A Farewell to Constitutional Authorship? A Critique of the Presentist Turn in the Legitimacy of Constitutional Democracy

Abstract

“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.