THE CONSTITUTION of the United States is a piece of parchment under glass in Washington, D.C. Why should we pay any attention to it? Why should we follow what it says when the best minds among us—or those who think themselves the best—are sure it is defective in important ways and that they can do better? After all, it was written long ago for a very different age. Its authors were remarkably able, prescient even, but they were not divine. They could err and they knew it. They would be the first to admit their imperfections even on the most pressing moral question of their own day. Were they alive today they would most certainly expect and want their creation modified to adapt to problems they could not have anticipated. So why, more than two hundred years later, do legislators or judges need to follow this particular document to the letter?
The most common answer to this question is that the Constitution of the United States is based on the “consent of the governed” or what is sometimes called “popular sovereignty.” “We the People” established this Constitution, it is said, and the people are therefore bound to it until it is changed. The consent of “We the People” is what got the Constitution up and running, and the continued consent of the governed keeps it binding upon us. I reject this answer. Not only is it inaccurate, but even as an ideal this idea can prove dangerous in practice, and can nurture unwarranted criticism of the Constitution’s legitimacy. Ironically, few ideas are more conducive to undermining the governing authority of the Constitution than that of “We the People.”
In chapter 1, I explain why the consent of the governed cannot justify a duty to obey the laws. Though genuine consent, were it to exist, could give rise to a duty of obedience, the conditions necessary for the governed actually to consent to anything like the Constitution have never existed and could never exist. But despite the failure of the argument from consent, I maintain that laws passed pursuant to a legitimate constitutional authority can still bind us in conscience.
In chapter 2, I contend that a constitutional regime is legitimate only if it provides sufficient assurances that the laws it produces are “necessary and proper”—the standard for acts of Congress specified in the Constitution itself. Because both necessity and propriety are needed for a law to be justified, constitutional legitimacy requires legal procedures that ensure these qualities go in before the name “law” goes on, as well as procedures to ensure the just application of necessary and proper laws to individuals. In short, constitutional legitimacy is procedural, not consensual.
One vital aspect of a law’s propriety is whether it violates the background or “natural” rights retained by the people. While the consent of “We the People” is a fiction, as I explain in chapter 1, this does not mean that the rights of the people are at all fictitious. On the contrary, in the absence of consent, laws bind in conscience only if there is reason to be confident that they do not violate the “liberty rights” of the people. In chapter 3, I show that the persons who drafted and adopted the Ninth and Fourteenth Amendments viewed natural rights as “liberty rights” and why they were correct to do so. A clearer picture of natural rights helps to illuminate why and when there is a duty to obey the law. Here, then, is a second irony: many are wedded 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. They are wrong on both counts.