International Journal of Constitutional Law Advance Access originally published online on October 7, 2009
International Journal of Constitutional Law 2009 7(4):683-714; doi:10.1093/icon/mop024
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Cutting the Gordian knot of legitimacy theory? An anatomy of Frank Michelman's presentist critique of constitutional authorship
* Visiting researcher, Yale Law School
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Abstract |
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The question of legitimacy occupies center stage in debates on various constitutional developments. For as long as constitutional scholars cannot settle on a theory of legitimacy, the specter of a legitimacy deficit will continue to haunt the practitioners of constitutional law. Constitutional scholar Frank Michelman engages different schools of constitutional theory, seeking the definitive answer to the legitimacy question. He classifies theories of legitimacy into three categories, premised on notions of contract, acceptance, or authorship. Arguing that contract-based and acceptance-oriented legitimacy theories assume the notion of authorship, he distinguishes constitutional authorship in terms of its presumed transtemporal character and abandons it because of this character. To cut this Gordian knot, Michelman proposes a presentist view of legitimacy. Through an analysis of his theoretical engagement, this article argues that his effort to abandon authorship-based theories fails. A commonly chosen, authoritative dispute-settling institution, in line with Michelman's presentist alternative, cannot stand without assuming a transtemporal concept of constitutional authorship. Thus the Gordian knot remains.