Date01 April 2004
Published date01 April 2004
AuthorZehava Zevit
Zehava Zevit
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
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.
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.
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

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