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](ViewImageLocal?handle=hein.journals/ccum32&div=7&collection=&method=preview&ext=.png&size=3)
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Countering the Majoritarian Difficulty
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