The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials
Philosophy & Social Criticism, forthcoming
15 Pages Posted: 2 Feb 2023 Last revised: 13 Apr 2023
Date Written: February 1, 2023
Abstract
What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society.
Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine.
Keywords: Liberalism, John Rawls, Frank Michelman
JEL Classification: k10,k19, k30,k39
Suggested Citation: Suggested Citation