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The Declaration of Independence famously declared, “[w]e hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” It then affirmed “[t]hat to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” This last sentence has proven to be problematic.

If “consent of the governed” means the consent of a majority of “We the people,” then the “consent of the governed” can be used to violate the unalienable rights for which “Governments are instituted among Men.” 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 prevailing “collective” conception of popular sovereignty is that it invites this majoritarian interpretation of the “consent of the governed.” How else is the “will” of “We the people” to be identified?

Publication Citation

48 Val. U. L. Rev. 903-920 (2014)