Strong popular sovereignty and constitutional legitimacy

Abstract

<jats:p> Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint. </jats:p>

Constituent power and civil disobedience: Beyond the nation-state?

“…However, I do want to highlight reasons for skepticism. Legal and constitutional theorists, significantly, have raised pointed questions about its conceptual and political merits (Duke, 2017; Dyzenhaus, 2012; Vinx, 2013). In this critical vein, Andrew Arato has argued that standard notions of constituent power do a disservice to innovative recent experiments in constitution-making: ideas of a unified, omnipotent, extra-legal constitution-maker mesh poorly with constitution-making as a multi-pronged, multi-staged process, where political actors build, albeit selectively, on existing legal and constitutional mechanisms (Arato, 2017; see also Preuss, 1995).…”

I Trends in Theorizing Democratic Legitimacy

“…These studies extend our knowledge of the conditions under which IOs are effective in curbing democratic backsliding in their member states. Simultaneously, a systematic approach to deliberative democracy contributes to our understanding of why militant democracy has become vulnerable to ani-democratic threats (Murdoch et al, 2021; Chung & Duggan, 2020), how anti-democratic actors claim the right to rule (Duke, 2020; Milstein, 2021), and why they are successful in undermining democracy (Scherz, 2021; Biale & Ottonelli, 2019).…”

“…It is considered the primary source of contemporary appeals to strong popular sovereignty and constituent power. At the same time, as Duke argues, this theory is more useful for normative interpretations than for its explanatory value (Duke, 2020).…”

“…It is considered the primary source of contemporary appeals to strong popular sovereignty and constituent power. At the same time, as Duke argues, this theory is more useful for normative interpretations than for its explanatory value (Duke, 2020). Duke (2020) delves into the arguments introduced by critics of endeavors to ground constitutional legitimacy in the constituent power of a strong popular sovereign.…”

“…At the same time, as Duke argues, this theory is more useful for normative interpretations than for its explanatory value (Duke, 2020). Duke (2020) delves into the arguments introduced by critics of endeavors to ground constitutional legitimacy in the constituent power of a strong popular sovereign. In recent years, such studies have concentrated on the tension between strong popular sovereignty and liberal constitutionalism.…”