Protecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.

Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, however, be justified on two interrelated grounds. First, in the absence of effective protection by a state, individual civil and political rights remain empty declarations. Stateless people, Hannah Arendt has taught us, are the most vulnerable; they have no legal rights and no way of seeking protection as a matter of right.

When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.

This chapter explores how we might, by our practice, give more vigor to the democratic aspiration that a people should rule themselves. It does so in two steps. First, it examines the form of governance of the Gitxsan people, a First Nation of northern British Columbia. The traditional governance of the Gitxsan, like that of most Indigenous peoples, is not organized in the manner of a state. The nature of Gitxsan members’ attachment to their legal and political order is not masked, then, by the heavy institutionalization of a state, and the characteristics of their adherence can be perceived and weighed more easily. Second, the chapter reflects upon how a similar quality of adherence might be achieved within state-structured polities. In short, this chapter uses the Gitxsan comparison to seek more precision in how we ought to understand citizens’ attachment to – their “consent” to – their legal and political order, and it suggests practical steps that might promote that end in contemporary states.