strong ...
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This chapter challenges a “monistic” conception of sovereignty that envisions public action as flowing, in an unbroken chain, from popular sovereignty. This monistic conception imposes strong hierarchical accountability on public agencies and discourages them from building more bottom-up consent for strategic problem-solving. To build this bottom-up consent, public agencies must be more embedded in the communities they serve. Such embeddedness, however, raises serious concerns about corruption and fair representation. The chapter explores the possibilities for “embedded autonomy,” where agencies maintain their autonomy while engaging more directly with external stakeholders.Less
This chapter challenges a “monistic” conception of sovereignty that envisions public action as flowing, in an unbroken chain, from popular sovereignty. This monistic conception imposes strong hierarchical accountability on public agencies and discourages them from building more bottom-up consent for strategic problem-solving. To build this bottom-up consent, public agencies must be more embedded in the communities they serve. Such embeddedness, however, raises serious concerns about corruption and fair representation. The chapter explores the possibilities for “embedded autonomy,” where agencies maintain their autonomy while engaging more directly with external stakeholders.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0016
- Subject:
- Law, Constitutional and Administrative Law
In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and ...
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In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.Less
In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.
Giandomenico Majone
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199274307
- eISBN:
- 9780191603310
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274304.003.0002
- Subject:
- Political Science, European Union
Democracy is an essential condition of membership in the EU, yet the EU itself is said to suffer from a serious democratic deficit. The paradox is more apparent than real — one cannot safely ...
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Democracy is an essential condition of membership in the EU, yet the EU itself is said to suffer from a serious democratic deficit. The paradox is more apparent than real — one cannot safely extrapolate democratic norms from the national to the supranational level. The members of the EU are not individuals but corporate bodies, and democratic principles do not directly apply to such a polity. Arguments about Europe’s democratic deficit implicitly assume that the EU must eventually become a full-fledged federal state, but this is not what the majority of European voters apparently want. At best, federation is only one of several possible outcomes of the integration process. In reality, the democratic deficit is the price we pay for attempting to pursue political objectives by non-political means.Less
Democracy is an essential condition of membership in the EU, yet the EU itself is said to suffer from a serious democratic deficit. The paradox is more apparent than real — one cannot safely extrapolate democratic norms from the national to the supranational level. The members of the EU are not individuals but corporate bodies, and democratic principles do not directly apply to such a polity. Arguments about Europe’s democratic deficit implicitly assume that the EU must eventually become a full-fledged federal state, but this is not what the majority of European voters apparently want. At best, federation is only one of several possible outcomes of the integration process. In reality, the democratic deficit is the price we pay for attempting to pursue political objectives by non-political means.
Ray A. Moore and Donald L. Robinson
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195151169
- eISBN:
- 9780199833917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019515116X.003.0018
- Subject:
- Political Science, Democratization
The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special ...
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The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special subcommittee. It was assigned the delicate task of combing through the text and, where necessary, preparing amendments, based on the preceding weeks’ discussions. Ch. 16 recounts how the subcommittee – under the watchful eye of Charles Kades, deputy director of SCAP's Government Section (GS) – devoted particular attention to the preamble, the correct terms to express popular sovereignty, and Article 9, renouncing war and armed forces. It was during this period that Article 9 was significantly amended. Ch. 16 carefully examines the intentions of the framers of these amendments.Less
The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special subcommittee. It was assigned the delicate task of combing through the text and, where necessary, preparing amendments, based on the preceding weeks’ discussions. Ch. 16 recounts how the subcommittee – under the watchful eye of Charles Kades, deputy director of SCAP's Government Section (GS) – devoted particular attention to the preamble, the correct terms to express popular sovereignty, and Article 9, renouncing war and armed forces. It was during this period that Article 9 was significantly amended. Ch. 16 carefully examines the intentions of the framers of these amendments.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines what it takes to achieve constitutional legitimacy in the absence of consent by focusing on the effort of those who drafted and adopted the Constitution to constrain the fiction ...
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This chapter examines what it takes to achieve constitutional legitimacy in the absence of consent by focusing on the effort of those who drafted and adopted the Constitution to constrain the fiction of popular sovereignty they themselves accepted. The fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. If the king obtained his authority from God, the Commons gained its authority from the people. Despite their rhetorical commitment to “popular sovereignty,” by the time the Constitution was written, its framers were convinced that pure majority rule or democracy was a bad idea. The chapter first considers democratic majoritarianism and and what James Madison called “the problem of faction” before discussing constitutional legitimacy in the absence of consent. It argues that a constitutional regime is legitimate only if it provides sufficient assurances that the laws it produces are “necessary and proper.”Less
This chapter examines what it takes to achieve constitutional legitimacy in the absence of consent by focusing on the effort of those who drafted and adopted the Constitution to constrain the fiction of popular sovereignty they themselves accepted. The fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. If the king obtained his authority from God, the Commons gained its authority from the people. Despite their rhetorical commitment to “popular sovereignty,” by the time the Constitution was written, its framers were convinced that pure majority rule or democracy was a bad idea. The chapter first considers democratic majoritarianism and and what James Madison called “the problem of faction” before discussing constitutional legitimacy in the absence of consent. It argues that a constitutional regime is legitimate only if it provides sufficient assurances that the laws it produces are “necessary and proper.”
Daniel Lee
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198745167
- eISBN:
- 9780191806094
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198745167.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Human Rights and Immigration
Popular sovereignty—the doctrine that the public powers of the state originate in a concessive grant of power from ‘the people’—is perhaps the cardinal doctrine of modern constitutional theory. Its ...
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Popular sovereignty—the doctrine that the public powers of the state originate in a concessive grant of power from ‘the people’—is perhaps the cardinal doctrine of modern constitutional theory. Its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, and it functions as a model in the design of modern constitutions, by locating the source of such public power in a putative ‘We the People’ anterior to public institutions. This book explores the intellectual origins of this constitutional doctrine in later medieval and early modern legal thought. Key to the operation of this doctrine was the legal science of Roman law, long regarded as the principal source for modern legal reasoning in Western jurisprudence. Roman law had a profound impact on the major architects of popular sovereignty doctrine, such as Baldus de Ubaldis, François Hotman, Jean Bodin, Johannes Althusius, and Hugo Grotius. The book illustrates how these jurists strategically integrated the juridical language of obligations, property, personality, as well as the model of the Roman constitution, into their analysis, locating the right of sovereignty in the people at large, as the exclusive owners of state authority. In recovering the origins of popular sovereignty in this way, the book demonstrates the vital importance of Roman law as one of the major sources of modern constitutionalism.Less
Popular sovereignty—the doctrine that the public powers of the state originate in a concessive grant of power from ‘the people’—is perhaps the cardinal doctrine of modern constitutional theory. Its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, and it functions as a model in the design of modern constitutions, by locating the source of such public power in a putative ‘We the People’ anterior to public institutions. This book explores the intellectual origins of this constitutional doctrine in later medieval and early modern legal thought. Key to the operation of this doctrine was the legal science of Roman law, long regarded as the principal source for modern legal reasoning in Western jurisprudence. Roman law had a profound impact on the major architects of popular sovereignty doctrine, such as Baldus de Ubaldis, François Hotman, Jean Bodin, Johannes Althusius, and Hugo Grotius. The book illustrates how these jurists strategically integrated the juridical language of obligations, property, personality, as well as the model of the Roman constitution, into their analysis, locating the right of sovereignty in the people at large, as the exclusive owners of state authority. In recovering the origins of popular sovereignty in this way, the book demonstrates the vital importance of Roman law as one of the major sources of modern constitutionalism.
Sarbani Sen
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071600
- eISBN:
- 9780199080045
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071600.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The relationship between constitutionalism and popular sovereignty in the Indian context is the critical focus of this original work in political theory, jurisprudence, and constitutionalism. This ...
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The relationship between constitutionalism and popular sovereignty in the Indian context is the critical focus of this original work in political theory, jurisprudence, and constitutionalism. This book examines fundamental issues about the basic law of the land. The author contends that it is necessary to go beyond viewing democracy merely as the vesting of fundamental authority in institutions of elected representatives. It examines the founding of the Indian constitution and the emergence of its text in the background of the ideas of leading constitutional law theorists, such as Habermas and Ackerman. The author suggests that the constitution can be more meaningfully understood by adopting a more complex concept of democracy—one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government. She establishes that underlying the bedrock doctrine of the basic structure of the constitution are fundamental questions about the relationship between constitutionalism and popular sovereignty. The text is a conscious effort to institutionalize the country's revolutionary experience during its anti-colonial struggle.Less
The relationship between constitutionalism and popular sovereignty in the Indian context is the critical focus of this original work in political theory, jurisprudence, and constitutionalism. This book examines fundamental issues about the basic law of the land. The author contends that it is necessary to go beyond viewing democracy merely as the vesting of fundamental authority in institutions of elected representatives. It examines the founding of the Indian constitution and the emergence of its text in the background of the ideas of leading constitutional law theorists, such as Habermas and Ackerman. The author suggests that the constitution can be more meaningfully understood by adopting a more complex concept of democracy—one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government. She establishes that underlying the bedrock doctrine of the basic structure of the constitution are fundamental questions about the relationship between constitutionalism and popular sovereignty. The text is a conscious effort to institutionalize the country's revolutionary experience during its anti-colonial struggle.
John Kane and Haig Patapan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199650477
- eISBN:
- 9780191739071
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199650477.001.0001
- Subject:
- Political Science, Comparative Politics, Political Theory
The Democratic Leader argues that leaders occupy a unique place in democracies. The foundational principle of democracy—popular sovereignty—implies that the people must rule. Yet the people can rule ...
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The Democratic Leader argues that leaders occupy a unique place in democracies. The foundational principle of democracy—popular sovereignty—implies that the people must rule. Yet the people can rule only by granting a trust of authority to individual leaders. This produces a tension that results in a unique type of leadership, specifically, democratic leadership. Democratic leaders, once they have the confidence and authority of the people, are very powerful because they rule through consent and not through fear. Yet in many respects, they are the weakest of leaders, because democrats distrust leaders and impose on them a range of far-reaching constraints—legal, moral, and political. The democratic leader must perpetually navigate the powerful and contending forces of public cynicism—founded in the suspicion that all leaders are self-interested power-seekers—and of public idealism—founded in a perennial hope that good leaders will act nobly by sacrificing for the people. The Democratic Leader suggests that the inherent difficulty of this form of leadership cannot be resolved, and indeed is necessary for securing the strength and stability of democracy.Less
The Democratic Leader argues that leaders occupy a unique place in democracies. The foundational principle of democracy—popular sovereignty—implies that the people must rule. Yet the people can rule only by granting a trust of authority to individual leaders. This produces a tension that results in a unique type of leadership, specifically, democratic leadership. Democratic leaders, once they have the confidence and authority of the people, are very powerful because they rule through consent and not through fear. Yet in many respects, they are the weakest of leaders, because democrats distrust leaders and impose on them a range of far-reaching constraints—legal, moral, and political. The democratic leader must perpetually navigate the powerful and contending forces of public cynicism—founded in the suspicion that all leaders are self-interested power-seekers—and of public idealism—founded in a perennial hope that good leaders will act nobly by sacrificing for the people. The Democratic Leader suggests that the inherent difficulty of this form of leadership cannot be resolved, and indeed is necessary for securing the strength and stability of democracy.
Richard S. Katz
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780195044294
- eISBN:
- 9780199854752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195044294.003.0003
- Subject:
- Political Science, Comparative Politics
This chapter examines the concept of popular sovereignty and what exactly it means for the people to rule in relation to democracy and elections. One definition of popular sovereignty takes ruling as ...
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This chapter examines the concept of popular sovereignty and what exactly it means for the people to rule in relation to democracy and elections. One definition of popular sovereignty takes ruling as a physical act to be performed by the people themselves, rather than something that is delegated to a smaller political class. Alternatively, the people could be said to rule if policy is made and implemented so the “the will of the people” is carried into effect.Less
This chapter examines the concept of popular sovereignty and what exactly it means for the people to rule in relation to democracy and elections. One definition of popular sovereignty takes ruling as a physical act to be performed by the people themselves, rather than something that is delegated to a smaller political class. Alternatively, the people could be said to rule if policy is made and implemented so the “the will of the people” is carried into effect.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish ...
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This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.Less
This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.
Craig T. Borowiak
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199778256
- eISBN:
- 9780199919086
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199778256.001.0001
- Subject:
- Political Science, Political Theory, International Relations and Politics
Situated at the intersection of democratic theory and international studies, Accountability and Democracy provides an in-depth critical analysis of the concept “democratic accountability.” The book ...
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Situated at the intersection of democratic theory and international studies, Accountability and Democracy provides an in-depth critical analysis of the concept “democratic accountability.” The book proceeds with separate chapters on accountability as found in the U.S. Ratification debates, agency theory, ancient Athenian democracy, theories of deliberative democracy, capitalist markets, and cosmopolitan democracy. Through an engagement with these different traditions and contexts, the book paints a picture of democratic accountability as a multidimensional concept harboring competing imperatives and diverse instantiations. It both engages conventional electoral models of accountability and moves beyond them by situating democratic accountability within more deliberative, participatory and agonistic contexts. Contrary to dominant views that emphasize discipline and control, the book describes democratic accountability as a source of mutuality, community, and political transformation. The book also challenges deep-seated understandings of democratic accountability as an expression of popular sovereignty. It instead argues that accountable governance is incompatible with all claims to ultimate authority, regardless of whether they refer to the demos, the state, or cosmopolitan public law. Rather than conceiving of democratic accountability as a way to legitimize a secure and sovereign political order, the book contends that destabilization and democratic insurgence are indispensable and often neglected facets of democratic accountability practices.Less
Situated at the intersection of democratic theory and international studies, Accountability and Democracy provides an in-depth critical analysis of the concept “democratic accountability.” The book proceeds with separate chapters on accountability as found in the U.S. Ratification debates, agency theory, ancient Athenian democracy, theories of deliberative democracy, capitalist markets, and cosmopolitan democracy. Through an engagement with these different traditions and contexts, the book paints a picture of democratic accountability as a multidimensional concept harboring competing imperatives and diverse instantiations. It both engages conventional electoral models of accountability and moves beyond them by situating democratic accountability within more deliberative, participatory and agonistic contexts. Contrary to dominant views that emphasize discipline and control, the book describes democratic accountability as a source of mutuality, community, and political transformation. The book also challenges deep-seated understandings of democratic accountability as an expression of popular sovereignty. It instead argues that accountable governance is incompatible with all claims to ultimate authority, regardless of whether they refer to the demos, the state, or cosmopolitan public law. Rather than conceiving of democratic accountability as a way to legitimize a secure and sovereign political order, the book contends that destabilization and democratic insurgence are indispensable and often neglected facets of democratic accountability practices.
Nicholas Wolterstorff and Terence Cuneo
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199558957
- eISBN:
- 9780191744808
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199558957.003.0010
- Subject:
- Philosophy, Political Philosophy, Philosophy of Religion
Nowadays the doctrine of popular sovereignty is usually ignored. If it is taken note of and understood, it is usually rejected, either because its implicit ontology is unacceptable to those of a ...
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Nowadays the doctrine of popular sovereignty is usually ignored. If it is taken note of and understood, it is usually rejected, either because its implicit ontology is unacceptable to those of a nominalist persuasion or because it is confused with another doctrine that emerged in the late medieval and early modern period, the doctrine of the consent of the governed. The project of this essay is to formulate the doctrine of popular sovereignty and free it from its association with the doctrine of the consent of the governed. The discussion of popular sovereignty takes the form of reflections on the work of Johannes Althusius (ca. 1557-1638).Less
Nowadays the doctrine of popular sovereignty is usually ignored. If it is taken note of and understood, it is usually rejected, either because its implicit ontology is unacceptable to those of a nominalist persuasion or because it is confused with another doctrine that emerged in the late medieval and early modern period, the doctrine of the consent of the governed. The project of this essay is to formulate the doctrine of popular sovereignty and free it from its association with the doctrine of the consent of the governed. The discussion of popular sovereignty takes the form of reflections on the work of Johannes Althusius (ca. 1557-1638).
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held ...
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This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.Less
This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following ...
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This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.Less
This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.
Stephen Tierney
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199592791
- eISBN:
- 9780191741067
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592791.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter considers a situation where the very constitutionality of holding a referendum is itself in question. It explores how at the heart of a number of disputes has been the claim that a ...
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This chapter considers a situation where the very constitutionality of holding a referendum is itself in question. It explores how at the heart of a number of disputes has been the claim that a particular referendum is in fact a constitutive act of popular sovereignty, which even if structured outside the normal pathways of constitutional process that otherwise might proscribe or at least closely circumscribe such an act, offers its own and, so the argument goes, higher source of constitutional legitimacy. Two examples of this situation are addressed. One is a separation of powers struggle, where one branch of government initiates a referendum in a way that threatens to supplant the existing balance of powers among institutions established by the constitution. The other is territorial disputes, which can arise in federal or even unitary states between the central organs of the state and sub-state actors.Less
This chapter considers a situation where the very constitutionality of holding a referendum is itself in question. It explores how at the heart of a number of disputes has been the claim that a particular referendum is in fact a constitutive act of popular sovereignty, which even if structured outside the normal pathways of constitutional process that otherwise might proscribe or at least closely circumscribe such an act, offers its own and, so the argument goes, higher source of constitutional legitimacy. Two examples of this situation are addressed. One is a separation of powers struggle, where one branch of government initiates a referendum in a way that threatens to supplant the existing balance of powers among institutions established by the constitution. The other is territorial disputes, which can arise in federal or even unitary states between the central organs of the state and sub-state actors.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially ...
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The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.Less
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Kurt T. Lash
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195372618
- eISBN:
- 9780199871742
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372618.003.05
- Subject:
- Law, Constitutional and Administrative Law
This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of ...
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This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of strict construction promised by the Federalists and declared in the Bill of Rights. The history recounted in this chapter provides important independent support for the idea that the founding generation understood “the people” of the Ninth and Tenth Amendments to refer to the sovereign people in the states—people who had delegated away important powers with the adoption of the Constitution, but who nevertheless retained their sovereign existence after 1787. This understanding of retained sovereignty included important assumptions about the proper construction of delegated federal power, including the delegated power of federal courts.Less
This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of strict construction promised by the Federalists and declared in the Bill of Rights. The history recounted in this chapter provides important independent support for the idea that the founding generation understood “the people” of the Ninth and Tenth Amendments to refer to the sovereign people in the states—people who had delegated away important powers with the adoption of the Constitution, but who nevertheless retained their sovereign existence after 1787. This understanding of retained sovereignty included important assumptions about the proper construction of delegated federal power, including the delegated power of federal courts.
PETER C. OLIVER
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780198268956
- eISBN:
- 9780191713200
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268956.003.0011
- Subject:
- Law, Constitutional and Administrative Law
This chapter begins with a detailed discussion of the attempts by constitutional commentators in Australia, Canada, and New Zealand to explain the fundamental changes that occurred in 1982 and 1986. ...
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This chapter begins with a detailed discussion of the attempts by constitutional commentators in Australia, Canada, and New Zealand to explain the fundamental changes that occurred in 1982 and 1986. While a great deal of descriptive writing was published at this time, this chapter focuses on those writers who attempted to explore more carefully the legal, political, and social forces that were at play.Less
This chapter begins with a detailed discussion of the attempts by constitutional commentators in Australia, Canada, and New Zealand to explain the fundamental changes that occurred in 1982 and 1986. While a great deal of descriptive writing was published at this time, this chapter focuses on those writers who attempted to explore more carefully the legal, political, and social forces that were at play.
Susan James
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199698127
- eISBN:
- 9780191740558
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698127.003.0012
- Subject:
- Philosophy, History of Philosophy, Political Philosophy
Working out how to devise a balance of power that will uphold liberty and security is the central task of politics; but modern republics can learn how to do this by turning to historical examples, ...
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Working out how to devise a balance of power that will uphold liberty and security is the central task of politics; but modern republics can learn how to do this by turning to historical examples, such as the ancient Hebrew Republic founded by Moses and already extolled by Dutch writers such as Grotius and Cunaeus. Through an elaborate analysis of the Hebrew constitution and the history of the Hebrew state, Spinoza draws a number of morals and applies them to the Dutch Republic. He defends the benefits of popular sovereignty. He points to the advantages of a regime in which divine and civil law are one. Following in the footsteps of De La Court, he warns his compatriots of the dangers of monarchy, and he itemizes the dangers of a mixed constitutions where power is divided between States and Stadtholder.Less
Working out how to devise a balance of power that will uphold liberty and security is the central task of politics; but modern republics can learn how to do this by turning to historical examples, such as the ancient Hebrew Republic founded by Moses and already extolled by Dutch writers such as Grotius and Cunaeus. Through an elaborate analysis of the Hebrew constitution and the history of the Hebrew state, Spinoza draws a number of morals and applies them to the Dutch Republic. He defends the benefits of popular sovereignty. He points to the advantages of a regime in which divine and civil law are one. Following in the footsteps of De La Court, he warns his compatriots of the dangers of monarchy, and he itemizes the dangers of a mixed constitutions where power is divided between States and Stadtholder.
