Randy E. Barnett*
The Columbia Law Review
(2003)
103 Colum. L. Rev. 111
-
Introduction
I. The Fiction of "We the People"
A. Basing the Duty to Obey the Law on Consent
B. Why "We the People" is a Fiction
C. The Dangerous Fiction of "We the People"
D. Diminishing the Danger: Ackerman's Dualist Democracy
II. Problematic Alternatives to "We the People"
A. Fair Play: Does the Receipt of Benefits Obligate Us to Obey?
B. Hypothetical Consent and the Importance of Rights
III. Constitutional Legitimacy Without Consent
A. More Consent, Less Freedom: Forgoing Rights
B. Less Consent, More Freedom: Protecting Rights
C. Clarifications and Caveats
Conclusion
Many
constitutional scholars offer their opinions about what the Constitution means. Some also have theories about how it should be interpreted - or more commonly how it should not be interpreted. But few stop to consider whether the
Constitution is legitimate. This is unfortunate because if the Constitution is not legitimate, then it is not clear why we should care what it means. And if it is legitimate, we may need to know why before we can settle on how to
interpret what it says. The Constitution's legitimacy cannot, then, simply be assumed. Unless we openly confront the question of its legitimacy, we will never know whether we
should obey it, improve upon it, or ignore it altogether. It is therefore extremely odd that, for all the verbiage published annually about the Constitution of the United States, one almost never hears the issue of its legitimacy
addressed systematically. Perhaps this is because, for many, the Constitution is sacred and any serious treatment of its legitimacy would have to admit the possibility that it does not pass muster. It is as though we are afraid to
find that there is no man behind the curtain. But another possible explanation exists as well. Despite their silence on the issue, and whatever may be in
their hearts, many constitutional scholars write as though we are not bound by the actual words of the Constitution. One way to slip these bonds is to imply that the original Constitution is illegitimate by repeating the refrain
that we cannot be bound by the "dead hand of the past" or by constantly invoking the various sins of the framers. By delegitimizing the original Constitution, such rhetoric seeks to free us from its constraints. Yet it is
both curious and significant that few come out and admit this. Why not? Perhaps because they seek the obedience of the faithful and, were their delegitimation
entirely successful, why on earth would anyone adhere to the commands of a law professor or philosopher or political scientist? For that matter, why adhere to the commands of the man or woman in a black robe, apart from the fact
that disobedience is likely to land you behind bars in an extremely treacherous environment? By subtly undercutting the legitimacy of the Constitution while at the same time preserving its much-revered form, a constitutional
scholar (or judge) can become the man behind the curtain, which perhaps is every scholar's fondest wish. Pay no attention to that bookish professor; the great and powerful Constitution has spoken!
This is a fraud on the public. Imply but do not say aloud that the Constitution is illegitimate so we need not follow what it actually says. Remake it or "interpret"
it as one wills and then, because it is The Constitution we are expounding, the masses will have to follow. This strategy also allows one to adopt a stance of moral superiority towards past generations without having to assume the
responsibility of proclaiming forthrightly that the document they wrote, by which the government rules, is of no authority. In this Essay, I will ask and answer
the question that others seem to fear: Why should anyone obey the commands issued by persons who claim to be authorized by the Constitution? In Part I, I examine the most commonly-held explanation for constitutional legitimacy -
that legitimacy flows from the fact that "We the People" have consented to this Constitution, a view commonly referred to as the "consent of the governed" or "popular sovereignty" - and explain why it
is wrong. It is wrong because it applies a standard of consent that no constitution can meet. Holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for
that of the text. This result is paradoxical since, notwithstanding the great expansion of suffrage since the nation's founding, any new and improved "interpretation" of the Constitution also will fail to be legitimated
by the "consent of the governed." In Part II, I then examine and reject the principal alternative to arguments based on the "consent of the governed": that the benefits citizens receive from a constitutional
order create a duty of fair play that obligates them, in return, to obey laws regardless of whether they consent to do so. Despite the failure of the
arguments based on consent or benefits received, I maintain that laws passed pursuant to a legitimate constitutional authority can still bind us in conscience - that is, create a moral duty of obedience. In Part III, I begin by
showing how, contrary to popular belief, unanimous consent to governance is both possible and pervasive, but also why constitutions like that of the United States could never receive the consent of "We the People." To be
binding in conscience without unanimous consent, a constitution must be legitimated in some other manner. I then explain why legitimacy in the absence of unanimous consent requires putting enforceable limits on government powers -
limits that would not be necessary if unanimous consent existed. I will contend that, if a constitution contains adequate procedures to assure that laws imposed
on nonconsenting persons are just (or not unjust), it can be legitimate even if not consented to unanimously, whereas a constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if
consented to by a majority. Indeed, only by realizing that the "consent of the governed" is a fiction can one appreciate the imperative that lawmakers respect the requirements of justice (whatever one believes those to
be). Though my thesis concerning legitimacy does depend on the claim that "justice" is independent of government fiat or whatever may happen to be commanded by positive law, it does not depend on acceptance of the particular conception of justice I defend elsewhere.
The procedural conception of legitimacy defended here is not reducible to a theory of justice and must be distinguished from the more familiar position
commonly attributed to "natural law" theorists that an unjust law is not (in some sense) a law. Rather, the concept of legitimacy I will be advancing stands between the justice of laws and their validity. It looks to whether the process by which a law is
determined to be valid is such as to warrant that the law is just. According to my usage, a valid law could be illegitimate and a legitimate law could be unjust. A law may be "valid" because produced in accordance with
all procedures required by a particular lawmaking system, but be "illegitimate" because these procedures are inadequate to provide assurances that the law is just. Such a law would not be binding in conscience. A law
might be "legitimate" because it is produced according to procedures that assure that it is just, and yet be "unjust" because in this case the procedures (which can never be perfect) have failed. Such a law
would be binding in conscience unless its injustice was somehow established.
My discussion of legitimacy will be normative and therefore also must be distinguished from more sociological or descriptive uses
of the term. Many discussions of legitimacy, perhaps even most, concern whether a constitution, lawmaking process, or government is perceived to be legitimate. While a widespread perception of legitimacy may be vital to obtaining
popular acquiescence to a legal regime, I am examining instead the conditions of legitimacy that need to exist for such a perception to be warranted. However,
one cannot appreciate the superiority of my approach, which raises questions of its own, without confronting squarely the severe and insurmountable problems with the conception of legitimacy based on the consent of the governed or
"We the People." So let us now pull back the curtain and see what we find.
The Constitution begins, "We
the People of the United States ... do ordain and establish this Constitution for the United States of America." 4
This was not idle rhetoric. These words were offered to claim legitimacy for the document that followed. The founders' claim of legitimacy was based, not on the divine right of kings, but on the right of "We the People" to govern themselves. They declared that "We the People" had exercised their rights and had manifested their consent to be ruled by the institutions "constituted" by this document. They made this declaration because they believed that the consent of "We the People" was necessary to establish a legitimate government and that, upon ratification, they would have gained this consent.
In this Part, I challenge the idea, sometimes referred to as "popular sovereignty," that the Constitution of the United States was or is legitimate because it was
established by "We the People" or the "consent of the governed." I deny that the conditions needed to make that claim valid as to this Constitution existed at the time it was adopted or ever could exist. Though
"the People" surely can be bound by their consent, this consent must be real, not fictional, and unanimous, not majoritarian. Any consent that is less than unanimous simply cannot bind nonconsenting persons. Moreover, the
fiction of "We the People" can prove dangerous in practice and can nurture criticisms of the Constitution's legitimacy that are unwarranted.
Sometimes we speak as though the Constitution itself is or is not binding on the citizenry. Yet, with one exception, 5
the Constitution does not purport to bind citizens. Rather, it binds the government itself. As Rufus King, delegate from Massachusetts, stated to the Constitutional Convention: "In the establishmt [sic] of Societies the Constitution was to the Legislature what the laws were to individuals."
6
While the Constitution is law, it is law in a secondary, not a primary sense. 7 It purports to bind government officials, not private individuals. The real question, then, is not whether the Constitution is
binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a "law" is validly enacted according to the Constitution mean that it binds one in
conscience? In other words, is one morally obligated to obey any law that is enacted according to constitutional procedures? Or is the only reason to obey a valid law the fear of punishment should one be caught for
disobedience? While some legal philosophers disagree, A lawmaking system is legitimate, then, if it creates commands that citizens have a moral duty to obey. A constitution is legitimate if it creates this type of
legal system. What quality must a constitution have to make it legitimate in this sense? Why do citizens have a duty to obey the commands of those who are designated by a constitution as lawmakers and enforcers? Most constitutional
scholars avoid explicitly addressing these questions. If pressed for an answer, many people would likely rely, at least initially, on the
"consent of the governed" or what is sometimes called "popular sovereignty."
While Bruce Ackerman emphatically denies that legislators govern in the name of the People,
To the contrary, in the next section, I will show that the concept of "We the People" is a fiction. I will demonstrate that constitutional legitimacy has not been conferred by either the individual or the collective consent of "We the People." As we shall see, the idea of the "consent of the governed" is not one but a series of different commonly-made arguments that must be distinguished and considered separately to see that none of them works. Though genuine consent, were it to exist, could give rise to a duty of obedience, the conditions necessary for "We the People" actually to consent to anything like the Constitution or amendments thereto have never existed and could never exist. 20 B. Why "We the People" is a Fiction
Those who justify a duty to obey the law on the basis of the "consent of the governed" must explain exactly how and when
"We the People" - you and I and everyone else - consented to obey the laws of the land. Some claim that by voting we consent to obey the resultant laws; others contend that residence or the failure to revolt or amend the
Constitution implies consent. All of these theories collapse upon close examination. Let us consider each in turn. 1. Does Voting Constitute Consent to Obey the Law? - Because we do not live in a direct democracy in which every
individual votes on every law, the most obvious answer is that we consent to obey the laws when we vote for the lawmakers who enact them. Just as a person empowers an agent to represent and bind him, when each of us votes for
persons to represent us in the legislature, have we not consented to obey the laws for which they, our designated agents, vote? Perhaps. But suppose the candidate we voted for was defeated. In what way did we consent to be
"represented" by his opponent, the very person we voted against? Or suppose the person we voted to be our representative votes against a particular law. In what way have we consented to be bound by a law to which we and
our representative were opposed? Well, consent does not work that way, comes the response. By choosing to vote, we have consented to the outcome of the
election, whatever it may be. In a game, you consent to play by the rules even when you are losing. People often consent to a process of binding arbitration in which they know, when they consent, that they may win or lose. By the
same token, when we participate in the electoral "game" or process, have we not committed ourselves to respect the outcome when our candidate loses?
But if consent is a message we communicate to others - "I consent to be bound by the outcome" - it is not clear that voting conveys such a message. Suppose some people vote, not because they consent to the outcome of an
election, but in "self-defense" - that is, they vote because they hope to influence, however marginally, the result so that it is not as unfavorable to them as it might otherwise be. For example, some people might vote
for the candidate who promises to support a tax cut, not because they consent to whatever the candidate might do in office, but solely because they hope to make a tax cut more likely and a tax increase less likely. They just want
to keep more of their earnings. The same holds true for persons who vote for candidates who support or oppose abortion rights. To infer from their having voted for such a candidate the message that these voters consent either to
the outcome of the election or to all the outcomes of the lawmaking process, whatever they may be, is to misunderstand the meaning of their voting. Yes, but by
using a vote to try to influence the outcome, has not a person chosen to participate in the process and does not this choice necessarily entail a consent to abide by the outcome? After all, should their candidate prevail,
voters would expect those who supported the losing candidate to go along with the winning side. Unless losing voters go along with the winners, the system would fail to accomplish anyone's objectives. While this may be so, it does
not follow from the fact that individual voters hope or expect others to go along if their candidate wins that they, by voting, have consented to be bound themselves. They still could be voting simply to minimize the threat to
their interests posed by the lawmaking process. Voting with this motivation in no way implies consent to any outcome that may result. Therefore, the simple act of voting does not tell us whether the voter consents to the outcome of
the election (and all that follows from it) or whether he or she is voting for different motives entirely. While I do not agree that consent to the outcome
follows from a vote cast in self-defense, suppose for the sake of argument that it does. What then do we say about the consent of those who abstain from voting altogether? They have not expressed any consent to the outcome of an
election, win or lose, or to the decisions of "representatives" for whom they have neither voted for nor against. Surely, on the argument presented so far, they are not bound to obey the law by virtue of their consent. "Not so fast," comes the reply. Provided that they were given the option of voting, those who have chosen not to participate in the election cannot
complain. Consider the right of a criminal defendant to be represented in court by a lawyer. Should he waive his right to counsel and represent himself, or even stand mute, he cannot object if he is convicted - provided he was
given the right to be represented. By the same token, so long as we are free to vote, if we fail to do so we cannot complain however the election comes out. After all, we had the opportunity to influence the outcome and we freely
chose not to employ it. The analogy to the right to an attorney is inapt. We do not find the defendant guilty because he consented to be so found. We find him
guilty because we conclude that he is guilty. There is no reason to expect or require a defendant to consent to his prosecution. Though some defendants might, most probably do not. We do not know and we do not care because their
consent does not matter. In contrast, the argument that we are bound to obey the laws because we have been given a right to vote is based on consent - the consent of the governed. It is not clear why, by giving someone the
opportunity to consent, say by voting, one may then infer consent from a refusal to vote. This point becomes clearer when one realizes that if consent is an
expression of a willingness to go along with something, then this presupposes it is possible to express unwillingness. Just as I can say, "I consent," there also must also be a way to say, "I do not consent." I
am not here talking about the likelihood of such a refusal or all the considerations that might leave one "little choice" but to consent. Rather, I am simply insisting that, just as the word "no" means the
opposite of "yes," for consent to have any meaning, it must be possible to say "I do not consent" instead of "I consent." But notice where the argument has taken us when consent to obey the laws
is based on voting:If we vote for a candidate and he wins, we have consented to the laws he votes for, but we have also consented to the laws he votes against. If we vote against the candidate and he wins, we have consented to the
laws he votes for or against. And if we do not vote at all, we have consented to the outcome of the process, whatever it may be. It is a queer sort of "consent" where there is no way to refuse. "Heads I win, tails
you lose," is the way to describe a rigged contest. "Heads" you consent, "tails" you consent, "didn't flip the coin," guess what? You consent as well. This is simply not consent. 2. Does Residency Imply Consent? - When confronted with this argument, many might say that I have attacked a straw man. No one argues that consent is to be inferred from voting, or from having a right to vote. While it is fair to say that one really does impliedly consent to obey one's employer, a sports official, the usher in the movie theater, etc., it is not at
all clear that one has consented to obey the laws of the United States simply by virtue of one's failure to emigrate. Certainly no one has ever asked me for my consent, nor you for yours. Unlike immigrants who become citizens by
taking an explicit oath, those born within the boundaries of the United States are not asked or required to take an oath promising to obey the laws. Consider
for a moment the implication of such a demand. Suppose one refused to take the oath. Would one then not be bound to obey the laws of the United States? Or would one then be expelled from the country? The latter prospect presupposes
that the person who is demanding we take an oath is an authority who has the right to expel us if we refuse, but it is his authority which is at issue in the first place and which supposedly depends on our consent. All of
this is quite circular. It is always hard to explain why a circular argument is circular (without sounding circular yourself), so consider this: Suppose I come
to you and demand that you sign an oath to respect my commands and you refuse. Upon your refusal I claim a right to your house and order you to leave the country. You rightly say that this is absurd. I have no authority to demand
that you take an oath, so you are free to ignore me. Your refusal to take the oath would in no way obligate you to leave the country. You would be right.
Because you have not consented to my authority, I am in no position to demand that you either take an oath or leave the country. Were the present legal system to demand we take an oath, it would be making exactly the same claim. If
the reason for taking an oath is to give the lawmakers authority by our consent, then unless they first have authority, they cannot demand that we take an oath. But if they already have the authority to demand we take an oath, then
the oath is unnecessary to establish that authority. That which is true for oaths is just as true for mere residence. It is equally unwarranted to base the
authority of lawmakers on the so-called tacit consent of everyone who chooses to live here and does not leave the country. For remaining in this country only tacitly indicates consent if you assume that the lawmakers have the
initial authority to demand your obedience or your exit in the first place. But it is their authority which is supposed to be justified on the basis of your and my tacit consent. So the problem with inferring consent from a refusal
to leave the country is that it presupposes that those who demand you leave already have authority over you. Your decision to stay, therefore, cannot be the source of their authority. And their authority, if it exists, does not rest on your consent.
Lea Brilmayer has dubbed this the "bootstrapping objection." These bootstrapping
objections to contractarian formation of a government do not necessarily arise when parties create governmental entities that lack territorial status. One might, for instance, agree with another individual that in the event of a
dispute both will submit to binding arbitration. Although the arbitrator's authority is established by consent, its authority is not territorial. In such cases, only the actual participants are bound; the extent of authority is not
defined territorially.
Thus, this objection will not apply to lawmaking jurisdictions based on actual unanimous consent as described in Part III. Besides its circularity, there is another
reason to reject the "love it or leave it" conception of consent. As I have already noted, "I consent" is a message we communicate to others. Saying the words "I consent" is fairly unambiguous (so long
as there is a way to express a refusal to consent). Depending on the context, there are few, if any, other meanings we can attach to these words. Simply remaining in the country, however, is highly ambiguous. It might mean you
consent to be bound by the laws enacted by Congress; or it might mean you have a good job and could not find a better one in another country; or it might mean that you speak only English; or it might mean that you do not want to
leave your loved ones behind. It is simply unwarranted to conclude from the mere act of remaining in the country that one has consented to all or any of the laws thereof.
Before the Holocaust, many Jews remained in Germany when they had a chance to escape; they chose to stay for a variety of reasons. Whatever else we can say about their
decision, we cannot conclude that, merely by their presence, they tacitly assented to the Nuremberg laws. I do not mean to put too much stress on this argument. There were many characteristics of the Third Reich that undermined its
authority and that made it substantially different in this regard from the United States. My point is merely that, simply by remaining in the country of their birth at a time they were free to leave, German Jews cannot be said to
have consented to whatever laws were enacted in that country. Neither have we. And, to return to the bootstrapping objection, the Nazis had no authority based on the consent of German Jews to put them to this choice.
3. Are We Bound by the Consent of the Founders? - Those who wish to base the duty to obey the laws on popular sovereignty or the "consent of the governed" will not give up at this point. They will then point to the fact
that the government of the United States predates the birth of everyone alive today. Because it was here first, it can demand that one consent to its authority or leave the country. Recall the quote from Michael McConnell with
which we began: "The people's representatives have a right to govern, so long as they do not transgress limits on their authority that are fairly traceable to the constitutional precommitments of the people
themselves ... ."
The initial source of the authority of "the people's representatives" was not your or my consent, goes the argument, but the consent of "We the People" at
the time the government was founded. It is that consent that got the government up and running legitimately, and it is that consent that empowers it to demand that you "love it or leave it." If you are born in and grow up
in someone else's house, for example, you must obey the rules of the owner or move out. Your continued presence constitutes consent to the authority of the homeowner.
Moreover, a popular sovereignty theorist also might make the somewhat different argument that the issue of "consent of the governed" was never whether you or I
consented to obey the laws by our vote or by remaining in the country. The real source of consent was the initial consent of the "We the People" to the formation of a government, and from then on, so long as the People do
not successfully revolt against the government, they can be said to have tacitly consented to it. It is the failure to overthrow the government, not the refusal to leave the country, that constitutes our consent to obey its
commands. Both arguments invoke the legitimate origin of the Constitution and rest that legitimacy on the consent of "We the People" of 1789. It is
this consent that gives the Constitution its initial legitimacy and which afterwards puts the onus on the citizenry to obey, leave the country, or successfully revolt. This shift in argument from our consent to the consent of
"We the People" at the time of the founding now requires us to ask who exactly it was that consented to the creation of this government and what it was that gave them the power to so bind themselves and their posterity.
We shall immediately see the exact same problems here as we saw with voting, only once removed. Now we are talking about deficiencies in other people's consent, not our own.
The Constitution was not approved by a unanimous vote, nor even by a majority of all persons in the country at the time. It was approved by a majority of delegates to
conventions in each state. These delegates were elected by a majority of those who voted for delegates. Were the delegates who voted against the Constitution (and those who voted for these dissenting delegates) bound by their
consent? And what about the majority of inhabitants who were not permitted to vote for any delegate? Though voting requirements varied with local jurisdictions, in no place could women, children, aliens, indentured servants, or
slaves vote. Moreover, it was not uncommon to have a property requirement that limited the voting rights of white males and free black males. In what sense can a small minority of inhabitants presuming to call themselves "We
the People" bind anyone but themselves? And assuming they could somehow bind everyone then alive, how could they bind, by their consent, their posterity?
One response to this, already suggested
above, is that the refusal to revolt or overthrow the government is what constitutes an ongoing tacit consent to obey the lawful commands of the system the founders created. But this is asking much too much of those who would
refuse their consent. Does one really manifest a consent to obey the commands of someone much more powerful simply because one does not physically resist the threat of violence for noncompliance? True, physical resistance is
evidence of a lack of consent, but if the cost of physical resistance is high enough, we cannot conclude that a passive nonresistance equals consent. The same
is true to a lesser extent about a failure to emigrate. The cost of emigration, in terms of what one gives up by leaving, is simply too high to infer from the failure to emigrate a consent to obey the laws of the land. Moreover,
the failure of enough people to band together to overthrow a government tells us nothing about the consent of the individual to be bound by the commands of the government, and therefore it tells us nothing about why laws are
binding on individuals. To argue otherwise is to assert that the majority, by its failure to revolt, can bind the minority to obey the laws. To this the popular
sovereignty theorist might respond that, when the Constitution provides less costly mechanisms for change - such as an amendment process - it is the failure to amend the Constitution, rather than the failure to revolt successfully
against the government, that manifests consent to obey all the laws. But this response is transparently inadequate. Whether a constitutional amendment requires a supermajority vote of both houses of Congress and approval by three
quarters of state legislatures, or a simple majority of the electorate, the failure to obtain an amendment through this process hardly indicates consent by anyone to the existing regime. A refusal to approve a change in the
Constitution implies neither that those who supported the defeated amendment nor those who opposed it consented to the existing regime. In the end, we are returned once more to the problem of inferring the consent of the minority
or of the individual from the consent of the majority. Consent simply does not work that way. We are now in a position to appreciate the fundamental reason why
none of the foregoing arguments based on consent succeeds: For consent to bind a person, there must be a way to say "no" as well as "yes," and that person himself or herself must have actually consented. Unless
we are speaking of children, incompetents, or principals who have actually consented to be represented by an agent, no person can literally consent for another. This fact poses an insurmountable obstacle for all theories of
legitimacy that base the "consent of the governed" on anything less than unanimity. As Jeffrey Reiman has argued, There is nothing inherently legitimating
about the electoral process. If anything, the electoral process is the problem, not the solution. ... The policies that emerge from the electoral process will be imposed on the dissenting minority against its wishes. And then,
rather than answering the question of legitimacy, this will raise the question with respect to those dissenters. Why are the exercises of power approved by the majority against the wishes of (and potentially prohibiting the desired
actions of) the minority obligatory with respect to the minority? Why are such exercises of power not simply a matter of the majority tyrannizing the minority? 4. Why Acquiescence Does Not Equal Consent. - The appeal of arguments based
on tacit consent dies hard, however, and perhaps this is the reason: Can we not say that almost everyone in some sense "accepts" the current government of the United States as legitimate? Would not the number who reject
its legitimacy be very small indeed? Were this not the case, would not the government be hopelessly unstable? If general acquiescence to the existing legal regime is an empirical fact, and one that is essential to its functioning
existence, can the regime not also claim the tacit consent of the population and the legitimacy that flows from such consent? Those who base tacit consent on
general acquiescence have confused a "rule of recognition" with the conditions of constitutional legitimacy. A rule of recognition is the way the population can identify the existence of an operating legal regime. Of course, some form of general acquiescence is necessary for any constitution to be implemented and to maintain its continued existence as positive law. As
Frederick Schauer has noted, this acquiescence distinguishes the Constitution of the United States from another document entitled "The Constitution of the United States" that I might write and have my friends ratify.
However acquired, mere acquiescence - which every existing government and scheme of positive law can claim - and unanimous consent cannot be the same thing.
For what is at issue here is not whether a legal system exists, but whether a particular existing constitutional regime is legitimate. Only if it is legitimate can an existing legal system issue commands to the citizenry that bind
individuals in conscience. If acquiescence, which every functioning regime can claim, equaled unanimous consent, even the most oppressive regime could claim to be entitled to a duty of obedience on the basis of such
"consent" so long as it managed to exist. Clearly this proves too much. While some degree of acquiescence may be necessary to establish a command as
positive law, more than acquiescence is needed to create a moral duty to obey such a command. James Madison caught a glimpse of the moral problem when he observed in 1784 that the unratified Virginia
Constitution "rests on acquiescence" only, which is a "dangerous basis."
There is
considerable irony in the widespread claim that "tacit" consent is the source of the duty to obey the laws. Many who assert this would never accept so attenuated a notion of consent to justify, say, the lease of a
television or the waiver of liability for harm. In these contexts, they demand a rarified version of "informed" consent that hardly, if ever, exists. They require "complete information" on everything one is
consenting to (or giving up) and a diversity of sufficiently attractive alternative choices before concluding that someone has actually consented to an enforceable contract to buy a stereo. Unless these conditions are met, they
insist that such consent is "fictitious" or "coerced." 31
Yet we are asked, often by the very same people, to accept the proposition that merely by virtue of living in the town in which we were born or by failing to leave the country, we have consented to obey nearly any command that is enacted by the reigning legal system. And the consent of a majority is supposed to bind not only members of that majority, but dissenters and future generations as well.
The problem of legitimacy considered here is whether the commands of an existing legal system bind the citizenry in conscience. If the issue of legitimacy is
only raised when there exists a functioning legal system and there can be no legal system without some form of acquiescence, then acquiescence could be viewed as a necessary, but not sufficient, condition of legitimacy. By the same
token, if the perception of legitimacy is necessary to obtain acquiescence, then whatever contributes to that perception could also be viewed as a necessary condition of legitimacy.
Nevertheless, incorporating acquiescence into the conception of legitimacy in this way does not affect my basic thesis: To be legitimate in the absence of actual consent, an
existing legal system must provide assurances that the laws it imposes are both necessary and proper.
Some fictions are harmless, some even beneficial. As Edmund Morgan has shown, the fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. 33 If the king obtained his authority from God, the Commons gained its authority from the People. Paradoxically, the fiction of the divine king was used to limit his power. First, it could be used to deny any intentions to the king that were unworthy of a perfect being. "Divinity, when assumed by mortals (or imposed upon them) can prove more constricting than subjection. Indeed, the attribution of divinity to the king had probably always been motivated in some measure by the desire to limit him to actions becoming a god." 34 Second, the divinity of the king did not extend to anyone but himself, especially excluding the ministers who actually ran afoul of the Commons. "The king was divine and unaccountable, but those he commissioned to act for him shared neither his divinity nor the unaccountability that went with it. To the Commons his agents were all subjects; and if they acted in the king's name, they must do so at their peril." 35
In a like manner could the fiction of the legislature deriving its just powers from the People be used to constrain its power. True, the "immediate objective of the change in fictions was to magnify the power not of the people themselves, but of the people's representatives." 36 But a danger immediately emerged: "With the fictional people suddenly supreme, actual people, as embodied in local communities, found their traditional rights and liberties in jeopardy from a representative body that recognized only a fictional superior." 37 Without some constraint, "the sovereignty of the people would pose graver threats not only to the wishes but also to the rights and liberties of actual people, than the divine right of kings had ever done." 38
The English responses to this threat were varied and took considerable time and struggle to develop. 39
Later in the United States, after an initial near-disastrous experimentation with legislative supremacy unchecked by a monarchy, the response took the form of constitutional constraints not only on the legislature but on the fictional People themselves. Those who drafted and adopted the Constitution realized better than some of their compatriots what we have largely forgotten: that the reality of rule by legislative majorities combined with the fiction of "We the People" can be a dangerous mixture.
Despite their rhetorical commitment to "popular sovereignty," by the time the Constitution was written, its framers were pretty well convinced that
pure majority rule or democracy was a bad idea. As Jack Rakove explains, at the founding it was thought that "the majority deserved not so much to rule as to be protected from misrule, not so much to legislate in pursuit of
its interests as to be secured against statutes that would reflect the ambitions of the privileged class."
Those who pushed for a new constitution had experienced state governments that were dominated by powerful one-house legislatures, weak governors, and a subservient judiciary - and they did not like what they saw. The result was what Madison called the problem of faction. "By a faction," Madison wrote in Federalist 10, "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." 41
Madison understood, perhaps better than some others of the period, that majorities were as great a danger to the rights retained by the people as a corrupt minority or an
individual despot. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be
apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
42
By giving power to majorities operating through their representatives, the interest of majorities becomes a greater source of danger both to minorities and to the general welfare under popular government than under other forms.
So great a danger needs to be guarded against carefully. To this end, the founders devised a new scheme in which an electorate of "the People," by voting in
elections, would exercise not a lawmaking power, but the power to "check" the lawmakers. "We the People" would not rule directly, but an electorate reflecting the rights and interests of the people would have
effective power to check those who would issue commands to the people. In the intervening 200 years, we have moved away from a conception of "popular sovereignty" in which the people, through the electorate, effectively
check the exercises of government power, and towards a fiction of "popular sovereignty" in which a democratic majority rules. Many no longer conceive of Congress as an institution charged with performing certain vital
tasks, a group of select men and women who are the servants of and checked by the people. Instead they picture Congress as "We the People" itself. Under the prevailing theory of "popular sovereignty," the
legislature is thought of as the people personified, entitled to exercise all the powers of a sovereign people. Some use such slogans as "We are the
government" or "the government is us" (though I heard this more frequently in my youth before Vietnam and Watergate). This view of government gives legislators an enormous power to do what they will, provided only
that they muster the requisite number of votes. For if "we are the government," then we would seem to consent to anything the government does. The fiction of popular sovereignty, therefore, becomes dangerous when
legislatures are conceived of as a literal surrogate for "We the People" themselves. Because "the people" can "consent" to alienate any particular liberty or right - though not their more abstract
inalienable rights - legislatures, as the people's surrogate, can restrict almost any liberty and justify it in the name of popular consent. The fiction of popular rule, as opposed to a popular check on rulers, allows a legislature
to justifiably do almost anything it wills. And this, in turn, allows majority and minority factions of the electorate to gain control and wield the power of the legislative branch at the expense of the aggregate rights of their
fellow citizens.
Bruce Ackerman refers to the view that legislatures function as "the People" themselves as "monistic democracy" in which "democracy requires the grant of plenary lawmaking authority to the winners of the last general election. ... [and] all institutional checks upon the electoral victors are presumptively antidemocratic." 44 By contrast, Ackerman denies that "the winner of a fair and open election is entitled to rule with the full authority of We the People." 45 Instead, he distinguishes "the will of We the People from the acts of We the Politicians." 46 Ackerman posits a "dualist" constitution in which normal, validly-enacted legislation is not confused with the "higher lawmaking" that "represents the constitutional judgment of We the People." 47 That appellation is limited to lawmaking initiatives that follow an "arduous obstacle course"48 designed to create a "deepening dialogue between leaders and masses within a democratic structure that finally succeeds in generating broad popular consent for a sharp break with the status quo." 49
Ackerman's dualism represents a
refreshing and important improvement over the still-dominant conception of popular sovereignty. To the extent that legislative will is decoupled from "We the People," the danger of that fiction is greatly reduced. No
longer is the process of systematically checking legislative rule seen as running afoul of the so-called "countermajoritarian difficulty."50
Moreover, there is much to be said for dualism as a descriptive account of how constitutional doctrine actually changes over time.
Nevertheless, at one juncture Ackerman claims to have provided "a normative argument" Though denying the authority of "the People" to ordinary legislation, Ackerman ultimately claims that the result of "higher lawmaking" is
entitled to be called the will of "We the People." He speaks freely and unselfconsciously of "principles of higher law validated by the People during their relatively rare success in constitutional politics"
Though "the People" can be said to really exist
- pointing to the 250 million or so citizens of the United States, each one of whom also has rights - the people as a whole never speak and never validate anything. Only some subset, whether a majority or minority of the whole,
ever vote for or against anything and, even if those who support some constitutional change can somehow bind themselves (which I doubt), their votes cannot bind either dissenters or nonvoters. Consent, as we have seen, does not
work that way. Perhaps because he defines his project as largely descriptive (the statement quoted above notwithstanding), Ackerman does not confront the fictional nature of rule by "We the People." This leaves the
normative question of constitutional legitimacy - how individuals come to be bound to obey lawful commands - unaddressed by his constitutional dualism.
Recalling Ackerman's vivid account of the transformative effect of "higher lawmaking" leads me to close this Part with an important caveat. I have argued to this point only that a duty to obey the law cannot be grounded
on the consent of the governed when there has been anything less than unanimous consent and that, quite obviously, no government legal system can claim this degree of consent. I am not claiming that adoption of constitutions (or
laws) by popular vote or conventions is a bad idea. It may well be that such ratification processes are a very good idea because they enhance the likelihood that whatever does legitimate a constitution actually exists. Moreover,
such adoption procedures may effectively secure the general acquiescence which is a requirement of any functioning legal order, whether or not it is legitimate.
I am only challenging the widely-held assumption that, because of popular sovereignty or the consent of the governed, "We the People" are even presumptively
bound in conscience to obey any law that is enacted by constitutional means. Further, since unanimous consent is never required, in practice the "consent of the governed" is reduced to the consent of a majority of
legislators who are elected by a majority of those who vote in an election. "We the People" is, in short, a fiction that, by falsely assuming the presence of consent whenever legislatures enact statutes, has dangerously
eroded the rights and liberties of each and every one of the People.
In the final analysis, the only way that a duty to obey the law can be based on consent is when consent is given. Anything less than unanimous consent cannot bind those who dissent. Those who acknowledge this take one of two positions. As we saw earlier, some like Raz maintain that there is no prima facie or presumptive duty to obey the law just because it is the law. 55 Though conceptually defensible, this position is unacceptable in regimes where lawmakers are given the benefit of the doubt and it is widely thought that there exists a duty to obey enacted laws. Others abandon popular sovereignty by contending that lawmaking authority is not based on the "consent of the governed" after all, but on something else. What is this "something else"? A. Fair Play: Does the Receipt of Benefits Obligate Us to Obey?
According to one such argument, laws are binding, not because of the consent of "We the People," but because people who receive the benefits of the legal system are bound to obey its demands. It is not consent, they say, but receipt of benefits that binds one. Sometimes called the "principle of fair play," 56 this theory has been much discussed among philosophers and I shall not try to summarize the nuances of the debate. 57
One powerful criticism of this position, by Robert Nozick, is that it too is ultimately based not merely on
"receipt" of benefits, but on some notion of consent. 58
If, out of the blue, I send you a valuable item, are you obliged to pay for it in the absence of consent? Are you even obliged to return it to me? Most would answer no. Likewise, most would believe that we are not obligated to pay for benefits that are thrust upon us by others. Some may say that if you choose to use the item, then you have obligated yourself to pay for it. There may be some merit to this suggestion: Using an item that you know has been sent to you with the expectation of repayment may indicate a consent to pay. (Even this does not necessarily mean, that you are obligated to return the item rather than discard it.) It is still not clear, however, that one is obligated to pay for all unsolicited benefits one receives from others. We may get great pleasure from wonderful architecture, or from seeing an attractive person walk by, without conceding for a moment that we could be charged for the genuine enjoyment we experience.
But I shall not pursue the matter further here, because the kinds of benefits supposedly received from a legal system - the benefit of social cooperation, for
example - are benefits that one cannot refuse no matter how hard one tries. Unless one can somehow refuse a benefit that is thrust upon him or her, it is not at all clear that one is obligated to pay for it either in money or in
obedience. For the same reason, it is not at all clear why the "benefit" one receives from living in the particular legal system we have - benefits we cannot decline to "enjoy" even if we want to - obligates one
to obey the commands of this system. When we move beyond the benefits of a "scheme of cooperation" supposedly provided by the legal system to tangible
benefits - like roads, parks, schools, etc. - we find that most are paid for by taxation, payments that certainly are not consented to in any meaningful way. Must everyone whose income is confiscated to pay for roads, parks, and
schools (to some unknowable extent) decline to make use of these resources lest they be accused of voluntarily benefitting from them and, therefore, of owing not only a duty to obey the laws, but a moral duty to pay for them as
well? In an influential essay, John Simmons defends the "fair play" argument against Nozick's critique by denying it is based on mere
"receipt" of benefits. A fairer reading, he contends, is that based instead on acceptance of benefits by participants in a particular system. For an individual to be a real participant in a cooperative scheme, he must
have either (1) pledged his support, or tacitly agreed to be governed by the scheme's rules, or (2) played some active role in the scheme after its institution. It is not enough to be associated with the
"schemers" in some vague way; one must go out and do things to become a participant or "insider" ... .
Like unanimous
consent, Simmons contends that "benefits accepted" can potentially provide the basis for a duty to obey, but (also like unanimous consent) that its conditions cannot ordinarily be obtained in modern political structures.
While it is clear that at least most citizens of most states receive benefits from the workings of their legal and political institutions, how plausible is it to say that they have voluntarily accepted those benefits, in even the
cases of the most democratic political societies now in existence? Not, I think, very plausible. 61 Simmons describes "acceptance" as an attitude that requires certain attributes. Among other
things, we must understand that the benefits flow from a cooperative scheme, rather than regarding them as "free" for the taking. And we must, for instance, think that the benefits we receive are worth the price we must
pay for them (with the burdens involved) or leaving them.
For all of these reasons, the
argument for a duty to obey the laws based on benefits either "received" or "accepted" has fared little better than the argument based on the tacit consent of the governed. But there is more. Someone defending a
duty of obedience based on the receipt of benefits might respond that both of these criticisms evade the basic point: Benefits received provide an argument for obedience wholly apart from either consent or acceptance, and for this
reason it is inadequate to respond that tacit consent to obey or pay or acceptance of a benefit is lacking. So let us take this argument at face value and assume that one
really does owe a duty of obedience to anyone who takes it upon him or herself, without the consent or acceptance of the recipient, to provide another with (vital?) benefits. Could this not be offered as a justification for the
legitimacy of chattel slavery? Could not a slave holder claim, often accurately, that he was indeed providing his charges with vital benefits: food, clothing, shelter, medical attention when needed, protection from predation
by outsiders, and so on? Of course, one might quarrel with the accuracy of this claim, but on what grounds? That food, shelter, and the rest are not "benefits"? Hardly. That these benefits are not adequate? According to
what scale of adequacy? Do citizens of severely impoverished countries have no duty to obey the law because the benefits provided by those lawmaking systems are too niggardly? At what point do the benefits become great enough to
generate a duty of obedience in the absence of consent? Is the moral problem with chattel slavery that masters do not pay the minimum wage? To better appreciate
why the nonconsensual receipt of benefits cannot be the source of a duty of obedience, imagine a very generous master who provides all essentials and even a degree of choice or freedom to his vassals - or house slaves - which they
nevertheless are unable to refuse. Are the slaves of sufficiently bounteous masters morally obligated to obey them? What is the problem with this entire line of argument? The obvious answer is that what is lacking is the consent of
the slave. Were there consent to the relationship, then we would not (or should not) describe it as slavery at all - provided that the servant was free to exit the relationship. Does all this entail a conclusion that, in the absence of actual consent, the fact that an enacted law is constitutional never gives rise to a duty of
obedience? I think not. In Part III, I shall offer an alternative source of the duty to obey laws in the absence of consent. However, at this juncture what is most important is seeing (1) consent to the sort of lawmaking process
established by the Constitution is both nonexistent and impossible to achieve; and (2) the dispensation of benefits by lawmakers does not generate a duty to obey their commands in the absence of consent. If such a duty exists, it
must be grounded in some other way and, unless some alternative justification exists, there is no duty to obey the commands of these lawmakers. Though it is not
hard to see why consent is needed to convert a slavery relationship to one that is morally permissible, it is sometimes overlooked that this strongly implies the existence of preexisting human rights. For only if persons have
a background right to refuse their consent can we ever say they have consented. Such a background right of refusal must, therefore, precede the creation of a duty of obedience based on consent. If consent is the source of a duty to
obey the law, then first come rights and only then comes law. As we shall soon see in Part III, in the absence of consent, the preexistence of these background or "natural" rights has important implications for any legal
system that claims a duty of obedience.
Some political theorists rely upon a notion of "hypothetical consent" or that to which a rational person would consent. 65
To evaluate claims of constitutional legitimacy based on "We the People," we need not get enmeshed in the intricacies of such rational choice theories. It is sufficient to note that hypothetical consent is not actual consent. Indeed, actual consent plays no role in such approaches. Rather, it is a normative approach that is based on a thought experiment about what people under certain conditions ought to consent to, regardless of whether they do consent or not.
In other words, while an argument based on "hypothetical consent" may well provide an argument in favor of certain moral or political principles, such an argument
is not based on the real world consent of anyone to anything. This means that hypothetical consent provides no consent-based reason to ignore or evade the background rights of the people - if, that is, people do have rights prior
to the formation of a legal system.
Lysander Spooner was perhaps the earliest American constitutional theorist to recognize that an argument based on hypothetical consent "existing only in theory"
In sum, an argument based on theoretical or hypothetical consent is inadequate to justify overriding background rights. To the contrary, for a constitution to be legitimate on the basis of hypothetical (as opposed to actual) consent, it must be shown that such a constitution is consistent with the background rights of the individual. In the next Part, I shall consider an alternative conception of constitutional legitimacy that explains both how laws can bind the citizenry in conscience in the absence of consent and why, because consent is lacking, the lawmaking power of government must be limited. Indeed, I argue that, in the absence of unanimous consent, there is a duty to obey the law only when the legislature's powers are limited.III. Constitutional Legitimacy Without Consent
At some level, advocates of popular sovereignty probably realize full well that there is no real consent to obey
the laws made pursuant to the Constitution. Nevertheless, they might contend that, because unanimous consent to a constitution is obviously impossible, majoritarian consent is the closest we can come to real consent and this makes
it sufficient to legitimate governance. One response to this argument is that when it comes to consent, coming close is not good enough. Consent is either present or it is absent. Anything short of consent is not consent.
Moreover, if it can be shown that lawmaking based on unanimous consent is both possible and practical, then it could no longer be alleged that majoritarian consent is justified
by necessity. With unanimous consent no longer a hopeless ideal, it also becomes easier to see why, in the absence of unanimous consent, legitimacy requires that limits or constraints be imposed on majoritarian governance. As I explain in section III.A, because unanimous consent to governance is possible (though not to the form of governance provided by this Constitution),
majoritarian consent cannot be justified on grounds of necessity. Second, as will be discussed in section III.B, the argument contending that majoritarian consent is sufficient as "second best" ignores the constraint that
must be imposed on any institution that is legitimated by this type of fictitious consent: The background rights of nonconsenting persons must be protected. Therefore, even if majoritarian rule is necessary, the fact that it
lacks actual consent gives rise to an imperative that this form of rule be limited in ways that genuinely consent-based rule need not.
My
argument in Part I assumes, uncontroversially, that a duty of obedience could be grounded on consent if everyone consented to be so bound. One reason this condition fails to be met under our constitutional system
is that the polity is simply too big ever to consent unanimously to anything. 70
But suppose that the relevant lawmaking unit was much much smaller than the United States, indeed smaller than any state and even most cities. Would unanimous consent then be possible? I think it would. Let me now briefly sketch how unanimous consent is practical.
My parents live in a large private residential community known as Leisure World. When they bought their home, they also expressly agreed to a governance structure that is
highly democratic. Leisure World is typical in this regard, though governance arrangements do vary among different residential communities. As with most other communities, the structure of Leisure World empowers the governing board
to authorize numerous restrictions on behavior within the community. Houses cannot be expanded without a permit, nor can they be rented for long periods of time. Indeed, no one under fifty-five years of age is allowed to purchase a
home in this community. I could go on at length listing the freedom-constraining regulations that exist in Leisure World. Have my parents consented to obey
these rules? Yes, but not in the sense that they consented to each and every rule as it was enacted. Rather, they expressly consented to the existing rules of Leisure World when they purchased their home, and they also expressly
agreed to the governance structure by which the rules would be administered and changed. They committed to be bound by the outcome of this structure every bit as much as contracting parties expressly agree to be bound by the
outcome of private arbitration when such a clause is in their contract. In Leisure World, then, there is actual unanimous consent to be bound by the rulemaking
process. Why cannot we say the same thing about other lawmaking authorities? One obvious reason is that our consent is never solicited. Would such a solicitation be appropriate? Could the town I live in have required my consent to
the outcome of our municipal lawmaking process before it allowed me to reside there? Could the state I live in have required such consent before I moved there? Not without encountering the vicious circle of authority described in
Part I. n71 Unlike the town and state in which I live, Leisure World originally purchased and owned all the land on which it is built, and sold parcels only on the condition that purchasers accept its governance structure. Because of its original ownership, it could rightfully condition sale on obedience to the governance structure of Leisure World.
But initial ownership and initial consent are not the only morally relevant differences between communities like Leisure World and polities governed by federal, state, and municipal lawmakers. Leisure World and thousands of communities just like it are also distinguished by the low cost of exit that makes that initial consent meaningful. As Frank Knight emphasized, "effective freedom depends upon an alternative open to the non-conforming individual of leaving the group without suffering loss or damage. In fact, freedom is chiefly a matter of 'competition' between groups for members." 73
Though Leisure World is fairly large - larger than many small towns - it is a relatively small part of a larger metropolitan area.
If you do not like the rulemaking system of Leisure World, you can buy a house across the street where the rules and rulemaking procedures may be very different and more to your liking. The cost of exit is quite low.
By "cost of exit" I refer not merely to the financial costs of moving to another location, but to the other sacrifices you make by that choice. As I have described elsewhere at greater length, It was Lon Fuller who most famously contended that these sorts of rulemaking activities are as entitled as geographically-based legal systems to be called
"systems of law": If law is considered as "the enterprise of subjecting human conduct to the governance of rules," then this enterprise is being conducted, not on two or three fronts, but on thousands.
Engaged in this enterprise are those who draft and administer rules governing the internal affairs of clubs, churches, schools, labor unions, trade associations, agricultural fairs, and a hundred and one other forms of human
association. ... There are in this country alone "systems of law" numbering in the hundreds of thousands.
What Fuller does not mention is that these myriad legal systems have the moral imprimatur of unanimous consent that large geographically-based legal systems necessarily
lack. For when geography defines jurisdiction, size matters. The larger the land area, the higher the cost of exit and thus the less meaningful is "tacit" consent
to the jurisdiction of the lawmaking process. Most modern cities are probably too large, but even if they are small enough, states are certainly too large to command meaningful unanimous consent. If large territorial lawmaking
authorities are to command a duty of obedience it must be on some grounds other than the consent of the governed. Of course, when geographically-based lawmaking authorities first purchase the land over which they claim
jurisdiction, we can say that consent by subsequent purchasers or lessors to the jurisdiction of the original owner is both consensual and unanimous. To be
clear, simply lowering the cost of exit is no substitute for the initial title by which a rightful owner can condition continued presence on acceptance of a lawmaking procedure. Even with this initial assent, however, were
consent-based territories to grow to the size of current jurisdictions, it becomes less clear that consent can be inferred from an unwillingness of persons born therein to incur the cost of exit. To maintain their authority, such
consent-based regimes might have to subsidize the exit of those who do not consent. Still, in the real world, the need to raise the funds to make such purchases will naturally limit the size of such jurisdictional claims and
keep the cost of exit within reason. Thus, contrary to conventional wisdom, against a background of initial entitlements, unanimous consent to obey the law is
quite possible, but only if the cost of exit is sufficiently small, either because jurisdiction is not geographically based or because the geographical territory is not too large. Where such unanimous consent exists, legal
regulations can cover virtually any subject, provided they do not infringe upon inalienable rights or upon the rights of third parties. This is true because persons may consent to alienate or waive many of their rights. The
clearest difference between a prize fight and a battery, between making forceful love and rape, is consent. Under the conditions of unanimous consent, then,
liberty is not inconsistent with both heavy regulation and even the prohibition of otherwise rightful conduct. Ironically, with a governance structure based on unanimous consent, there may be far less freedom of action than in its
absence. To the extent that such communitarian constraints on freedom are desirable, this is the context in which they are permissible and binding in conscience.
Only when lawmaking authority is imposed over a relatively large geographical area does unanimous consent become impractical. Can such jurisdiction ever be legitimate in
the absence of consent and, if so, under what conditions? The answer begins with understanding why, when it does exist, consent legitimates lawmaking.
Consent only legitimates lawmaking on the assumption that "individuals have rights, and there are things no person or group may do to them (without
violating their rights)."
One need not accept any particular formulation of background rights, however, to accept the
conception of constitutional legitimacy advanced here. For present purposes, it is only necessary to note that for consent to legitimize a lawmaking process, we must presuppose that consent matters - that people have a right to
consent and, by necessary implication, a right to withhold their consent. Otherwise consent would not be required and could not impart legitimacy upon that to which one has consented. In sum, for consent to matter in the
first instance, we must assume (and there is also good reason to conclude) that "first come rights, and then comes law" or "first come rights, then comes government." Historically, the rights that people have
independently of government were called "inherent" or "natural" rights. Today, they are often referred to as "human" rights. The
assumption that "first come rights, then comes government" 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 as obligatory for the person on whom it is imposed as protecting that person's rights are obligatory on the legal system itself. We have then reached an ironic conclusion: With
unanimous consent, there can be many more legitimate restrictions on freedom than when consent is absent. Because people may consent to just about anything, they have the liberty to consent to laws that greatly restrict their
freedom. However, in the absence of actual consent, their background liberty rights remain intact and must not be infringed. In sum, while actual consent can justify restrictions on freedom, without actual consent, liberty must be
strictly protected. Therefore, when we move outside a community constituted by unanimous consent, laws must be scrutinized to ensure both that they are necessary and that they do not improperly infringe upon the rights retained by the people.
This theory of constitutional legitimacy is susceptible to being misunderstood in several ways. To avoid this, I should emphasize precisely what I am claiming and the
limits of this claim. 1. Beyond Respecting and Protecting Rights. - In this Part, I am only offering a justification for a duty of obedience in the absence of consent, a justification that extends only to laws that are both
necessary to protect the rights of others and proper insofar as they do not violate the rights of the persons whose freedom they restrict. I do not claim that my argument on behalf of this limited duty of obedience also
provides an affirmative argument against any other source of nonconsensual legitimacy that might broaden a moral duty of obedience. Though my argument does not
itself rule out other potential justifications of nonconsensual duties of obedience, those who claim that a person's freedom may be restricted for ends other than the protection of rights must justify this further extension of
power. In Part I, we saw the weakness of arguments based on tacit consent and benefits received. Elsewhere I have explored the surprising weaknesses of arguments based on retributive and distributive justice.
Though the strength of procedural protections that both respect and protect background rights justifies a duty of nonconsenting persons to obey the law, this particular rationale extends only so far and no farther. Readers who want
more than this from lawmaking might want to consider the protection of background rights a baseline by which to assess legitimacy. That is, a legitimate legal system is one that provides assurances that its liberty-restricting
commands are necessary to protect the rights of others and do not improperly violate the rights of those on whom they are imposed. Whether a legal system that does more (or less) than this is also legitimate is an open question
that requires additional analysis and justification. It also bears mentioning that a large proportion of government action does not involve coercively imposing
commands on the citizens. When the Post Office sets its hours of operation or the price of its postage stamps it is acting in the capacity of an owner of a business. It is no more restricting the rightful freedoms of the citizenry
than a private organization that does the same. Such commands are perfectly proper under Article I, Section 8 which gives Congress the power "to establish Post Offices." Even without additional
justification, however, the theory of constitutional legitimacy advanced here does not rule out more ambitious impositions of duties on persons than the protection of rights. On this account, there are two, not one, sources of
binding law: laws that are produced by unanimous consent regimes, and laws that are produced by regimes whose legitimacy rests solely on procedural assurances that the rights of the nonconsenting persons on whom they are imposed
have been protected. Whatever additional types of laws and regulations beyond the protection of rights are thought desirable can usually be obtained within the unanimous consent communities that, as we have seen, are both
possible and pervasive. Like Leisure World, academic and religious communities, for example, impose a wide variety of additional duties on their members. Those
who insist that geographical nonconsent-based lawmaking is necessary because unanimous consent to lawmaking is impossible are simply in error. That which already exists is clearly possible. And those who contend that these
unanimous consent communities are somehow inadequate must justify, not merely assert, their claim. In so doing, they must be careful to show why the same deficiencies do not apply as well to nonconsensual territorially-based legal
systems - especially in a world in which a diversity of such systems compete with one another and no one legal system can ensure the right outcome in all the others.
Still, depending on the view of rights we adopt, even unanimous consent regimes may be subject to some limit to the duties they can legitimately impose. If there are some
rights that cannot be waived or transferred, even by the consent of the right holder, then unanimous consent regimes, to be legitimate, must offer procedural assurances that these inalienable rights have been protected. Inalienable rights are those that can be reclaimed, even after they are waived by a right holder.
This last point also highlights the relationship between the theory of legitimacy defended here and the theory of justice upon which the legitimacy of any particular legal system depends. Such a right of exit is not a feature of
the concept of constitutional legitimacy defended here. Rather it is a procedure that would protect against the violation of certain inalienable rights. Though one can accept the procedural conception of legitimacy advanced here
without concurring on a particular theory of justice, determining which procedures are needed to ensure that laws promulgated by a particular legal system are not unjust will depend on the conception of justice one holds. 2. The Meaning of "Necessary & Proper." - I have borrowed the standard of "necessary and proper" from the Constitution itself. Article I grants Congress the power to "make all Laws which
shall be necessary and proper for carrying into Execution"
The Necessary and Proper Clause requires that laws be necessary to the execution of any power delegated to the national government by the Constitution, not just the power to
protect the rights of others. In this respect, the clause has a conception of "proper" that is broader or more permissive than mine. Part of the reason for this is that the government is charged with performing many
functions, the performance of which does not require the restriction of personal freedom. On the other hand, as has been shown by Gary Lawson and Patricia Granger, propriety includes not only the protection of individual rights but
also an adherence to principles of federalism and separation of powers.
In the absence of actual consent, then, every freedom-restricting law must be scrutinized to see if it is both necessary to protect the rights of others and does not improperly
violate the rights of those whose freedom is restricted. In the absence of actual consent, a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just in this respect. If a lawmaking
process provides these assurances, then it is legitimate and the commands it issues are entitled to a benefit of the doubt. They are binding in conscience unless shown to be unjust.
The problem
of constitutional legitimacy is to establish why, in the absence of actual consent to be bound, anyone should care what a constitutionally valid law may command. I am not asking why people perceive a constitution to be legitimate
and constitutional laws binding in conscience. Instead, I am asking what qualities a constitution should have to justify this perception. My answer is that we may owe a prima facie duty to obey a constitutionally valid law
only if the constitutional processes used to enact laws provide good reasons to think that a law restricting freedom is necessary to protect the rights of others without improperly infringing the rights of those whose liberty is
being restricted. As we have already seen, this quality depends upon the presence or absence of consent. When consent is present, a lawful command can restrict almost any
freedom except an inalienable right. However, when consent is lacking, as it is with respect to the Constitution of the United States, to bind in conscience, a law must be both necessary to the protection of the rights of others
and proper insofar as it does not violate the rights of those upon whom it is imposed. A constitutionally legitimate lawmaking process provides an assurance that both these requirements have been met.
What exactly are these rights that a legitimate lawmaking process must assure us have not been violated? I myself maintain that the natural rights people have before they form a legal system and which they retain unless they consent to their alienation are "liberty rights." You do not, however, have to agree with the framers' or with my account of justice or natural rights to accept the theory of constitutional legitimacy advanced
in this Essay. We can be in full agreement that, when consent is lacking, a constitution is legitimate only when it provides sufficient procedures to assure that the laws enacted pursuant to its procedures are just. My claim here is only that (1) anything short of actual consent cannot bind a nonconsenting party; (2) the U.S. Constitution is legitimated neither by actual
consent of the governed nor by receipt of benefits; (3) unanimous consent to lawmaking is both possible and pervasive; but (4) in the absence of actual unanimous consent, to be legitimate, a constitution must provide sufficient
procedural assurances that whatever quality makes a law just and therefore binding in conscience goes in before the name law goes on a particular command.
For better or worse, this makes legitimacy outside of unanimous consent legal regimes a matter of degree rather than an all-or-nothing characteristic. Above the threshold where a law is more likely than not to be just, the more effectively procedures ensure that valid laws are just, the greater the presumption to be accorded those laws enacted under them. The more confidence we have in enacted laws, the more skeptical we can be about a claim that a particular law is unjust. In this Essay, it is not possible for me to describe all the characteristics that I believe contribute to legitimate lawmaking. Familiar features of our legal system - widespread suffrage, separation of powers, federalism, and a written constitution that "locks in" these practices as well as lists both enumerated powers and enumerated rights - each play a role if properly respected. So too does judicial review by ensuring that these legitimacy-enhancing features are indeed respected. So too would the adoption of a "presumption of liberty," which would place the burden on the government to justify to a court that its freedom-restricting commands are both necessary and proper. 93
By acknowledging that, above a certain threshold, constitutional legitimacy is a matter of degree, the theory I am proposing does not always provide a clean answer to the
question of whether a particular lawmaking process, taken as a whole, is sufficient to provide enacted legislation with the benefit of the doubt. But it does confront the question that others neglect and answers it by
positing something real, not fictitious, that we should be looking for: procedures that assure that enacted legislation does not violate the rights retained by the people. And it also allows us to conclude that some constitutions
are more legitimate than others. It is an open question whether the U.S. Constitution - either as written or as actually applied - is in fact legitimate.
Intellectual honesty requires us to acknowledge the possibility that no constitution lacking unanimous consent is capable of producing laws that bind in conscience. Therefore, though the conception of legitimacy offered here may
not always be easy to apply, and though it invites debate and controversy about the nature of justice and rights, even skeptical readers might want to give it the benefit of the doubt. For their alternative may be to admit that
there is no one behind the curtain. 21
These questions not only point up the
error of taking electoral accountability as an independent source of legitimacy, they also suggest that it is mistaken to think of electoral accountability and constitutional provisions as alternative sources of legitimacy. Rather,
the Constitution with its provisions limiting the majority's ability to exercise power is the answer to the question of why decisions voted by a majority are binding on the minority who disagree. Id.
In the constitutional convention the aim of the parties is to find among the just constitutions ... the one most likely to lead to just and effective
legislation in view of the general facts about the society in question. The constitution is regarded as a just but imperfect procedure framed as far as the circumstances permit to insure a just outcome.