Constitutional Legitimation for Political Acts
| DOI | http://doi.org/10.1111/1468-2230.6601001 |
| Published date | 01 January 2003 |
| Author | Frank I. Michelman |
| Date | 01 January 2003 |
THE
MODERN LAW REVIEW
Volume 66 January 2003 No 1
Constitutional Legitimation for Political Acts
Frank I. Michelman
n
The question of legal legitimacy, liberally understood, is that of whether anyone
has a morally justified complaint about impressment into compliance with a
particular law or set of laws. A good constitution may possibly contribute towards
a liberally legitimate practice of national politics. This essay is concerned with one
way in which a constitution, no matter how excellent, cannot thus contribute. We
cannot use judgments regarding constitutionality to bridge the gap that must
always exist between judgments regarding the validity of controversial laws and
judgments regarding their legitimacy. We cannot hope to solve in that
‘contractual’ or ‘procedural’ way the riddle of government by consent in modern
social conditions of deep ethical plurality and conflict, because we cannot
successfully combine a proceduralist idea of constitutional legitimacy with a
content-based conception of the binding virtue for constitutions.
[O]ur exercise of political power is proper and hence justifiable only when
it is exercised in accordance with a constitution the essentials of which all citizens
may reasonably be expected to endorse in the light of principles and ideals
acceptable to them as reasonable and rational. This is the liberal principle of
legitimacy.
1
Preface: a scope note
Political action inevitably is linked to coercion or the threat of it. For liberals like
John Rawls and countless others, coercion is morally supportable, hence politics
possibly can be legitimate, only if its authors and perpetrators can justify what
they do by appeal to principles and rules that ought - or so it is maintained - to be
found acceptable by any clear-sighted person seeking fair terms of social
cooperation for a population of presumptively free and equal persons holding
diverse and conflicting conceptions of the good.
2
n
Robert Walmsley University Professor, Harvard University. This article is adapted from my
Chorley Lecture of 29 May 2002, at the London School of Economics. I am indebted to Mark
Tushnet for helpful comments.
1 J. Rawls, Political Liberalism (New York: Columbia University Press, 1996) 217.
2 See ibid 139–140; J. Rawls, ‘Public Reason Revisited’ in S. Freeman (ed), J. Rawls: Collected
Papers (Cambridge, MA: Harvard University Press, 1999) 573; F. I. Michelman, ‘Relative
Constraint and Public Reason: What is ‘‘The Work We Expect of Law’’?’ (2002) Brooklyn Law
Review 963, 971–973.
rThe Modern Law Review Limited 2003. (MLR 66:1, January). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 1
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