Originalism, Consent, and Legitimacy:

Over at Volokh, Ilya Somin has a post on originalism and an interesting discussion has ensued on whether which if any of the particular varieties of originalism are legitimate. Someone mentioned the "contract" analogy, which makes sense because, after all, the Declaration and Constitution are "social contract" documents. However, mere consent is insufficient for establishing the legitimacy of the original Constitution.

Don't get me wrong, consent is necessary for the legitimacy of a) the ratification the original Constitution as well as any amendments thereto AND b) the election of any representatives who presently sit in power. But it is not enough to argue that the Constitution as ratified in 1791 binds us today merely because a particular majority of folks consented to it back then.

For one, no one alive today assented to the original Constitution or most of its amendments. I cannot bind you into a contract for which you never assented. Randy Barnett clearly lays this out in his book. No one is bound to a contract ratified by a dead guy or a bunch of dead guys hundreds of years ago. The original meaning of the Constitution can only legitimately bind if read through the lens of a presumption of liberty. In that respect, no one's rights are violated by living under our Constitutional order.

As mentioned, there are varieties of originalism, varieties of textualism, and even possible differing outcomes in "original meaning originalism," which is the only viable theory of originalism. Original meaning originalism still needs a further jurisprudential theory to undergird it. And that is the presumption of liberty/natural rights -- that government's ONLY legitimate functions are to protect rights of life, liberty, and property, which are "unalienable," that is antecedent to majority rule. The majority does not have the legitimate power to abridge my right to liberty (so long as I'm not violating anyone else's) and I never consented to live under a system where they did have that right.