The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials

Philosophy & Social Criticism, forthcoming

Northwestern Public Law Research Paper 23-03

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

Koppelman, Andrew M., The Fluidity of Political Legitimacy: On Michelman’s Constitutional Essentials (February 1, 2023). Philosophy & Social Criticism, forthcoming, Northwestern Public Law Research Paper 23-03, Available at SSRN: https://ssrn.com/abstract=4346268 or http://dx.doi.org/10.2139/ssrn.4346268

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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