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Abstract:
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“We the People” and the corresponding concept of constitutional authorship have
gripped our imagination of the legitimacy of constitutional democracy since the
American and French Revolutions. In contrast to this Big Bang scenario of constitutionmaking,
the constitutionalization of the European Union (EU) as a supranational entity
is the product of a decades-long process, departing from the Revolutionary tradition of
constitutionalism. Whether this “presentist” project of constitutionalization without
making a constitution, which is characterized by polyarchical everyday policy
negotiations and apolitical judicial decisions in the normality of the constitutional order,
will succeed in reconstructing our imagination of political order as an alternative to
constitutional authorship remains to be seen. This paper aims to answer this question
through a close inspection of Frank Michelman’s critical engagement with theories of
constitutional legitimacy. My investigation shows that Michelman arrives at a presentist
view of constitutional democracy after pointing out the inadequacy of theories of
constitutional legitimacy rooted in the Revolutionary tradition of constitutionalism. I
argue, however, that Michelman’s presentist view cannot fully account for the
legitimacy of public institutions in constitutional democracy without presupposing a
transtemporal view of identity, which is the reason why Michelman finds constitutional
authorship in tension with liberalism, and thus unacceptable. By showing that
Michelman’s presentist view of constitutional democracy is coherent with, rather than
being at odds with, constitutional authorship, I conclude that the latter will continue to
play a central role in our concept of the legitimacy of constitutional democracy. |