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Legitimation by Constitution: A Dialogue on Political Liberalism

Legitimation by Constitution: A Dialogue on Political Liberalism

Author: Frank Michelman; Alessandro Ferrara
Publisher: Oxford University Press
ISBN: 9780192855121
Published In: November 2021
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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"Legitimation by Constitution" is the phrase, coined by distinguished authors Frank Michelman and Alessandro Ferrara, for a key idea in Rawlsian political liberalism of a reliance on a dualist form of democracy-a subjection of ground-level lawmaking to the constraints of a higher-law constitution that most citizens could find acceptable as a framework for their politics-as a response to the problem of maintaining a liberally just, stable, and oppression-free democratic government in conditions of pluralist visionary conflict.

Legitimation by Constitution recalls, collects, and combines a series of exchanges over the years between Michelman and Ferrara, inspired by Rawls' encapsulation of this conception in his proposed liberal principle of legitimacy. From a shared standpoint of sympathetic identification with the political-liberal statement of the problem, for which legitimation by constitution is proposed as a solution, these exchanges consider the perceived difficulties arguably standing in the way of this proposal's fulfillment on terms consistent with political liberalism's defining ideas about political justification. The authors discuss the mysteries of a democratic constituent power; the tensions between government-by-the-people and government-by-consent; the challenges posed to concretization by judicial authorities of national constitutional law; and the magnification of these tensions and challenges under the lenses of ambition towards transnational legal ordering. These discussions engage with other leading contemporary theorists of liberal-democratic constitutionalism including Bruce Ackerman, Ronald Dworkin, and Jürgen Habermas.

Part I: Popular Sovereignty Versus Higher (and Higher) Law

1:"Always Under Law"

2:On the Paradox of Deliberative Democracy

3:The Challenge of "Most Reasonable for Us"

4:The "Most Reasonable for Us" or "Irrescusability" as Preserving Authenticity

Part II: A Democratic Horizon

5:Constitutional Interpretation: A Dualist Democrat's Dilemma

6:On Reconciling the Two Understandings of Judicial Review

7:Judicial Constitutional Application: A Rejoinder

8:Backgrounding the Debate: Judicial Occlusion and Remedial Strategies

Part III: Global Orders and Limits of Liberalism

9:Hyperpluralized Constituencies: The Challenge for Political Liberalism