A Farewell to Constitutional Authorship? A Critique of the Presentist Turn in the Legitimacy of Constitutional Democracy

摘要

“We the People” and the corresponding concept of constitutional authorship havegripped our imagination of the legitimacy of constitutional democracy since theAmerican and French Revolutions. In contrast to this Big Bang scenario of constitutionmaking,the constitutionalization of the European Union (EU) as a supranational entityis the product of a decades-long process, departing from the Revolutionary tradition ofconstitutionalism. Whether this “presentist” project of constitutionalization withoutmaking a constitution, which is characterized by polyarchical everyday policynegotiations and apolitical judicial decisions in the normality of the constitutional order,will succeed in reconstructing our imagination of political order as an alternative toconstitutional authorship remains to be seen. This paper aims to answer this questionthrough a close inspection of Frank Michelman’s critical engagement with theories ofconstitutional legitimacy. My investigation shows that Michelman arrives at a presentistview of constitutional democracy after pointing out the inadequacy of theories ofconstitutional legitimacy rooted in the Revolutionary tradition of constitutionalism. Iargue, however, that Michelman’s presentist view cannot fully account for thelegitimacy of public institutions in constitutional democracy without presupposing atranstemporal view of identity, which is the reason why Michelman finds constitutionalauthorship in tension with liberalism, and thus unacceptable. By showing thatMichelman’s presentist view of constitutional democracy is coherent with, rather thanbeing at odds with, constitutional authorship, I conclude that the latter will continue toplay a central role in our concept of the legitimacy of constitutional democracy.