Constitutional Legitimacy: an International Ill and Gap in the Literature?
Originally published February 25, 2011, by the Centre for Strategic Research and Analysis (online April 1, 2014).
[This short essay is now, thankfully, due for an update. Advances in the academic literature on constitutions and their democratic legitimacy but also the uptake of democratic innovations such as deliberative citizens’ assemblies (see Ireland’s conventions for example) do show that there is much more to say, now, against my claim that focus on constitutional democratic legitimacy is (or rather was) lacking. I was, for example, recently reminded of Thomas Jefferson’s view that the “earth [read constitution or laws] belong to the living” as Timothy Brennan writes and that constitutions should be rewritten, or at least re-consented to/reconsidered, every 19 years. Terence Ball has interesting things to say on this too in his Environmental Politics article].
The central argument of this work is that “democratic constitutional legitimacy”  probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).
This work was conceived in 2007. It was a finding that came out of a particularly unique (or at least I thought it to be) review of the extant literature concerning the history of democracy. That was during the early stages of my doctoral research. The central question that gripped me then, and continues to hold me now, is whether we can determine if democracy has a historically reasoned number of endemic problems which are still to be proven to be present today. In my doctoral dissertation  I reasoned there to be seven problems of this nature: one of them being constitutional issues, or what many have come to call “constitutionalism” (see, for example, Nergelius, 2008; Tsagourias, 2007; Arjomand, 2007;  Krey, 2009; and Klabbers, 2004).
I was not able to investigate this endemic problem to a greater degree until recently. The central question of this investigation concerns constitutional legitimacy: specifically democratic legitimacy. It is important to keep this in mind as I argue this specific problem area of constitutionalism to be a gap in the literature few have contributed to. One exceedingly important contribution in this regard comes from Chambers (2004). She convincingly argues
that as our notions of autonomy and respect have evolved and become more sensitive to pluralism, there has been a corresponding shift in the popular sovereignty stories we find plausible. Those stories can no longer rely so heavily on hypothetical arguments but must include what citizens say on the subject of their own constitution. This means that successful constitution-making is not only about entrenching the right first principles, it is also about including citizens in the process of constitution-making in the right way. I call this move to inclusion, the democratization of popular sovereignty. (Chambers, 2004: 153)
The extant literature has produced diverse arguments regarding which parameters an institution must meet to be considered legitimate (see, for example, Thornhill, 2008; Shvetsova, 2005; Richards, 1986; and Estella, 2005). And in a previous work, I have attempted to show that my theory of basic democracy  might be used as a measure for democratic legitimacy. This work is brought into this discussion because it may allow us to use a set of basic democratic parameters to measure whether a constitution (in its formation or subsequent amendments) conforms to democratic legitimacy. And I reason this investigation to be of utmost importance as, through my limited cognitive abilities, it seems this is not something we are widely thinking about.
For an institution to be democratically legitimate, it is argued that it must be based on at least two core premises: communication and inclusivity. In other words, there must be substantial evidence showing that the pluralities of any polity or society affected by a constitution should be involved in the process. It is, after all, a legal document that structures a country’s supreme laws.
A short thought experiment may have some utility here. Let us take the United States of America’s (hereafter “USA”) constitution as our case study. The formation and ratification of this document was done in secrecy for the obvious reason that the members involved in this endeavour did not want to be hung for treason. This was an important strategy for the cause of the USA’s secession from the British Empire. However, we must still ask ourselves if this process was done in an inclusive manner. In a manner that permitted the wide discussion of the document and the involvement of all vested interests: of course not. But if we look into later work on the constitution in the form of amendments, we see that the processes of inclusivity and communication were not followed either. Here, however, we no longer have the ability to reason that such was not possible on account of angry King George the 3rd. We see a failure of democratic thinking, and hence, a failure of legitimacy.
This thought experiment can probably be extended to any constitution one might wish to scrutinize for democratic legitimacy. Let us take China as a good contemporary example. The latest constitution was ratified and put into use in 1982, which is helpful as the process the state took to form this legal framework is rather recent (see White III, 2009; Holcombe, 1946; Cohen, 1978; and Das, 1984 for further evidence). We see that Holcombe (1946:2), criticizing a previous constitution of China, states that a central tenet of Confucianism is that the “people must have faith in their rulers” or else there is nothing for the state to stand on. The same can be said for the constitution of China only that a critical analysis of the document using the parameters of democratic legitimacy will be necessary as “faith” is probably easy to manufacture through clever public relations. It is felt that a cursory analysis of the most recent Chinese constitution, or previous constitutions, will show that inclusivity and dialectics were completely insufficient in the process.
A good counter-argument to my work is the process of “constitutional development” (see Kellogg, 2009). We might argue that because of judicial and legislative review as well as proposed amendments with popular referendums, constitutions will continue to reflect the current population it oversees. But judicial and legislative review is not a sufficient guarantor for the inclusion of the vested pluralities. This is common knowledge especially when we consider much of the critical literature regarding representative governmental and judicial systems. Now amendments to the constitution are rarely tied with popular referendums unless the amendment is going to severely impact the state (we can see referendums used in cases of the secession or creation of territories). However, this brings us yet again into the depths of another body of critical literature dealing with the problems associated with referendums in that they are not a sufficient institution for dialectic participation.
Perhaps what might be of use in this work is the consideration that we probably will need to improve upon or develop new institutions to increase the legitimacy of our constitutions. This could be assisted through internet and software for the countries that have a wide diffusion of such technology, or radio and SMS for countries that do not. It could be a process of several referendums, or tiered-governmental discussions and preliminary votes. It could also incorporate periods of discussion and counter-argument between votes. We might even see the necessity of having every tier of government from local to country-state vote “yes.” The possibilities in this regard are many. What is worrying is that most, if not all of them, are not being used or widely engaged.
To add some depth concerning my main argument, mulling over any constitution in this way is not a recent phenomenon. In 1930, A. K. Rogers was questioning the almost holy reverence in which Americans held their constitution. Let us take a closer look:
There are few things more characteristic of American politics than its professions of regard for the Constitution [notice the capitalized ‘C’]. A vague notion has existed that a particular form of law is somehow the necessary foundation and guaranty of our liberties; it is there everlastingly to depend upon, and to relieve us from the necessity of facing and settling matters of principle. This notion of law as an entity existing apart from the hesitating opinions and wavering wills of men in a higher realm of pure reason [I disagree with this elitist position] is a product of that inveterate love of the human mind for glittering generalities which is always likely, when uncorrected, to lead us into trouble in the practical world [this is an important point]. And especially when we find it utilized for the express purpose of putting a check upon the experimental spirit which is the natural corollary of democratic theory, the situation merits all the critical attention it is now beginning [emphasis added] to receive. (Rogers, 1930:289)
That was written over 80 years ago, and is still a relevant argument today. We can see that the American constitution holds a sacred place in popular culture from films, to art, to activism, and to certain pieces of parochial political analysis. In the context of the USA, the pluralities within that country would do well to distance themselves from this almost mystical attachment to a document removed from current realities. If that does not give us reason for concern, I am uncertain as to what will. There is, however, one point from Barnett (2003) which, although I do not agree with his analytic structure, theoretical reasoning, or conclusion, is lucid and poignant to the point I am trying to make.
The Constitution’s legitimacy cannot, then, simply be assumed [note once more the capitalized ‘C’]. Unless we openly confront the question of its legitimacy, we will never know whether we should obey it, improve upon it, or ignore it all together. It is, therefore, extremely odd that, for all the verbiage published annually about the Constitution of the United States, one almost never hears the issue of its legitimacy addressed systematically. Perhaps this is because, for many, the Constitution is sacred and any serious treatment of its legitimacy would have to admit the possibility that it does not pass muster. It is as though we are afraid to find that there is no man behind the curtain. (Barnett, 2003: 111)
Let’s look at this thought experiment from a different angle. The constitution was initially conceived and built by a select few men, of Caucasian descent and colonial background. Women, indigenous people (the rightful owners of the Americas), Africans, and nearly the entire majority of other colonial men with vested interests in the USA were not included in this process. The document was formed by this select few to address a specific political situation: even a cursory glance at the USA’s constitution can lead one to this conclusion.
So we are left with a document created by a select few, one that addresses a set of specific political demands from the late 18th century and one that was not representative of the wants or needs of the plural societies in the USA. This document now governs a plurality, population and set of political contexts vastly different to the situations of 1763-1812. When we think of any constitution in this way, I think we immediately create a white elephant: one that asks us how this is logical.
As earlier mentioned, some might argue that subsequent amendments to the USA’s constitution have made it legitimate, or more legitimate than before. But without the participation and discussion of these proposed amendments by all vested pluralities in American society at the time, we simply cannot consider amendments to the constitution a democratic victory. This is often a good time to branch of into Kantian ethics and argue that certain amendments are still legitimate even if they did not happen to satisfy inclusivity and dialogical requirements because they were “a good.” I am inclined to agree with this, especially in regard to empowering women, African Americans and indigenous peoples. But we are left with the question of whether amendments of this nature could have been better: whether they could have been more representative of the aforementioned peoples’ wants and needs. But that is a discussion better suited to a different forum than the one herein.
I am now stuck in something of a theoretical and practical mire. This discussion can lead us to the conclusion that perhaps all modern constitutions are not democratically legitimate, or at least severely lacking in this regard. The extant literature has been explaining to a greater degree that the nexus of an independent judiciary, a bi-cameral government and the allowance of a civil society to exist are insufficient guarantors of legitimacy in government. Judiciaries do not open their decisions to inclusive pluralistic discussion (see Bellamy, 2007); lower or upper houses of government are very well-covered by the literature in regards to the short-comings of the representative governing system; and simply giving space for civil society to operate in is not as effective at keeping government accountable, transparent and anti-corrupt as previously thought. This has been leading academics, practitioners and activists into seeking structural reform for our democratically styled systems. An example of this, and perhaps a poor one, can be seen in Chapter 7 of my doctoral dissertation.
The mire I am in concerns the following questions: are we ethically bound by our own demands of democratic rights to reform our constitutions in an inclusive manner allowing for consensus to be reached through discussion? And if this is the guarantor of constitutional legitimacy, how often are we to do this? Will frequent referendums suffice? What are the periods of time, stages of votes, or other decisional structures for such a process? Is there a percentage of the population that must vote? If not, what percentage of the voting body is required for an amendment to be considered legitimate (surely not 51%)? Who is to regulate this process independently (should “independently” ever be possible) and what teeth will such a body or bodies have?
What strikes concern in me is that these questions are not answered. What is perhaps cause for even greater concern is that some of these questions are not widely asked or thought about (consensus or deliberative angles are, however, hot topics). I think this is evident for academic thought as well, or at least the literature has so led me to reason. I hope that this work might make a small contribution. That it, in the very least, will bring greater attention to this gap in the literature and our set of concerns in cosmopolitan society.
I simply cannot accept that a text written by a select few, in a way that was not representative by any democratically legitimate means of the vast plurality of a given society, is the supreme law of a completely different society in a completely different political situation. It is theoretically absurd and confounding in the practical dimension of consideration. Perhaps this small work might assist in our understanding of modern problems with constitutions. Hopefully it will lead to works by greater minds than my own paltry one so that we may derive greater insight into this important realm of thought.
Arjomand, Saïd Amir. 2007. “Islamic Constitutionalism,” Annual Review of Law and Social Science. 3: 115-140.
Barnett, Randy E. 2003. “Constitutional Legitimacy,” Columbia Law Review. 103 (1): 111-148.
Bellamy, Richard. Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy.Cambridge: Cambridge University Press.
Chambers, Simone. 2004. “Democracy, Popular Sovereignty, and Constitutional Legitimacy,” Constellations.11(2): 153-173.
Cohen, Jerome Alan. 1978. “China’s Changing Constitution,” The China Quarterly, 76: 794-841.
Das, Naranarayan. 1984. “China’s New Constitution: Triumvirate on Trial,” 20: 47.
Estella, Antonio. 2005. “Constitutional Legitimacy and Credible Commitments in the European Union,”EuropeanLawJournal. 11(1): 22-42.
Holcombe, Arthur N. 1946. “Chinese Political Thought and the Proposed New Constitution,” The Journal of Politics, 8(1): 1-23.
Kellogg, Thomas E. 2009. “Constitutionalism with Chinese Characteristics? Constitutional Development and Civil Litigation in China,” International Journal of Constitutional Law, 7(2): 214-246.
Klabbers, Jan. 2004. “Constitutionalism Lite,” International Organizations Law Review. 1: 31-58.
Krey, Patrick. 2009. “Constitutionalism 101,” The New American. 25(11): 23-28.
Nergelius, Joakim. (ed). 2008. Constitutionalism: New Challenges: European Law from a Nordic Perspective.Leiden: Brill.
Richards, David A. J. 1986. “Constitutional Legitimacy and Constitutional Privacy,” New York University Law Review. 61: 800-862.
Rogers, A. K. 1930. “Constitutionalism,” The International Journal of Ethics. 40(3): 289-304.
Shvetsova, Olga. 2005. “Mass-Elite Equilibrium of Federal Constitutional Legitimacy,” Constitutional Political Economy. 16: 125-141.
Thornhill, Chris. 2008. “Towards a Historical Sociology of Constitutional Legitimacy,” Theory and Society.37(2): 161-197.
Tsagourias, Nicholas. (ed). 2007. Transnational Constitutionalism: International and European Perspectives.Cambridge: Cambridge University Press.
White III, Lynn T. 2009. “Chinese Constitutional Currents,” Modern China, 36(1): 100-114.
 Dr. Jean-Paul Gagnon is a social and political theorist with a Ph.D. in political science. He completed his doctorate at the Queensland University of Technology under the aegis of Australia’s prestigious Endeavour Award. This article is derived from a working paper titled “Constitutional Legitimacy: Defining a Gap in the Extant Literature.”
 “Democratic constitutional legitimacy” or the “democratization of popular sovereignty” (Chambers, 2004:153) addresses the fact that most, if not all, constitutions in this world were conceived and implemented in non-democratic ways. The majority of constitutions and subsequent amendments were not done in an inclusive manner and did not have extensive dialectical frameworks for individuals to engage with. This throws the legitimacy of constitutions into light as from a democratic perspective; these legal bodies appear more despotic than democratic.
 See http://eprints.qut.edu.au/39440/1/Jean-Paul_Gagnon_Thesis.pdf.
 I do have my reservations concerning the legitimacy of a constitution being pegged on the principles of Islam unless this is, of course, derived from an inclusive and dialogically-based process concerning the entire societal plurality governed by an Islamic constitution.
 See http://www.tfd.org.tw/docs/dj0602/001-022%20Jean-Paul%20Gagnon.pdf for more information about this theory.
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