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32 Const. Comment. 61 (2017)
Countering the Majoritarian Difficulty

handle is hein.journals/ccum32 and id is 63 raw text is: 









     COUNTERING THE MAJORITARIAN
                       DIFFICULTY


OUR REPUBLICAN CONSTITUTION: SECURING
THE LIBERTY AND SOVEREIGNTY OF WE THE
PEOPLE. By Randy E. Barnett.1 New York: HarperCollins
Publishers.  2016. Pp. xiv + 283.  $26.99 (cloth).

                       Amy  Coney  Barrett'

     In Our Republican   Constitution, Randy  Barnett argues  that
the United  States Constitution rests on a foundation of individual
rather  than  collective  popular   sovereignty.  Grounding   the
legitimacy of the  government   in the authority given it by each
individual rather than by the People as a whole echoes  the thesis,
advanced   in Barnett's  prior work,  that the government must
justify incursions upon individual liberty.' If the People as a body
are  sovereign  and  the  Constitution  is designed  to  facilitate
democratic    self-governance,    legislation  is  presumptively
legitimate  because   it represents  the  sovereign  will  of  the
democratic  majority. If the individual is sovereign, by contrast,
legislation does not represent  the sovereign  will but rather the
work  product  of government  officials who serve as the agents of

    1. Carmack Waterhouse Professor of Legal Theory; Director, Georgetown Center
for the Constitution.
    2. Diane & M.O. Miller, II Research Chair in Law, Notre Dame Law School. This
essay was prepared for a roundtable on OUR REPUBLICAN CONSTITUTION hosted by the
University of Illinois and the Georgetown Center for the Constitution. It benefited from
the comments of the other participants, Jack Balkin, Randy Barnett, Jud Campbell, Kurt
Lash, Sanford Levinson, Jason Mazzone, and Larry Solum, as well as of my colleagues Bill
Kelley and John Nagle, who generously read an earlier draft.
    3. RANDY BARNETT, OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY
AND SOVEREIGNTY OF WE THE PEOPLE (2016) [hereinafter BARNETT].
    4. See, e.g., RANDY BARNETT, RESTORING THE LOST CONSTITUTION: THE
 PRESUMPTION OF LIBERTY (2004) (arguing, inter alia, that courts should replace a
 presumption of constitutionality with a presumption of liberty). RESTORING THE
 LOST CONSTITUTION has been described as the best defense ever written of a libertarian
 or conservative/libertarian approach to constitutional law. Steven G. Calabresi, The
 Originalist and Normative Case Against Judicial Activism: A Reply to Professor Randy
 Barnett, 103 MICH. L. REV. 1081, 1081 (2005).


61

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