Jonah Patel
The legitimacy of a constitution is a complex and multifaceted concept that varies across different political systems and ideologies. It is shaped by historical context, the process of its creation, and the ongoing endorsement of the public. While some constitutions, like those of the United States, Hungary, and Germany, are grounded in distinct forms of legitimacy, others, such as those imposed by foreign powers, face controversies over their source of legitimacy. This raises questions about the role of foreign influence and the ongoing debate and acceptance by the public as essential factors in legitimizing a constitution. The concept of legitimacy itself is a topic of philosophical inquiry, with scholars like Locke, Kant, Rousseau, and Estlund offering varying perspectives on the nature of legitimate political authority and the role of coercion and procedural considerations.
| Characteristics | Values |
|---|---|
| Participatory process | The constitution was drafted and ratified with the participation of the people. |
| Interpretative method | Originalism is a popular method for interpreting the constitution. |
| Resistance to foreign sources | Using foreign sources is resisted as it is seen as robbing the people of their power to rule and determining their norms. |
| Constant endorsement | The constitution must be constantly endorsed and debated in the public sphere to maintain legitimacy. |
| Rule of law | In a constitutional system, the law is supreme over private will, integrating nationalism, democracy, and limited government. |
| Checks and balances | Constitutional law restrains the actions of the government and provides checks and balances. |
| Popular acceptance | The government's actions are seen as legitimate when they abide by the law and are accepted by the people. |
| Democratic principles | Government legitimacy comes from abiding by democratic principles and being accountable to the people. |
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What You'll Learn
Resistance to foreign sources
This resistance can be understood through the lens of representational constitutionalism, which asserts that the use of foreign sources undermines the will of the American people and their power to rule themselves. Kahn's argument highlights how this resistance is linked to the focus on will and representation in American constitutionalism, which also explains the importance attributed to the participatory process in drafting and ratifying the Constitution.
The German, Japanese, and Bosnian Constitutions provide contrasting examples where foreign powers played a significant role in their drafting, resulting in limited representation of the people. In the case of Germany and Japan, the constitutions were crafted by occupying powers, while the Bosnian Constitution was effectively decided by the leaders of Croatia and Serbia, signatories who did not represent the Bosnian people. These cases raise questions about the source of legitimacy of imposed constitutions.
The concept of political cosmopolitanism challenges the notion that national communities are the sole source of political legitimacy. It acknowledges the role of international conventions and the potential for global institutions to supersede nation states in certain policy areas. However, it also raises questions about the criteria for recognizing legitimate political entities and the sanctions for those that fall short.
The resistance to foreign sources in constitutional interpretation reflects a desire to preserve the integrity of the constitutional process and the self-governance of the nation. This resistance has implications for how constitutional legitimacy is perceived and interpreted, shaping the political and legal landscape of a country.
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Popular belief and acceptance
In the context of constitutionalism, the modern political concept establishes the law as supreme, integrating nationalism, democracy, and limited government. The legitimacy of constitutionalism stems from the popular belief that the government's actions are legitimate because they abide by the codified laws within the constitution. This belief in the rule of law is a cornerstone of constitutional legitimacy.
The process by which a constitution is drafted and ratified also contributes to its legitimacy. For example, the US Constitution's participatory drafting and ratification process is often cited as a source of its legitimacy. Additionally, the resistance to using foreign sources in interpreting the US Constitution can be seen as a way to preserve the will of the American people and prevent external influences from shaping their norms.
However, the mere acceptance of a constitution at a historical moment is not enough to establish lasting legitimacy. For a constitution to remain legitimate, it must be constantly endorsed and present in the public sphere. Its meaning must be continually debated and invoked in political discussions to maintain its relevance and legitimacy over time.
Furthermore, the type of political system also influences the sources of legitimacy. For instance, in a democracy, legitimacy derives from the perception that the elected government adheres to democratic principles and is thus accountable to its citizens. In contrast, fascism in the 1920s and 1930s based its legitimacy on denying the legitimacy of elected liberal democratic governments, emphasising traditional authority. Monarchy, on the other hand, often derives legitimacy from the divine right of kings, tradition, and custom, as well as the acceptance of the monarch as the rightful ruler.
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Participatory process
The legitimacy of a constitution is influenced by the legitimacy of the process that produces it. A democratic or participatory process is necessary to create a legitimate constitution. This process can include public education programs, public meetings, petitions, parades, referendums, and written submissions of suggestions for constitutional content.
Todd Eisenstadt, Carl LeVan, and Tofigh Maboudi define participatory constitution-making as "transparent, substantive, and often direct citizen involvement." They argue that the qualities of participatory processes, such as inclusion, deliberation, and consensus-building, can lead to higher levels of democracy and an increase in the number of rights included in constitutions.
The perception of a fair process is essential in linking participation and support for the constitution. Research suggests that people are more likely to voluntarily comply with decisions or rules that they view as fair. This indicates that participation in constitution drafting can increase public support, regardless of the extent of its impact on the final text.
For example, the 1995 constitution of the Federal Democratic Republic of Ethiopia (FORE) had weak original legitimacy but earned derivative legitimacy through aggressive implementation, which demanded fidelity to the constitution. Similarly, a member of South Africa's Constitutional Assembly, Mohammed Valli Moosa, noted that the South African public felt like they were part of the process, making the final product more legitimate.
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Originalism as an interpretative method
Originalism is a popular interpretative method that is grounded in the idea of conventionalist representational constitutionalism. This method is particularly relevant in the context of the US Constitution, where the focus is often on the will and representation of the American people. Originalism seeks to interpret the Constitution based on the original intentions of those who drafted and ratified it. This approach resists the use of foreign sources, as it is believed that doing so would distort the will of the American people and rob them of their power to rule.
The popularity of originalism can be explained by the historical context in which the US Constitution was drafted and ratified. The problem of slavery, for example, was "solved" by abdicating reason and surrendering to the will of those involved in the drafting process. This opened a gap between reason and will, and the focus on representation became a key feature of US constitutional discourse.
Originalism, as an interpretative method, has its strengths and weaknesses. On the one hand, it emphasises the importance of the participatory process and seeks to uphold the will of the people involved in creating the Constitution. This method also aligns with the concept of conventionalist representational legitimacy, which holds that the Constitution should be constantly endorsed and debated in the public sphere.
However, originalism has been criticised for its resistance to foreign sources and its potential to limit the interpretation of the Constitution. By only considering the original intentions of the drafters and ratifiers, originalism may struggle to adapt to changing social, political, and cultural contexts. It is worth noting that the ideal of conventionalist constitutionalism is not solely dependent on acceptance by the public at a historical moment but also requires constant endorsement and presence in the public sphere.
Overall, originalism as an interpretative method plays a significant role in shaping how the Constitution is understood and applied. It highlights the importance of the drafting and ratification process and seeks to preserve the original intentions and will of the American people. However, it also faces challenges in balancing the dynamic nature of societal evolution with a static interpretation of the Constitution.
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Constitutional monarchy
A constitutional monarchy is a system of government in which a monarch shares power with a constitutionally organized government. The monarch may be the de facto head of state or a ceremonial leader. The constitution allocates the government's powers to the legislature and judiciary.
The present-day concept of a constitutional monarchy developed in the United Kingdom, where democratically elected parliaments and their leader, the prime minister, exercise power, with the monarch having ceded power and remaining as a titular position. In many cases, the monarchs, while still at the very top of the political and social hierarchy, were given the status of "servants of the people" to reflect their new, egalitarian position.
Constitutional monarchies can be classified as either executive or ceremonial. In executive monarchies (also called semi-constitutional monarchies), the monarch wields significant (though not absolute) power and is a powerful political and social institution. Ceremonial monarchies, on the other hand, have monarchs that hold little or no actual power or direct political influence, though they often still have a great deal of social and cultural influence.
Legitimacy in a constitutional monarchy is established through several mechanisms that ensure the government is accepted by its people. These include a constitutional framework that outlines the powers and responsibilities of the monarch and the government, legal authority rooted in law, and public support based on the belief that the monarch and the government are acting in the people's best interests. Traditional legitimacy, derived from the role of the monarchy in national identity and historical practices, also contributes to the authority of a monarch in a constitutional monarchy.
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Frequently asked questions
The source of legitimacy of a constitution can vary. For example, in the United States, it is based on conventional representation, while in Germany, it is based on natural representation. In other cases, the source of legitimacy may be controversial or conflictual, leading to normative and doctrinal implications.
The interpretation of a constitution is crucial to its legitimacy. For instance, in the United States, the resistance to using foreign sources in interpretation is based on the idea of preserving the will and power of the American people. This view aligns with conventionalist representational constitutionalism.
The concept of legitimate political authority is often linked to political obligations. Locke, for instance, argues that individuals consenting to a political body are obligated to submit to the majority's decisions. However, some scholars distinguish between legitimacy and political obligations, highlighting that they are separate questions.
