FOUNDATIONS OF CONSTITUTIONAL LEGITIMACY: LEGAL-POLITICAL CULTURE, CONSTITUTIONAL APTNESS, AND BASELINE COMMUNITY

• DOI: https://doi.org/10.1016/S1059-4337(03)32004-6
• Pages: 123-161
• Date: 01 April 2004
• Published date: 01 April 2004
• Author: Zehava Zevit

FOUNDATIONS OF CONSTITUTIONAL

LEGITIMACY: LEGAL-POLITICAL

CULTURE, CONSTITUTIONAL

APTNESS, AND BASELINE

COMMUNITY

Zehava Zevit

ABSTRACT

A longstanding question of American constitutionalism emerges out of the

fact that constitutions demand fidelity. By virtue of what is the American

Constitution binding? Zevit contends that many of the explanations of

constitutional fidelity offered today fail to reconcile Americans’ submission

to a Constitution written and ratified by generations of long ago with their

claim (or aspiration) to be self-governing as a Peopletoday. Zevit introduces

one type of explanation (the aptness explanation) that does not contain this

flaw, and, drawing on an expansive definition of culture as a notion that

encompasses the legal-political, offers the concepts of legal-political culture

and baseline community as a framework for assessing the Constitution’s

aptness while maintaining the People’s self-rule. She argues that constitu-

tional aptness secures the foundations of constitutional legitimacy.

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 32, 123–161

© 2004 Published by Elsevier Ltd.

ISSN: 1059-4337/doi:10.1016/S1059-4337(03)32004-6

123

124 ZEHAVA ZEVIT

INTRODUCTION

One of the central questions of constitutionalism is that of constitutional fidelity.

By virtue of what is the American Constitution1binding? What criteria must a

constitution meet in order to merit fidelity? Scholars propose various answers to

this question, ranging from J¨

urgen Habermas’s criterion of ensuring a process

of “opinion and will-formation” (Habermas, 1996, pp. 110–111) to Ronald

Dworkin’s substantive criterion of assuring “moral membership” in the law-

making community (Dworkin, 1996, p. 23). Each of the many justifications for

constitutional fidelity focuses on different characteristics that a constitution (and

the political system that supports it) must have if adherence to it is to be justified.

Unfortunately, the focus on specific criteria and the fact that there is a wide range

of views offered on this matter2obscure the more general question of what (if

anything) justifies constitutional fidelity and legitimates constitutional authority.

In this paper, I outline the general foundations of constitutional legitimacy.

Rather than focusing on the specific justificatory standards typically offered

by constitutionalists, this article addresses general justificatory concerns instead.

In the following pages I offer an account of what constitutional justification

(broadly conceived) requires, and delineate a conceptual framework for assessing

constitutional legitimacy. This account is valuable not only for its substantive

contribution to constitutional debate, but also because it clarifies previous

contributions by offering a perspective from which to assess existing accounts

of what justifies constitutional fidelity, such as those offered by Dworkin and

Habermas, and locating these accounts within the context of a unified debate

whose points of contention are identifiable.

One of the noteworthy features of the account offered here is that it grants

normative authority to political communities. In a field characterized by a

dichotomy between so-called “liberal”3theories and “communitarian”4ones,

introducing community as a normative foundation of constitutional legitimacy

rattles existing notions about the differences between the two. By linking con-

stitutional legitimacy to baseline community this article thus casts contemporary

discussions of constitutionalism in a new,perhaps more complicated, light. Before

getting to complications, however, one must first understand the problem.

THE PROBLEM OF CONSTITUTIONAL FIDELITY

America is a democracy. While it is not completely clear what being a democracy

entails for America, it does mean, at the very least, that there is popular self-

government. This clarification is only partially helpful because, again, it is not

Foundations of Constitutional Legitimacy 125

entirely clear what self-government entails. What is clear is that in a democracy

people are, in some sense, self-ruling. If people are governed by something that is

not, in any sense, attributable to them, democracy does not exist.

Democracy’s promise of self-rule presents constitutionalists with a difficult

question that has to do with constitutional fidelity. Here is the problem:

The majority of America’s Constitution was written and ratified by generations

no longer alive. Nonetheless, Americans continue to view its text as part of their

Constitution, and many of today’s most heated and controversial constitutional

debates center on the clauses that were written long ago. Even more importantly,

Americans continue to submit to these old texts’ normative claims upon their

laws and lives.

Given our commitment to democracy, and our conviction that our present

regime is or ought to be (more or less) democratic and legitimate, we must be

able to reconcile our submission to norms established by a People of long ago

with our claim (or aspiration) to be self-governing as a People today. We must

explain the sense in which Americans’ self-rule manifests itself when they are

bound to constitutional determinations made by previous generations. Unless

the Constitution’s authority can be squared with the grounds for its legitimacy, it

loses its claim to legitimate authority over us.

REASONS FOR CONSTITUTIONAL FIDELITY

There are a number of possible solutions to this “intertemporal”5problem. Con-

sider the following four explanations for the Constitution’snormative bindingness

on us.6According to the first explanation, which I call “self-proclaimed textual

supremacy,” the Constitution itself establishes its superiority by stating in Article

VI that “This Constitution...shall be the supreme Law of the Land” and by

determining the procedures by which it can be altered. Under this view adherence

to the Constitution is justified because the text autonomously binds us to itself.

A second type of explanation, the “social norm” explanation, maintains that the

Constitution is justifiably binding on us because, as matter of social practice, we

have always treated it as binding (and continue to do so now). Michael Perry, for

example, apparently embraces the notion that the Constitution is binding because,

practically speaking, we treat it as such (Perry, 1998, pp. 101–102). Frederick

Schauer, basing his work on the ideas of Hans Kelsen and H. L. A. Hart, endorses

a similar idea (Schauer, 1995).

A third type of explanation, which I call the “authorship” explanation, maintains

that the Constitution is justifiably binding on Americans by virtue of its authorship

(according to some theory of what such authorship, properly conceived, is). What