Results 1 to 4 of 4

Thread: Why Popular Sovereignty requires the due process of law to challenge ... Statutes

  1. #1
    Regular Member
    Join Date
    Feb 2013
    Location
    Thru Death's Door in Wisconsin
    Posts
    13,153

    Why Popular Sovereignty requires the due process of law to challenge ... Statutes

    Randy Barnett: I have now posted a draft of my Foreword to the issue on SSRN. It is entitled, Why Popular Sovereignty Requires the Due Process of Law to Challenge “Irrational or Arbitrary” Statutes. Here is the abstract: http://papers.ssrn.com/sol3/papers.c...act_id=2765131

    This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/1665

    https://www.washingtonpost.com/news/...rary-statutes/

    A section heading, 'The limits of "The Consent of the Governed"'
    Last edited by Nightmare; 04-16-2016 at 05:17 AM.
    I am responsible for my writing, not your understanding of it.

  2. #2
    Regular Member Whitney's Avatar
    Join Date
    Jan 2010
    Location
    Poulsbo, Kitsap County, Washington, USA
    Posts
    449

    On Sovereignty ... Who are We The People ?

    <<<< Snipped from the aforementioned document >>>>

    If the “consent of the governed” is taken to mean the consent of a majority of the people, then the “consent of the governed” can be used to violate the “unalienable rights” that “governments are instituted among Men” “to secure.” The situation is still worse if the consent of a majority of a small body of men and women called “legislators” and “representatives” is taken to be the same as the consent of the people themselves. The problem with the “collective” conception of popular sovereignty based on “the will of the people” is that it invites this majoritarian interpretation of the “consent of the governed.” For it would seem that the “will” of “We the People” could not be identified in any other way. After all, the citizenry will never be unanimous about anything.


    ~Whitney
    The problem with America is stupidity.
    I'm not saying there should be capital punishment for stupidity, but why don't we just take the safety labels off of everything and let the problem solve itself?

  3. #3
    Regular Member
    Join Date
    Feb 2013
    Location
    Thru Death's Door in Wisconsin
    Posts
    13,153
    Thanks for reading.
    I am responsible for my writing, not your understanding of it.

  4. #4
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766
    I'm only a little ways into it and like it. Thanks for posting.


    I would add another dimension--historical context. In English history, recall that people were arguing to high heaven across centuries for more and more freedom/less and less arbitrary government. Amongst the long sequence of vicious brutality and threats by government, English political history contains a long discernible thread of the people pushing for less arbitrary rule and more freedom from arbitrary rule.

    Consent of the governed was an argument used against kingly power. For example, the king could not tax an Englishman without his consent (and still can't). But, the Englishman's consent "is" demonstrated by his representative in Parliament. That is to say, the king cannot tax an Englishman without the approval of Parliament. And, that is taken as consent of the governed. Of course, its not actually consent of the governed. Individuals who are governed cannot refuse consent. Individuals are gonna be governed whether they consent or not.

    So, on the one hand, consent of the governed is a government lie too easy to prove (just try refusing consent.)

    But, on the other hand, in the long view, consent of the governed is a valid, pro-freedom argument the practice of which only got so far. And, it wasn't the pro-freedom folks who prevented full actual practice. It was--and still is--government who prevents its full application.

    Its a little like the Fifth Amendment right against self-incrimination. Government swears up and down that it is a fighting right. Government holds that you have to invoke it. Sometimes you have to invoke it again and again. But, that is a self-serving government argument. In reality, it is a "fighting right" only because that was all government conceded in the past. Government didn't concede one tiny bit more than it thought it had to in order to avoid torches and pitchforks. And, that was as far the Fifth Amendment got. Nothing prevented the government from full recognition of the Fifth Amendment on the same level as the ancient Sanhedrin (ancient Jewish courts) who held that nothing the accused said could be used against him. Nothing. No fannying about over whether the accused was properly Mirandized. No splitting hairs over whether he was in custody or not at the time he said it. Plain and simple--full recognition by the ancient Sanhedrin: nothing the accused said could be used against him. Period.

    Similar for consent of the governed. The only thing preventing full recognition of consent of the governed is government itself. Government is preventing the practice from catching up with the principle.

    The principle represents people rising toward freedom. The consent of the governed being "represented by the will of the legislature," instead of an individual's actual personal consent, is a waypoint on the way to the practice catching up with the principle.
    Last edited by Citizen; 04-29-2016 at 07:45 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •