keywords: constitutionalism, legitimacy, democratic theory, constitutional patriotism, reflexivity, path dependence, Jürgen Habermas, Frank Michelman
abstract: Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. Theparadox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that a developing constitution needs some standard to guide it towards legitimacy. Without such a standard, constitutional reform will be aimlessly indeterminate. After rejecting proposed solutions to these paradoxes based on political contestation, culture, and “constitutional patriotism,” I outline an alternative based on the ideas of dynamic constitutionalism and reflexive citizenship. This solution draws on material, structural, positive characteristics of the law to show how a dynamically evolving constitution can promote its own legitimacy from within, resolving both paradoxes in one stroke.
Paradoxes of Constitutional Democracy
Kevin Olson The idea of a democratically self-constituting people has a singular grasp on our imagination. A new nation boldly asserts its independence from a dominating dictator, colonial power, or occupying force. It declares itself sovereign and performatively constitutes itself as such by democratically ratifying a constitution. In this favorite story, democratic constitution is both an act whereby a nation is founded and a legal document resulting from that act. It is, we believe, the ultimate expression of popular sovereignty and national self-determination.
Although the births of the developed Western democracies have long ago passed into history, there have been several significant waves of national self-creation during the past half-century. The end of colonialism brought a host of new nations into the world and freed many others from domination. Nineteen eighty-nine saw a wave of democratization following the breakup of the Eastern Bloc. The new century has similarly witnessed the infant steps of several Islamic regimes under the anxious watch of Western powers.
In an era of democratization, nation-building, and “democratic transitions,” it is all the more pressing to ask how a people can best constitute itself democratically. Recent experience in Eastern Europe and the Middle East cautions that it is particularly important to investigate the problems that might be encountered along the way. The idea of a people constituting itself through democratic means is rife with contradictions. It is subject to an inherent bootstrapping problem: democracy is both a necessary feature of such a project and its intended result. This reveals a circularity at the heart of constitutional democracy. Democratic citizens cannot create the same procedures that are required to institutionalize democracy itself. Legitimate procedures structuring democracy cannot, in short, be a prerequisite for legitimate procedures structuring democracy. Constitutional democracy – in its pure form at least – is self-referential and inherently paradoxical.
The paradoxes of constitutional democracy can seem so troubling that proposed solutions pale in comparison. In this essay I will outline two such paradoxes and search for a way around them. Particularly useful for this task are Frank Michelman’s acute diagnoses of the problems of constitutional democracy and Jürgen Habermas’ persuasive attempts to redeem it. Drawing on recent debates between them, I will frame the paradoxes as a useful challenge rather than a reason for retreat. These problems have a great deal to say about how law can be made democratically and, more importantly, under what conditions this can occur. They provide an important standard for choosing amongst various combinations of democracy and law. Paradox gives us reasons to reject some such combinations while providing justification for others. After setting aside proposed solutions based on political contestation, culture, or “constitutional patriotism,” I will outline a preferred alternative. It centers around two traits of constitutional democracy that I will call dynamic constitutionalism and reflexive citizenship. This solution emphasizes the material, positive character of the law, particularly the sense in which its development is a path dependent historical process.
1. The paradox of the founding
The paradoxes of constitutional democracy arise precisely from the conjunction of democracy and law. Following a principle of popular sovereignty that has a long history in the Western tradition, democratic law-making holds that people ought to be able to consent to the laws under which they live (e.g. National Assembly of France 1789). Democratic citizens encounter problems, however, when they must rely on law to constitute themselves as a law-making body. Democratic law-making becomes paradoxical when it must establish the very conditions for its own institutionalization.
Frank Michelman has identified one such paradox, which we can call the paradox of the founding (Michelman 1996; 1997; 1998, 91; 1999, 4-11, 33-4). It shows that a legal and political order cannot be democratically founded, at least not in a procedurally legitimate sense. Imagine that a people comes together to establish a democratic constitution. For the sake of convenience, call them the Founders. In order to undertake this task, the Founders must first have some understanding of what it means to be a people who will form a constitution. They must constitute themselves as a group, deciding who is entitled to participate in the constitution-forming process and who is excluded. Further, the Founders must agree on the process they will use to establish laws and what form the constitution will take. Such an understanding is necessary to coordinate action, to make sure that everyone agrees about who has a say in the new constitution, what the outcome of the constitution-forming process should look like, and so on. The Founders’ task, in other words, requires a set of procedures to regulate the process of becoming a people and forming laws. Since this project is a democratic one — the project of an entire people — the understanding they have of their joint undertaking must be shared and public.
To form a public understanding of their communal project, the Founders must first develop procedures that will allow them to accomplish the preliminary, ground-clearing task of setting up an understanding about how to proceed. Their deliberations must themselves be guided by some idea about what is to be decided and who may decide it. The Founders must, in other words, devise ground rules that will allow them to set up ground rules for constitution-founding. Such an understanding will in turn have to be politically produced.
At this point, the paradoxical nature of the Founders’ project becomes apparent. Any democratic attempt to create a constitution requires a previous constitution that has already established democratic procedures. There is an infinite regression of procedures presupposing procedures, each necessary to form the procedures following it. The Founders will therefore be paralyzed in the position of needing a set of procedures that explains how to go about forming procedures. The process of founding a constitution therefore can never start.
Structurally speaking, the paradox of the founding is regressive in nature. Starting in the present, we pick some arbitrary point in the future at which we would establish a legitimate system of constitutional democracy. It rapidly becomes clear that to get to that future some intermediate steps must first be traversed. None of these steps is possible without still earlier ones, however, and so on. In the end we are forced to conclude that a purely constitutional-democratic future is not possible. The attempted project regresses back to its starting point, from which it cannot depart.
Legitimacy is clearly central to the paradox of the founding. A first step in founding a constitution is impossible because it cannot be legitimately accomplished. A legitimate first step would need to be formed through normatively acceptable procedures. Such procedures cannot exist, however, because by definition the first step in law-making is not preceded by a normatively acceptable procedure. If there is no such procedure, however, law-making cannot be judged legitimate. Properly speaking, then, the paradox of the founding is all about legitimacy. It would not be a problem to create an illegitimate system of laws de novo. This could simply be done by force: “obey these laws or suffer the consequences.” Such laws would be formed without procedural guidance; they would depend on someone’s unilateral, procedurally unregulated will (Keenan 2003, 41-54; Rousseau  1987, bk. 2, chap. 7). They would not, therefore, be legitimate laws.