This Article argues that, contrary to current practices, constitutional change is legitimate only when it commands the unanimous support of the people, or, because unanimous support is practically impossible, when it is accomplished through procedural devices (i.e., representation, ratification, and supermajority support) that safeguard minority interests in an effort to determine the public good and approximate the will of the people as a whole. Constitutional change is illegitimate when it represents only the will of a portion of the people. This Article attempts to answer the question of what makes a constitution or a constitutional amendment legitimate, and provides specific content- based norms, consistent with America's history and form of government, to evaluate the legitimacy of constitutional change.
Place of Original Publication
Fordham Law Review
64 Fordham Law Review 535 (1995)
Ku, Raymond Shih Ray, "Consensus of the Governed: The Legitimacy of Constitutional Change" (1995). Faculty Publications. 375.