Constitutional Legitimacy Unbound
Forthcoming in Philosophical Foundations of Constitutional Law, D Dyzenhaus & M Thorburn eds (OUP, 2015)
41 Pages Posted: 23 Oct 2014 Last revised: 21 Sep 2017
Date Written: February 15, 2015
Constitutions are conventionally perceived to have three dimensions. The first concerns a constitution’s substantive elements. These elements typically include a division of powers specifying a federation or a unitary state, a separation of public powers between legislative, judicial and administrative branches, and an institutionalized form of rights protection. Underlying these substantive elements is usually some conception of the rule of law or legal order, which may or may not – depending on the account – circumscribe fully the exercise of sovereign power. Secondly, constitutions are ordinarily regarded as the supreme law that governs relations between the state and its citizens. And finally, constitutions of democracies are thought to supply democratic and self-contained standards of legitimacy, standards that emerge from ‘We the People’ and thereby express their people’s fundamental and enduring values. In short, this orthodox view of (liberal democratic) constitutions is that (i) their substantive content allocates public powers and protects rights within a municipal legal order, (ii) their structure supplies a paramount legal framework to state-citizen relations, and (iii) their legitimacy rests on their capacity to authorize public power in accordance with local democratic standards.
I argue that the orthodox view is incomplete along all three dimensions. In addition to the allocation of public powers and rights protection, of constitutional status too are the conditions of residence and membership in the relevant political community; i.e., the conditions under which an individual can become a permanent resident or citizen. It follows that the scope of a constitution must be wider than the governance of state-citizen relations. A constitution’s scope must include a cosmopolitan aspect capable of supplying a legal framework to relations between states and foreign nationals. And the legitimacy of a constitution’s cosmopolitan aspect, I argue, rests on the operation of supra-national legal standards and institutions (e.g., international human rights law) within a cognizable legal relationship that obtains between the state and foreign nationals. An important implication of this relationship is that if the state uses force or the threat of force against peaceful outsiders who seek to enter its territory or become members of its polity, it then owes them a weighty duty of justification. Once we have in view the structure and content of the cosmopolitan relationship between the state and non-citizens, we shall see that the same kind of relationship and a generalized duty of justification are necessarily part of the legitimacy of a constitution in the ordinary state-citizen case.
Keywords: constitutionalism, cosmopolitanism, open borders, Hobbes, Kumm, Forst, Benvenisti, rule of law, legality, sovereignty, trustees of humanity
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