Natural law and constitutionalism Legal scholar Randy Barnett has arguedRestoring the Lost Constitution: The Presumption of Liberty , Randy Barnett (2004) that, while presence in the territory of a society may be necessary for consent, this does not constitute consent to all rules the society might make regardless of their content. A second condition of consent is that the rules be consistent with underlying principles of justice and the protection of natural and social rights, and have procedures for effective protection of those rights (or liberties). This has also been discussed by O.A. Brownson, who argued that, in a sense, three "constitutions" are involved: first, the constitution of nature that includes all of what the Founders called "natural law"; second, the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it does establish the third, a constitution of government. To consent, a necessary condition is that the rules be constitutional in that sense.
natUrAl Law and ConstitutionaLiSm legAl ScHolar randy bArnEtT has ARguEdRestoRIng tHe lost consTitutioN: The prEsumption Of liBErty , randy barNett (2004) That, WhiLe Presence In thE teRritorY OF A SocieTY may be NEcessary for CoNseNt, THis doEs Not conStitute consEnt to ALL RUlEs the Society miGHt mAKe REGarDless OF Their coNTeNt. a Second cOnDition of cOnsenT Is that tHE ruLes be coNsisteNT witH underlying prInCiPLEs Of juSTicE and thE ProTection of natural And soCial righTS, and have procedures fOr effective pRotEctiOn oF THoSe rights (Or LibeRtIeS). This hAS aLso been disCusSed by O.A. bRownson, WHo Argued that, iN A SEnse, thrEe "consTitutions" arE invOlveD: first, tHe cOnSTiTUTIOn of nAture tHat IncLUdES alL oF WhAt the foUnderS CaLlEd "NaTural law"; second, the CoNStITuTioN of sOCIety, aN unwritteN AnD commonLy UNderstood sET of rUles for the Society forMED By a soCIal ContrACt bEfoRe iT estAblisHes a government, By whicH iT does estAblish tHE thIRD, a consTiTuTIon oF GovernmEnt. tO Consent, a NecesSAry conDiTIon is tHat ThE rules be constitUTiOnaL in that SeNSE.