Defending the Weak Will of the People

An Economic Perspective on Collective Will in Democratic Societies

Originally published in George Mason Law Review

The "will of the people," as it is commonly understood, does not exist. There is simply too much difference between people--and too much danger in overlooking that difference--to justify a belief that the actions of a legislature could reflect such a will. However, the constitutional principles that underlie a society do reflect the governing intent of the people at large, at least to a limited extent. As such, these constitutional principles represent a weak form of the will of the people that is actionable. Judges can uphold this interpretation of the will of the people not by deferring to legislators, but by upholding the constitution.

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