The prevailing tide of events has spawned an army of experts holding forth on various aspects of our constitution. Two threshold questions, however, have so far eluded their analysis. The first concerns the legitimacy of the constitution itself while the second relates to its interpretation. Both are vital to ponder upon for a more nuanced understanding of the constitutional facets of the current national scenario.
Putting aside the hollow sloganeering of the lawyer’s movement, our constitution is not sacrosanct. Its legitimacy, therefore, cannot simply be assumed.
The focus of constitutional legitimacy is to primarily establish the reason(s) for obeying the constitution. Significantly, thus, unless we openly confront the question of the constitution’s legitimacy, we can never know how to improve obedience to it.
Typically, written constitutions like ours facially derive their legitimacy from the consent of the governed, whereby the freely and fairly elected people’s representatives have a right to govern, so long as they don’t transgress limits on their authority traceable to the constitutional precommitments of the people themselves.
[quote]Written constitutions like ours typically derive their legitimacy from the consent of the governed[/quote]
Notably, however, for several constitutional theorists led by Harvard Law School’s Professor Richard Fallon, this source of legitimacy is problematic on certain substantive counts. For one, it ignores the fact of plurality and disagreement as it is impossible for everyone to consent to a particular constitution. Moreover, even if most people actually did consent, the majority consent cannot legitimate tyrannizing the minority.
Another deeper problem for Fallon and his ilk is that most of the constitution’s current subjects have most likely never expressly consented to it as a means of limiting their future choices. Hence, notwithstanding the constitution’s difficult amendment procedure, why should it bind citizens in the present by the consent of its framers that reflects the framers’ respective choices and preferences of it as the instrument of governmental restraint? Though some theorists point to tacit consent and constructive trust as possible reasons for doing so, the majority including Fallon reject this equivalence of acquiescence with consent.
An alternative to the ‘consent of the governed’ explanation for obeying the constitution is the argument that benefits received by the citizens from a constitutional order grounded on fair play obligate them, in return, to obey laws irrespective of whether they consent to them. But, this explanation is also treacherous for liberty as it entirely suppresses the element of consent.
In response to the inherent problems in these two traditional explanations for constitutional obedience, Georgetown Law School’s Professor Randy Barnett, compellingly suggests that to the extent that the constitution establishes law-making procedures perceived as fair by the citizens, besides adequately assuring the justice of enacted laws, it is legitimate. Running our constitution through this theory of constitutional legitimacy, it is apparent that its legitimacy is circumscribed, in so far as our existing constitutional and legal framework remains alien to a vast majority of the citizens who also perceive it as inherently unfair and restrictive.
Our constitution’s legitimacy is further chipped by its inability to promote and uphold the rule of law in its contemporary manifestation. It, in its current form, lamentably falls short of securing the full panoply of fundamental rights and freedoms of its citizens in consonance with international law and standards encompassed in Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; and International Covenant on Economic, Social and Cultural Rights.
Importantly, thus, our constitution is most appropriately characterized as one marked by partial or limited legitimacy.
Intrinsically linked to the legitimacy of a particular constitution is the mode of its interpretation. While it makes some good sense to interpret a fully legitimate constitution ‘textually’ or by ‘strict construction’, applying the text only as it is spoken, there is some space for judicial maneuverability beyond the strict text of a partially legitimate constitution like ours to bolster its legitimacy and/or to preserve its core principles and values.
Crucially, if we calibrate our presently misplaced expectations from the constitution with the true measure of its legitimacy by accepting and recognizing that it enjoys only partial legitimacy that justifies its judicial interpretation in broad and flexible terms as a living document capable of catering to contemporaneous views and situations, it enhances the possibility of us emerging from the existing crisis with our constitutional edifice intact.
The writer is a lawyer. He can be reached at as2ez@virginia.edu
Putting aside the hollow sloganeering of the lawyer’s movement, our constitution is not sacrosanct. Its legitimacy, therefore, cannot simply be assumed.
The focus of constitutional legitimacy is to primarily establish the reason(s) for obeying the constitution. Significantly, thus, unless we openly confront the question of the constitution’s legitimacy, we can never know how to improve obedience to it.
Typically, written constitutions like ours facially derive their legitimacy from the consent of the governed, whereby the freely and fairly elected people’s representatives have a right to govern, so long as they don’t transgress limits on their authority traceable to the constitutional precommitments of the people themselves.
[quote]Written constitutions like ours typically derive their legitimacy from the consent of the governed[/quote]
Notably, however, for several constitutional theorists led by Harvard Law School’s Professor Richard Fallon, this source of legitimacy is problematic on certain substantive counts. For one, it ignores the fact of plurality and disagreement as it is impossible for everyone to consent to a particular constitution. Moreover, even if most people actually did consent, the majority consent cannot legitimate tyrannizing the minority.
Another deeper problem for Fallon and his ilk is that most of the constitution’s current subjects have most likely never expressly consented to it as a means of limiting their future choices. Hence, notwithstanding the constitution’s difficult amendment procedure, why should it bind citizens in the present by the consent of its framers that reflects the framers’ respective choices and preferences of it as the instrument of governmental restraint? Though some theorists point to tacit consent and constructive trust as possible reasons for doing so, the majority including Fallon reject this equivalence of acquiescence with consent.
An alternative to the ‘consent of the governed’ explanation for obeying the constitution is the argument that benefits received by the citizens from a constitutional order grounded on fair play obligate them, in return, to obey laws irrespective of whether they consent to them. But, this explanation is also treacherous for liberty as it entirely suppresses the element of consent.
In response to the inherent problems in these two traditional explanations for constitutional obedience, Georgetown Law School’s Professor Randy Barnett, compellingly suggests that to the extent that the constitution establishes law-making procedures perceived as fair by the citizens, besides adequately assuring the justice of enacted laws, it is legitimate. Running our constitution through this theory of constitutional legitimacy, it is apparent that its legitimacy is circumscribed, in so far as our existing constitutional and legal framework remains alien to a vast majority of the citizens who also perceive it as inherently unfair and restrictive.
Our constitution’s legitimacy is further chipped by its inability to promote and uphold the rule of law in its contemporary manifestation. It, in its current form, lamentably falls short of securing the full panoply of fundamental rights and freedoms of its citizens in consonance with international law and standards encompassed in Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; and International Covenant on Economic, Social and Cultural Rights.
Importantly, thus, our constitution is most appropriately characterized as one marked by partial or limited legitimacy.
Intrinsically linked to the legitimacy of a particular constitution is the mode of its interpretation. While it makes some good sense to interpret a fully legitimate constitution ‘textually’ or by ‘strict construction’, applying the text only as it is spoken, there is some space for judicial maneuverability beyond the strict text of a partially legitimate constitution like ours to bolster its legitimacy and/or to preserve its core principles and values.
Crucially, if we calibrate our presently misplaced expectations from the constitution with the true measure of its legitimacy by accepting and recognizing that it enjoys only partial legitimacy that justifies its judicial interpretation in broad and flexible terms as a living document capable of catering to contemporaneous views and situations, it enhances the possibility of us emerging from the existing crisis with our constitutional edifice intact.
The writer is a lawyer. He can be reached at as2ez@virginia.edu