Monday, June 09, 2008
A Note on Legitimacy and the Functions of a Constitution
Arguments about the Constitution’s interpretation and about what judges or other political actors do often refer to legitimacy. What does legitimacy mean and what does it have to do with constitutions?
I suppose that we are talking about institutional level legitimacy here.
An institution is presupposed not to be a black box. It has to interact with the environment; so there are two things going on, inputs into the "box" and outputs from it.
What action does a constitution perform? Well it is an actor in the sense it exerts decisive influence on governmental structures and laws. That can be seen as an output.
What is the input? Well, when we amend it.
A kind of functional legitimacy for institutions and constitutions is how well they "do" both: accept appropriate inputs and produce socially approved product.
An argument could be made that since practically speaking the Constitution is extremely hard to amend (i.e. it rejects inputs) than that is a de-legitimizing factor, even if it gets "A's" on the moral, procedural and sociological scales (which it currently doesn't).
"A system of government is minimally legitimate if it has a sufficient combination of sociological, procedural and moral legitimacy. ... Put differently, a system of government is minimally legitimate is sufficiently stable, efficacious, just, and can maintain the acceptance of the vast majority of the people who live under it."
A couple of comments:
1. If I understand you correctly you only address one kind of legitimacy (internal), but constitutions have to answer to another kind of legitimacy as well, the legitimacy of the process and procedure of producing the constitution (external). This can occur in circumstances of first impression, so to speak, such as the US Constitution, or in cases of rewriting, such as happened with the French constitution a few times. The moral or normative environment in which the constitution arises is important not only because it provides a source of legitimacy for the formation of the constitution, but it is the sea of norms by which the constitution and its manifestations can be judged. That is, in order to criticize a constitutional order one must have appeal to another set of legitimate norms. Those are sometimes referred to as international law, customary law, ius gentium or natural law. (I am not suggesting those are synonymous terms.). These non-constitutional sources of norms are those by which justice and morality are understood. Aristotle said a constitution exists prior to the writing, suggesting that something like what we understand as the sociological, if not the scientific, (in addition to the political) could play a role. That is, you say justice is a source of minimal legitimacy, but what is the source of these norms of justice?
2. The categories of “sociology,” “morality” and “procedure” are not of the same kind. Procedure is an aspect of morality, or justice. I am thinking of the concept of “due process.” If procedure is in the moral, that leaves us with the categories of sociology and morality. The moral invokes a deeply historical discourse in political science. In the broader academic context law is a sub-discipline of political science (and is clearly a subject of sociology). So, perhaps it would make more sense to say the relevant two categories are the social and the political. There must be social and political legitimacy. There are internal and external elements to each of those categories. For instance, a comprehensive discussion about migration could only be made if all four sources or areas of legitimacy were developed.
"An argument could be made that since practically speaking the Constitution is extremely hard to amend "
But IS the Constitution extremely hard to amend in a meaningful sense? Or is the lack of recent amendments a result of Congress not wanting amendments the states would gladly ratify, and not needing amendment it wants, because a supine judiciary 'interprets' the Constitution to give Congress any power it really wants?
If I want to do something somebody else is entitled to refuse to consent to, can I really say with any justice that the process for doing it is "extremely difficult" just because they refuse that consent? And by that reason cobble together a process which circumvents their ability to say no?
The assumption here seems to be that the federal government is somehow entitled to easily change the Constitution in any manner it sees fit, whether or not the states like it.
I reject that assumption.
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