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date: 28 February 2021

Abstract and Keywords

This chapter explores the authority of the U.S. Constitution, with particular emphasis on authority rooted in principles and practices of popular sovereignty. Drawing on James Madison’s arguments in The Federalist, the chapter identifies five overlapping sets of criteria to analyze the U.S. Constitution’s initial authority: the Articles of Confederation and other antecedent constitutional norms; processes of formal constitutional ratification involving “the people” and those acting on their behalf; principles of republican governance; the Constitution’s instantiation of the people’s foundational political commitments; and the people’s affirmation of constitutional norms outside the channels of formal ratification. Each of these criteria links the Constitution’s authority to that of the presumably sovereign “people of the United States.” Instead of assuming that the Constitution’s authority was fully and definitively established during the Founding period by processes of formal ratification, the chapter outlines how the Constitution’s authority has been incomplete across multiple dimensions.

Keywords: Founding, James Madison, constitutional authority, popular sovereignty, constitutional norms, constitutional ratification, constitutional rights, constitutional theory, republican governance, political power

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