Authenticity:The Ultimate Challenge in the Quest for Lasting Constitutional Legitimacy†

2020 ◽  
Author(s):  
Ming-Sung Kuo
Keyword(s):  
Charismatic Leadership ◽  
Popular Sovereignty ◽  
Theoretical Modelling ◽  
Legitimate Authority ◽  
Constitutional Democracy ◽  
Making Sense ◽  
The People ◽  
The Relationship ◽  
We The People ◽  
Constitutional Legitimacy

Abstract The recent upsurge of populism has prompted a wave of theoretical reflections on constitutional democracy. Echoing Max Weber’s sociology of legitimate authority, Bruce Ackerman’s Revolutionary Constitutions: Charismatic Leadership and the Rule of Law stands out from the crowd by providing an ambitious trichotomy of constitutional legitimacy—revolutionary, establishmentarian and elitist—with a focus on the revolutionary pathway. Engaging with Ackerman’s theoretical modelling of the relationship between constitutionalism and legitimate authority, I argue that the resurgence of popular sovereignty, as embodied in We the People in populist rhetoric indicates the centrality of authenticity in constitutional democracy as constitutional authenticity is underpinned by the ethics of being true to the people’s originality. Yet, with the ethics of authenticity assuming its pathological form, the focus has been shifting from making sense of the constitution to the people’s self-identification with individual politicians. The latest wave of populism crystallises the anti-ethics of authenticity in our quest for lasting constitutional legitimacy.

The Fiction of “We the People”: Is the Constitution Binding on Us?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Popular Sovereignty ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.

Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Popular Sovereignty ◽  
Alternative Path ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.

A New Hope

2018 ◽  
Author(s):  
Zoran Oklopcic
Keyword(s):  
Popular Sovereignty ◽  
The People ◽  
Collective Self ◽  
The Relationship ◽  
The Way

As the final chapter of the book, Chapter 10 confronts the limits of an imagination that is constitutional and constituent, as well as (e)utopian—oriented towards concrete visions of a better life. In doing so, the chapter confronts the role of Square, Triangle, and Circle—which subtly affect the way we think about legal hierarchy, popular sovereignty, and collective self-government. Building on that discussion, the chapter confronts the relationship between circularity, transparency, and iconography of ‘paradoxical’ origins of democratic constitutions. These representations are part of a broader morphology of imaginative obstacles that stand in the way of a more expansive constituent imagination. The second part of the chapter focuses on the most important five—Anathema, Nebula, Utopia, Aporia, and Tabula—and closes with the discussion of Ernst Bloch’s ‘wishful images’ and the ways in which manifold ‘diagrams of hope and purpose’ beyond the people may help make them attractive again.

scholarly journals Political Theory of Populism

2019 ◽  
Vol 22 (1) ◽  
pp. 111-127 ◽  
Author(s):  
Nadia Urbinati
Keyword(s):  
Political Culture ◽  
Political Theory ◽  
Popular Sovereignty ◽  
The Political ◽  
Representative Government ◽  
Constitutional Democracy ◽  
The People ◽  
Democratic Societies ◽  
Democratic Principles

Populism is the name of a global phenomenon whose definitional precariousness is proverbial. It resists generalizations and makes scholars of politics comparativist by necessity, as its language and content are imbued with the political culture of the society in which it arises. A rich body of socio-historical analyses allows us to situate populism within the global phenomenon called democracy, as its ideological core is nourished by the two main entities—the nation and the people—that have fleshed out popular sovereignty in the age of democratization. Populism consists in a transmutation of the democratic principles of the majority and the people in a way that is meant to celebrate one subset of the people as opposed to another, through a leader embodying it and an audience legitimizing it. This may make populism collide with constitutional democracy, even if its main tenets are embedded in the democratic universe of meanings and language. In this article, I illustrate the context-based character of populism and how its cyclical appearances reflect the forms of representative government. I review the main contemporary interpretations of the concept and argue that some basic agreement now exists on populism's rhetorical character and its strategy for achieving power in democratic societies. Finally, I sketch the main characteristics of populism in power and explain how it tends to transform the fundamentals of democracy: the people and the majority, elections, and representation.

scholarly journals Politics and constitutional jurisgenesis: A cautionary note on political constitutionalism

2018 ◽  
Vol 7 (1) ◽  
pp. 75-111
Author(s):  
MING-SUNG KUO
Keyword(s):  
Popular Sovereignty ◽  
Constitutional Theory ◽  
Constitutional Politics ◽  
Constitutional Order ◽  
Law And Politics ◽  
The People ◽  
Robust Version ◽  
Judicial Supremacy ◽  
The Relationship

Abstract:This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutionalnomosI take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towardsnomos-building.

Education, Propaganda, and the People: Democratic paternalism in 1930s Siam

2015 ◽  
Vol 49 (4) ◽  
pp. 1122-1142 ◽  
Author(s):  
ARJUN SUBRAHMANYAN
Keyword(s):  
Small Group ◽  
Popular Sovereignty ◽  
Limited Capacity ◽  
Constitutional Democracy ◽  
Top Down ◽  
People's Party ◽  
The People ◽  
The Creation ◽  
The Masses ◽  
Second Category

AbstractOn the morning of 24 June 1932 the ‘People's Party’, a small group of civil and military bureaucrats, toppled the Thai absolute monarchy and introduced constitutional democracy. This article discusses the establishment of democracy as an endeavour in ‘democratic paternalism,’ by which is meant the Party's attempt to establish a new moral and intellectual leadership that had as its main goal the creation of a depoliticized democratic citizenry. To implement their programme for democracy, the Party embarked on an ambitious plan to modernize education and explain popular sovereignty through countrywide lectures and radio programmes. The democratic paternalist effort had mixed results. State weakness limited the reach of the educational and propaganda campaigns, and further the ‘people’ in whose name the revolution was staged, constituted two different groups: a largely illiterate peasantry and a small, incipient new intelligentsia. Because of its limited capacity, the People's Party tasked the second group with assisting in democratic mentorship of the masses, but many in this second category of people had a broader conception of democracy than the Party's ‘top-down’ model and criticized the Party for its paternalist constraints on popular sovereignty. Democratic paternalism and frustration with the limits imposed on popular democracy are two central aspects of this period of history that have endured in Thai society.

Cicero

2021 ◽  
pp. 15-62
Author(s):  
Michael C. Hawley
Keyword(s):  
Political Philosophy ◽  
Natural Law ◽  
Political Thought ◽  
Popular Sovereignty ◽  
Political Regime ◽  
The People ◽  
Ultimate Source ◽  
Moral Duties ◽  
To Come ◽  
The Relationship

This chapter explores Cicero’s republican political philosophy. It argues that Cicero’s political thought has two fundamental principles. First, Cicero argues that there are universally applicable moral duties—the natural law—that are binding on everyone always. These principles have their basis in humans’ nature as rational beings. Second, he argues that a legitimate regime will recognize the people as the ultimate source of authority. No political regime can be just without resting on this basis. But these two principles threaten to come into conflict whenever the people’s will contradicts natural law. The chapter examines Cicero’s attempt to mediate this conflict. It also explores Cicero’s conceptions of liberty, justice, property, and empire, all of which emerge out of the relationship between the claims of natural law and popular sovereignty.

Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Majority Rule ◽  
Popular Sovereignty ◽  
James Madison ◽  
The People ◽  
The Commons ◽  
Constitutional Regime ◽  
Constitutional Legitimacy

This chapter examines what it takes to achieve constitutional legitimacy in the absence of consent by focusing on the effort of those who drafted and adopted the Constitution to constrain the fiction of popular sovereignty they themselves accepted. The fiction of popular sovereignty originated as an antidote to the fiction of the divine right of the king. If the king obtained his authority from God, the Commons gained its authority from the people. Despite their rhetorical commitment to “popular sovereignty,” by the time the Constitution was written, its framers were convinced that pure majority rule or democracy was a bad idea. The chapter first considers democratic majoritarianism and and what James Madison called “the problem of faction” before discussing constitutional legitimacy in the absence of consent. It argues that a constitutional regime is legitimate only if it provides sufficient assurances that the laws it produces are “necessary and proper.”

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