Constitutional Legitimacy Reconsidered: Beyond the Myth of Consensus

Abstract

Constitutionalism as a justificatory principle of judicial review is now facing philosophical challenges. I argue that these challenges should be taken seriously, explaining what are the difficult problems raised by them and why the problems are more difficult than are usually assumed to be. After pointing out the inadequacy of the standard defences of constitutionalism, I reveal the failures of Rawlsian attempt to defend constitutionalism on the basis of overlapping consensus. I take up Waldron's theory of the dignity of democratic legislation and Dworkin's theory of law as integrity as major attempts to overcome the failures of Rawlsian myth of overlapping consensus and show their own inadequacies respectively. In the conclusion I briefly sketch the view of constitutionalism as a project for justice that I hold to be a more promising way of defending constitutionalism as a sincere attempt at the rule of law.

Keywords:

• Constitutionalism
• rule of law
• victor's justice
• two-tier power structure
• rule of the dead
• dualist democracy
• pre-commitment theory
• overlapping consensus
• circumstances of politics
• primacy of democratic legislation
• law as integrity
• political obligation
• legitimacy
• justice