NCJ Number
141384
Journal
Harvard Journal of Law and Public Policy Volume: 15 Issue: 1 Dated: (Winter 1992) Pages: 99-112
Date Published
1992
Length
14 pages
Annotation
This article defends the claim that the essence of both the Bill of Rights and the Constitution are profoundly populist, democratic, majoritarian, and structural.
Abstract
The Bill of Rights emerges as much less discontinuous with the original Constitution than a conventional reading of the Bill of Rights suggests. A review of the Preamble to the Constitution or that of Article VII, the last article of the original Constitution and the essence of the document, reveals a fundamentally participatory, democratic, and majoritarian view at the most important level. This is the level of who gets to make and "unmake" the Constitution. Ordinary day-to-day governance is more detached from the people, such as indirect election of Senators, but with regard to the process of Constitutional creation, Article VII is both majoritarian and democratic. The people retain an unalterable, inalienable, and indefeasible right to alter and abolish their government by simple majority vote in specially convened conventions. The Bill of Rights is consistent with that vision. The phrase "the people" appears twice in the original Constitution, and there is no phrase that appears more often in the Bill of Rights. Again, in its essence, the phrase "the people" is about popular sovereignty. A view of the Bill of Rights as a "Constitution" is outlined is accompanied by comments on panelists'reactions to this perception. 55 footnotes