25 Pages Posted: 29 Feb 2004
This essay, written for a symposium in honor of Frank Michelman, explores Michelman's most recent views on constitutional legitimacy. The legitimacy of a constitutional/governmental system is less than full justice and more than mere legal validity. Legitimacy means that the constitutional/governmental system is sufficiently worthy of respect that members of the political community can accept its power to coerce obedience to law and enjoy the goods of political union.
The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect.
This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation.
Keywords: legitimacy, constitutional law, Frank Michelman
JEL Classification: K10
Suggested Citation: Suggested Citation
Balkin, Jack M., Respect-Worthy: Frank Michelman and the Legitimate Constitution. Tulsa Law Review, Vol. 39, p. 485, 2004; Yale Law School, Public Law Working Paper No. 69. Available at SSRN: https://ssrn.com/abstract=510482