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Constitutional Legitimacy, Randy E. Barnett
Constitutional Legitimacy, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …
Self-Historicism, Mark V. Tushnet
Self-Historicism, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Among the contributors to this symposium, I may be the person with the longest acquaintance with Sandy Levinson. I want to begin, therefore, with a recollection of the period of my earliest contacts with Sandy - a recollection that, as I hope to show, has some bearing on some of the aspects of Sandy's work that most interest me . . . I use these examples to introduce an argument connected to Sandy's longstanding interest in historical memory. The casebook of which he is a co-author is organized historically-relentlessly so, I would put it, to the point where I personally …
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this Article, I present the evidence of the original public meaning of the Necessary and Proper Clause." These findings will, of course, be of interest to originalists. But, they should also be of interest to the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, or who consider original meaning the starting point of a process by which this meaning is translated into contemporary terms. By either account, it is important to find the correct original meaning, even if it is not dispositive of today's cases and controversies. I will show …