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Does the Constitution of the United States of America impart legitimacy on legislation enacted under its auspices? If so, how? Is a citizen bound in conscience to obey such legislation? If so, why? Does legislation create a duty of obedience simply because it was enacted by a group of persons calling themselves a "legislature," or is there some other reason? Would any constitution impart such legitimacy or is there something special about the character of those that do? If the latter, does the United States Constitution have the requisite character?

While I shall not definitively answer these questions in this Foreword, I hope to flesh them out enough to show that they belong in the ongoing debate concerning the proper contours of judicial review. For, while the proper method of interpreting the Constitution and the appropriate role of judicial review are hotly debated, few discuss whether and why a citizen has a moral obligation to adhere to legislation that results from constitutional processes. There is an unspoken assumption that legislation resulting from constitutional processes creates at least a prima facie duty of obedience in a citizen.

Publication Citation

Randy E. Barnett, The Ninth Amendment and Constitutional Legitimacy: Foreword to the "Symposium on Interpreting the Ninth Amendment," 64 Chi.-Kent. L. Rev. 37 (1988).