Legitimation by Constitution : A Dialogue on Political Liberalism

“Legitimation by Constitution” is the authors’ name for a key idea in Rawlsian political liberalism, for a reliance on a dualist form of democracy – a subjection of ground-level lawmaking to the constraints of a higher-law constitution that most or all citizens could find acceptable as a framework for their politics – as a response to the problem of a liberally just and stable yet oppression-free democratic government in conditions of pluralist visionary conflict. This book recalls, collects, and combines a series of exchanges over the years between the two authors inspired by Rawls’s encapsulation of this conception in a 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 advanced as a solution, these exchanges take up perceived difficulties arguably standing in the way of that proposal’s fulfillment on terms consistent with political liberalism’s own defining ideas about political justification. They touch on the mysteries of a democratic constituent power; the tensions between government by the people and government by consent; the challenges thus posed to concretization by judicial authorities of national constitutional law; and the magnification of these mysteries, tensions, and challenges under the lenses of ambition towards transnational legal ordering. Along the way the discussions treat with other leading contemporary theorists of liberal-democratic constitutionalism including Bruce Ackerman, Ronald Dworkin, and Jürgen Habermas.