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Kuo on Michelman on Constitutional Legitimacy

By Lawrence Solum

Ming-Sung Kuo (Max Planck Institute for Comparative Public Law and International Law) has posted Cutting the Gordian Knot of Legitimacy Theory? An Anatomy of Frank Michelman?s Presentist Critique of Constitutional Authorship (International Journal of Constitutional Law, Vol. 7, 2009) on SSRN. Here is the abstract:

The question of legitimacy occupies center stage in debates on various constitutional developments. While constitutional scholars cannot settle on a theory of legitimacy, the specter of legitimacy deficit continues 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 contract, acceptance, or authorship. Arguing that contract-based and acceptance-oriented legitimacy theories assume the notion of authorship, he distinguishes and abandons constitutional authorship in terms of its presumed transtemporal 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 remains the Gordian knot.

Full post as published by Legal Theory Blog on June 25, 2009 (boomark / email).