LEGITIMACY, THE SOCIAL TURN, AND CONSTITUTIONAL REVIEW: WHAT

POLITICAL LIBERALISM SUGGESTS

Frank I. Michelman*
draft, September 2014
please do not cite or quote without permission

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Legitimation-by-Constitution (the Idea). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Political-Liberal Thought. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. SOCIOECONOMIC RIGHTS IN A LIBERAL CONSTITUTIONAL CONCEPTION.. . . . . 6
A. A Standard Worry.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Four Questions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Justice: SER commitment as an ideal demand of fairness in the basic structure.. . . 8
2. Legitimacy: SER commitment as a minimal condition for expectation of loyalty. 10
3. Constitutionalization: SER as a liberal “constitutional essential”. . . . . . . . . . . . . . 13
4. Judicialization.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
III. THE TWO PROCEDURALIZATIONS OF LBC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. A Discursively Cogent Performance Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. The First Proceduralization (Reprise). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. The Second Proceduralization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. The problem unfolded. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. A possible solution?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
IV. GENEALOGY OF AN IDEA? WEAK-FORM JUDICIAL REVIEW. . . . . . . . . . . . . . . . . . 20
A. The Bind. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. An “Experimentalist” Response. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. A Complication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
V. FURTHER SIGNS AND ECHOES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. Realist Constitutional Scholarship.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Counter-Constitutional Advocacy (American).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
C. The Political Constitution Under Siege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

*
Robert Walmsley University Professor, Emeritus, Harvard University. I am indebted for trenchant comments
on a prior draft to Alessandro Ferrara, Martin Loughlin, Mark Tushnet, and Johan van der Walt. I cannot hope in this
paper to address all of the good questions their comments raise, but I hope to do so in future work.
This paper is adapted from my presentation at a Workshop on Social Liberalism, Faculty of Law, Economics
and Finance, University of Luxembourg, 7-8 October 2013. My thanks to the Faculty, Dean Stefan Braum, and
Professor Johan van der Walt for organizing and hosting the occasion, and to fellow scholars – Danie Brand, Oliver
Gerstenberg, Dieter Grimm, Fritz Scharpf, Johan van der Walt, and Karin van Marle – for rich contributions to the
discussion.
 I. INTRODUCTION

A. Legitimation-by-Constitution (the Idea)

The “legal objects” known as constitutions might or might not also figure symbolically
in processes by which a country’s population develop and sustain a communal spirit and
collective identity.1 Alongside or as a part of the “integrative” function we thus theorize for
constitutions, a function of legitimation perhaps deserves a focus of its own. Of course these
two functions would be closely intertwined.2 Both would operate on the level of the figurative
and representational,3 even as the operations of both would also be parasitic on a public
apprehension of the constitution’s actual, effective control – its “normative function” – in the
conduct of real-world affairs.4 Granting these close connections, isolation of a legitimation
component from the rest of the integrative effect may still attract us as investigators of the play
of constitutional consciousness in the social world.

We shall here be concerned with what Martin Loughlin calls the constitutional
imagination. As Loughlin persuasively reminds us, ideas about a country’s constitution – of
what it consists, what work it does – are typically alive in the skeins of “narrative, symbol,
ritual, and myth” through which people envision a political domain and so “shape . . . political
reality.”5 If so, if we thus posit the ideational level as a potentially productive force in social
affairs, then a special interest should attach to the following fact (if and where it is one): the
inhabitation of constitutional consciousness by a sense of the legal constitution’s indispensable
service as a platform for legitimation of the state. Such a fact would point toward effects on

1
Dieter Grimm, Integration by constitution, 3 INT’L J. CONST. L. 193, 193-5 (2005).
2
Reference (in all but name) to a constitution’s legitimation function as I shall develop it here appears in Grimm,
supra, at 192 (noting the constitution’s use as a long-term “standard of judgment” for official behavior and sundry
resulting benefits to social coordination and stability).
3
See id. at 194-95.
4
See id. at 194-95, 199-200.
5
See Martin Loughlin, The Constitutional Imagination, 77 MOD. L. REV. (forthcoming 2014). See also Duncan
Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought In
America, 1850-1940, 3 RESEARCH IN LAW & SOC. 3 (1980) (positing the existence of legal consciousness as “a set
of concepts and intellectual operations that evolves according to a pattern of its own, and exercises an influence on
results distinguishable from those of political power and economic interest”).

2
social outcomes distinct from any we might foresee simply from a constitution’s representation
to its constituents of their distinct, collective identity as a self-standing, unified people or
nation.6

By legitimation, I mean the social and communicative processes by which a country’s

people sustain among themselves a sense of assurance of the deservingness of its political
regime of general and regular support. On the level of political philosophy, the idea of the
constitution as a platform for legitimacy finds expression in John Rawls’s proposal – named
by him as “the liberal principle of legitimacy” – that enactments by political majorities can be
justified to dissenters in any given case (regardless of which side of the case you might think
true justice and policy would favor) by a showing that the winners have acted within the terms
of a good-enough constitution.7 On the level of mundane political rhetoric, “it’s constitutional,
after all” (meaning at least constitutionally permitted but perhaps also positively
constitutionally called for) works in many countries as a formidable riposte to those who
demand to know why they should be expected to accept in good spirit the compulsion of some
law that they (not crazily) have found to be outrageous and oppressive.

Inspired by the lead of Justice Grimm,8 I will speak of the Rawlsian proposal – with
whatever ironical tinge you may find the expression to carry – as one for “legitimation by
constitution.” Sometimes, for convenience, I will reduce that to “LBC.” When I speak of LBC,
I will always mean the idea of LBC. The reference will always be to the idea of the
constitution’s indispensable service as a platform of legitimacy. I posit, as a hypothesis, the
activity of that idea in constitutional consciousness, so as to consider possible resultant effects
on constitutional practice and debate. As a prime case in point, I will offer the recent growth
and spread, within the world of broadly-speaking liberal constitutional thought, of receptivity

6
Compare Loughlin, supra:
The narrative schemes of Hobbes, Locke and Rousseau [which together fix the parameters of the modern
constitutional imagination] present contrasting accounts of an imaginary past . . . [each with a view to]
open[ing] new ways of conceiving political reality for the purpose of motivating us to accept the authority
of a particular type of constitutional order.
7
See below Part II(B)(3).
8
See Grimm, supra note 1.

3
to the idea of “weak-form” judicial constitutional review. I will suggest a possible correlation
of that development with a spread, within that same world, of conviction along on an entirely
different front, regarding the so-called socioeconomic rights (“SER”) of citizens vis-a-vis their
states. I will suggest that LBC (the idea) provides a hinge between these two developments.

B. Political-Liberal Thought

I will develop both the idea of SER and the idea of LBC in terms of the political-liberal
outlook within which both have recently found prominent philosophical endorsement. I hope
thereby to present their respective possible attractions in as liberally non-sectarian a
terminology as the topic will allow.

“Political” liberal thought envisions possibilities for a more inclusive – thus a broader,
looser – sort of explanation for the pursuit of liberal policies than those on offer (say) from the
economic doctrine of market freedom or the libertarian doctrine of limited government. The
project involves an interpretive reconstruction of liberal policies as outcomes of a quest for
fairness in the basic terms of social cooperation, among citizens conceived as “free and equal,”
in modern conditions of a plurality of clashing views of the good held by members of society,
with resultant disagreements about major matters of political and social practice. No doubt
market freedom and constitutional government can both claim a place in such a conception,
and political liberalism delivers a pronounced but qualified yes to both. The qualifications,
though, are heavier than in some other liberal conceptions. My focus here will be on two ways
in which they are: an embrace of socioeconomic rights as essential components of any
legitimation-worthy constitution (the “social turn” of my title), and a related reconsideration
of the role and work of judicial overseers in the pursuit of constitutional compliance by
politicians and the public. Political-liberal thought, I will suggest, leads to complications both
of economic liberalism’s faith in the justice of the market and – relatedly – of classical-liberal
insistence on judicial supremacy in the constitutional-legal field.9

9
See, e.g, RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTITUTION 77-80 (2014) (reviewing pros and cons
and ending with “little doubt . . . about the intrinsic worth of the strong doctrine of judicial review” as “a matter of
first principle”).
Perhaps depending on the recent directions of change in the political climate where you are, I can see how some

4
 That latter suggestion – of retreat from judicial supremacy – may seem headed for alliance
with a party that marches these days under the banner of Political Constitutionalism.10 Not so,
however, if or insofar as that company might define itself as adamantly opposed to any kind
and degree of an external, institutionalized supplement to electoral and parliamentary politics,
for assurance of the constitutionality of state operations. Political-liberal constitutionalism
cannot make do – or so I will suggest – without a distinct and dedicated institutional site for
pronouncements on disputed questions of constitutionality.11 The constitution-dependent,
liberal principle of legitimacy necessarily depends on such an institutional service, not only
or primarily to set up a negative blockade against wayward or oppressive political majorities
but also, and more fundamentally, to provide positive support for an ongoing process of
public-opinion formation in the interest of securing (or recuperating, as the case may be) the
moral legitimacy of the state regime.

It may strike you that I have just drawn a distinction without a difference, because (you
may think) it is mainly by stoutly and visibly blocking the path of would-be oppressive
political majorities that a court of law can act to secure and uphold the legitimacy of the
regime. I will hope to show you differently. I aim to suggest how attribution of a legitimacy-
sustaining function for the constitution can be distinctly receptive to so-called “weak-form”
conceptions of judicial constitutional review, and also, correspondingly, to allowance into our
constitutional law of requirements on the state – such as, for example, socioeconomic rights
– whose fulfillment (or not) will not, in the main, be crisply decidable by applications of trans-
political legal norms through technically legal discourses.

readers might feel that talk of a “reconstructive” or “social” turn in liberal thought takes Humpty-Dumpty liberties
with the term “liberal,” or at any rate fails to connect with the realities of ideological baggage with which that term
is stuck. All I can say in response is that there are lots of social liberals around, including me, who would not easily
give up their claim to represent liberalism at its truest and best. I will try to keep matters sufficiently clear by speaking,
where it matters, of “broad-sense liberal.” See also note 79, infra.
10
See, e.g., RICHARD BELLAMY, POLITICAL CONSTITUTIONALISM: A REPUBLICAN DEFENSE OF THE
CONSTITUTIONALITY OF DEMOCRACY (2007).
11
See below Part III(C).

5
 II. SOCIOECONOMIC RIGHTS IN A LIBERAL CONSTITUTIONAL CONCEPTION

A. A Standard Worry

Socioeconomic rights (“SER”) envision a targeted set of social outcomes – roughly, that
no one at any time lacks the means of access to the fulfillment of certain basic material needs.
Corresponding obligations would then fall on the state.12 Let us leave open for now whatever
questions may spring to mind about how further to define the state’s obligations.13

A country’s constitutional law might or might not contain a commitment to SER. In a

political-liberal view, that suggestion sets going a series of questions, possibly up to the
number of four. We start with (1) a question of ideal political morality. Political liberalism
works, in part, by developing an ideal conception of basic attributes required of any political
regime aspiring to justice in modern pluralist conditions. Is that ideal conception receptive or
not to the idea of SER? If not, there would be little cause to pursue further the matter of
socioeconomic commitments in constitutional law. But if so, the next question may be (2)
whether a socioeconomic commitment is not only a requirement for the ideal justice of the
regime but is also a condition for its minimal-moral legitimacy; and then, if so, whether (3)
that necessarily would provide a reason to write that recognition into the country’s
constitutional law. And then if, but only if, we find that it would will we reach the fourth and
final question – about how, if at all, our writing the commitment into constitutional law (if we
do) will involve the country’s courts of law in deciding, from time to time, the adequacy of the
state’s performance in the field of social provisioning.

I shall call these four questions respectively the questions of justice, legitimacy,
constitutionalization, and judicialization in regard to socioeconomic rights. I have set up the
questions as a conditional series, so that the first “no” puts a stop to going further. We must

12
Because social outcomes are bound to depend heavily on patterns of conduct by actors in society, the expected
state exertions might cover not only the state’s own directly distributive actions but also its responsibility for the
bodies of regulatory and general background laws that guide, sanction, and incentivize conduct in markets, families,
and so on. See, e.g., Dennis Davis & Karl Klare, Transformative Constitutionalism and the Common and Customary
Law, 26 S. AFR. J. HUM. RTS. 403 (2010).
13
See below Part III(A).

6
notice, though, that it may not be possible to work fully through the second query (regarding
legitimacy) without having already in mind the fourth one (regarding judicialization). For
suppose you thought that engagement of the country’s judiciary in SER adjudications would
be flatly unacceptable – say, because it would carry the judiciary so blatantly across a border
between law and politics as to pose an excessive risk to the overall legitimacy of the
constitutional regime. That might lead you to tip the dominoes backwards: An insuperable
objection against putting questions of SER compliance into the adjudicative arena becomes
a reason to keep SER out of the constitution, which then becomes a reason to deny that a
commitment to SER can be required for the legitimacy of the regime – and all of that
regardless of whether such a commitment is demanded by your or my conception of ideal
justice.

I recall here what I have in the past called an American “standard worry” about a
constitutionalized commitment to socioeconomic rights. “By constitutionalizing
socioeconomic rights,” I wrote (giving voice to the standard worry),

you would force the American judiciary, and especially the Supreme Court, into a hapless
choice between usurpation and abdication, from which there would be no escape without
either embarrassment or discreditation. Down one path [would lie] the judicial choice to
issue concrete, positive enforcement orders in a pretentious, inexpert, probably vain but
nevertheless resented attempt to reshuffle the most basic resource-management priorities of
the public household against the prevailing political will. Down the other [would lie] the
judicial choice to debase dangerously the entire currency of rights and the rule of law – the
spectacle of courts openly ceding to executive and legislative bodies a nonreviewable
privilege of indefinite postponement of a declared constitutional right. In sum, a formal act
of writing or reading socioeconomic assurances into constitutional law would pose grave
risks of serious damage to the integrity (and to public confidence therein) of the country’s
practices of constitutionalism, of law and legality, and of democracy, upon which political
legitimacy depends.14

14
Frank I. Michelman, Socioeconomic rights: explaining America away, 6 INT’L J. CONST. L. 663, 683 (2008).

7
 So goes the standard worry. A main task of this essay is to see how political-liberal
convictions about justice and legitimacy push back against it. The rest of this overview sets
out more fully the steps in political-liberal thought that lead toward the pushback.

B. Four Questions

1. Justice: SER commitment as an ideal demand of fairness in the basic structure

Political-liberal thought starts out from a construction (or idealization) of a political

society as a large-scale scheme and practice of cooperation across a diversely inspired and
motivated population of citizens. (It thus falls squarely within the larger social-contract
tradition in the history of political ideas.) “Co-operation” is the germinal notion. Already
embedded within it is a conception of the citizens – the cooperators – as individualized agents:
each one a distinct “source of claims and projects,”15 each endowed with an own life to live
for the better or for the worse, each possessed of certain “moral powers” and a “higher-order
interest” in their development and exercise – powers not only to “have, to revise, and rationally
to pursue” a conception of the good or of one’s aims in life but also to “understand and . . . act
from principles” of due regard for others likewise endowed and situated.16 (In these ideas –
these linked intuitions of human individuality, agency, and reciprocity of recognition – lie, to
my mind, the essence of any possible liberalism.)

We come now to the notion of a set of “basic terms” of social cooperation. The basic
terms are those made manifest in the society’s major political, social, and economic
institutions – its “basic structure” – which combine to produce the differing positions,
conditions, and prospects of life that various persons will occupy from time to time.17
Consider, then, a population of would-be social cooperators, reciprocally bound in recognition

15
MARTHA NUSSBAUM, FRONTIERS OF JUSTICE 32-33 (2006) (describing sympathetically Rawlsian
contractualist theory).
16
JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 18-19 (Erin Kelly ed., 2001); JOHN RAWLS, POLITICAL
LIBERALISM 74 (1993).
17
A society’s basic structure consists in its “main political and social institutions [and the way] they fit together
into one system of social cooperation [and] assign basic rights and duties and regulate the division of advantages that
arises from social cooperation over time.” RAWLS, RESTATEMENT, supra note 16, at 10.

8
of each others’ common humanity and motivation by the moral powers and corresponding
higher-order interests. It seems there would arise within this population a common concern for
fairness in the basic terms of social cooperation amongst them. Social justice, then, would be
equatable with the satisfaction of the presumed desire of free and equal persons, within a
company of likewise free and equal persons so recognized, for fair basic terms of social
cooperation.

Some notion of economic assurance or safety-net seems a likely implication. Modern

liberals can hardly help but presuppose a largely market-based economy within a mainly
democratic-majoritarian lawmaking system. These, for us, are prime basic-structural supports
for political and economic freedom. But then – so runs the line of thought – we cannot fairly
and reasonably expect our primordially free and equal cooperators to submit their fates to the
operations of these freedom-serving structures, without also committing our society, from the
start, to run itself in ways aimed at securing to everyone the conditions anyone would require
to be or become a competent participant in them, a respected and self-respecting contributor
to political exchange and contestation and furthermore to social and economic life at large.
Fairness – justice – in the basic structure may thus quite defensibly be held to necessitate a
principle potentially corresponding to a socioeconomic right.18 It would be a principle of
assured provision for the “basic needs” of all citizens19– a “social minimum,” as John Rawls
calls it, defined as a package of material goods and services up to the levels required for a

18
In fact, John Rawls found that justice ideally requires, in addition, a distinct and farther-reaching economic-
distributional commitment, to what Rawls called a principle of “fair” (in pronounced contradistinction to merely
formal) equality of opportunity. See RAWLS, RESTATEMENT, supra note 16, at 42-43. Such a principle might, for
example – depending on how we assess the relevant social and economic facts – point toward any or all of a quite
muscular antidiscrimination policy, jobs policy, industrial policy, family policy, fiscal-redistributive policy, and
educational adequacy going beyond the most basic level. Here we focus on the distinct claim that justice for the basic
structure requires assured provision for everyone’s basic needs.
19
RAWLS, RESTATEMENT, supra note 16, at 47-48.

9
person’s capability to “take part in society as [a] citizen[],”20 and “to understand and to
fruitfully exercise” his or her capacities as a self-actuating person.21

I hope now to have established, at least for the sake of the argument, a quite modest
proposition: not that the Rawlsian principle of the guaranteed social minimum is the only way,
or is necessarily the best conceivable way, to satisfy the economic-distributional requirements
of liberal social-systemic justice, but only that there is nothing like an antipathy – rather, there
is a strong, natural sympathy – between the principle of assured fulfillment of everyone’s basic
needs and the deeper inspirations of liberal political thought. Such a principle is one that
liberals can find strong reason to support, not just as a happenstance political preference but
as a dictate derived from a more encompassing conception of political morality to which, as
liberals, they feel committed.

2. Legitimacy: SER commitment as a minimal condition for expectation of loyalty

So much for justice. Legitimacy, however, is something else.

Political liberals take for granted that the basic structure will saliently include a legal
system. They join with liberals of all stripes in the belief that stable, effective, social ordering
by law is an indispensable requirement for decent forms of human social coexistence. They
share, furthermore, the belief that the stability of any legal order depends on a general
expectation of regular compliance with the order’s duly issued laws by everyone within range,
regardless of inevitable, sincerely held, reasonable disagreements about the wisdom or
rightness of those laws.22 And yet it remains the case, in the sight of a political liberal, that
every concrete instance of a liberal rule-of-law regime presents unremittingly a question of
moral justification. That is because persons living within a liberal order inevitably – this is

20
RAWLS, LIBERALISM, supra note 16, at 166.
21
Id. at 7.
22
See JOHN RAWLS, A THEORY OF JUSTICE 211 (rev. ed. 1999) (discussing “Hobbes’s thesis”); Frank I.
Michelman, Ida’s Way: Constructing the Respect-Worthy Governmental System, 72 FORDHAM L. REV. 345, 345-47
(2003) (elaborating on this view).

10
what John Rawls calls “the fact of reasonable pluralism”23 – will find themselves sincerely,
within the bounds of reason, divided over not just the wisdom or prudence of various laws and
policies but about their compatibility with morality and justice. And then how – liberals must
ask – can a demand for general compliance with duly issued laws be justified morally,
consistent with a view of citizens as individually free, equal, and responsible moral agents?

“Legitimacy” is an idea that presents itself in answer to that question. We speak here of
legitimacy in what is often called a moral or normative sense of that term, as opposed to a
purely sociological or empirical use of it.24 Legitimacy in the normative sense sets a minimum
public standard for the operation of a state regime, a floor of decency required to authorize
morally a civic demand for a regularity of compliance by citizens with the laws and policies
that issue from that regime.25 A denial of legitimacy to a state’s practice of legal ordering thus
casts into doubt any claim of that state’s citizens to a moral permission to collaborate in
support of the system’s demands for a regularity of compliance with its laws by everyone.
Liberals will be careful, then, about setting the legitimacy bar too high. One might think, for
example, that a state could be, in the minimal-moral sense, legitimate as long as its political
structures were ostensibly democratic in design and its operations displayed, in practice, a due
regard for a small core of non-negotiable, so-called “basic liberties” of persons – even though
(let’s say) that state was plainly delinquent, by our standards, in the field of economic-
distributive justice.26

23
RAWLS, LIBERALISM, supra note 16, at 36-37.
24
Richard Fallon, for example, differentiates between legitimacy in a “sociological” sense referring to current
facts of acceptance by the populace of the regime’s claim to merited political authority, and legitimacy in a “moral”
sense referring to the regime’s “worthiness to be recognized,” according to some measure that we as external
evaluators bring to the table. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV.
1787,1795-96 & n. 25 (2005) (quoting from JÜRGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF SOCIETY
178 (Thomas McCarthy trans., Beacon Press 1979)).
25
See id. at 1799.
26
Compare RAWLS, LIBERALISM, supra note 16, at 227-29.

11
 Why introduce such a gap between justice and legitimacy? It seems we do so in order to
allow for human imperfection and for honest political disagreement.27 In any possible human
practice, not only must we expect shortfalls from justice, but so must we expect serious
disagreements about what counts as a shortfall. If full and perfect justice were to set the
standard for legitimacy, no modern real-world, concrete legal order could ever be deemed truly
deserving of support by any fraction of the citizens remotely approaching a totality. A
legitimacy standard, it appears, in order to do its assigned work – provide a public justification
for the regime’s projection of pressure and force to ensure a prevailing regularity of
compliance with its duly issued laws – must be more accommodating of real-world political
imperfection and disagreement than any corresponding ideal standard of justice conceivably
could be.

Let us, for the moment, accept without further question the political-liberal proposal for
a comparatively relaxed standard for the moral legitimacy of a state regime – relaxed, that is,
by comparison with your or my ideal standards of justice. Does or does not the relaxed
standard rightly – or let us say liberally – include the state’s commitment to the social
minimum, the provision for everyone’s basic needs? John Rawls answered “yes” to that
question.28 A state, he evidently thought, would gravely weaken its claim to the presumptive
compliance with its laws of all who live their lives within its domain if – having within its
grasp the means to do so at no more than a moderate cost to anyone’s enjoyment of the
system’s goods, and without violation of anyone’s basic liberties – it failed of commitment to
eliminate the traps of soul-defeating, structural poverty that it seems must inevitably otherwise
arise and persist within a liberal market-based economy.

Again I pause to state in modest terms a point I hope to have established, at least
sufficiently to go on with the argument: Not that the retreat from justice to legitimacy provides

27
Rawls, for example, wrote that unjust institutions can sometimes be tolerable because “a certain degree of
injustice . . . cannot be avoided, [or] social necessity requires it, [or] there would be greater injustice otherwise . . .
.” John Rawls, Legal Obligation and the Duty of Fair Play in JOHN RAWLS: COLLECTED PAPERS 117, 125 (S. Freeman
ed., 1999).
28
He did so (as I explain below) by including, as one of the liberal “constitutional essentials,” a guaranteed
“social minimum” covering the “basic needs” of all citizens. See RAWLS, RESTATEMENT, supra note 16, at 47-48.

12
a sure-fire solution to the quandary of bottomless, reasonable disagreement (a hard question,
which we have yet to take up);29 and not, either, that the Rawlsian social-minimum is, beyond
all possibility of counter-argument, a condition of minimal-moral legitimacy for a liberal state.
But only that neither of those propositions is alien to liberalism; only, that both are claims for
which compelling motivations can be found in the deepest layers of liberal thought.

3. Constitutionalization: SER commitment as a liberal “constitutional essential”

John Rawls, I said, answered “yes” to the question of treating the state’s commitment to
the social minimum as a condition of minimal-moral state legitimacy. He did so in a particular
way, of which we must now take notice: by conferring on the social-minimum commitment
the rank of a “constitutional essential.” This calls for a bit of explanation.

Rawls posed as follows what he called “the problem of political liberalism:”

How is it possible that there may exist over time a stable and just society of free and equal
citizens profoundly divided by reasonable though incompatible religious, philosophical, and
moral doctrines? . . . How [may] deeply opposed though reasonable comprehensive doctrines
. . . live together and all affirm the political conception of a constitutional regime? What is
the structure and content of [such a regime]?”30

As a part of his response (already, as you can see, prefigured in his statement of the
problem), Rawls proposed that citizens in an up-and-running political regime, calling upon
each other for continued general loyalty to that regime, could base those calls on observations
of conformity by the regime’s operations to the terms of an established legal constitution. The
coercive deployment of law by democratic majorities, he wrote, can be accepted by all – is
“justifiable to others as free and equal” – as long as it is done “in accordance with a
constitution the essentials of which all citizens as free and equal may reasonably be expected
to endorse in the light of principles and ideals acceptable to their common human reason.”31

29
See below Part III(C)(1).
30
RAWLS, LIBERALISM, supra note 16, at xx.
31
Id. at 137.

13
 Rawls called that the liberal principle of legitimacy.32 Notice how it depends on the state’s
having in force a legitimation-worthy constitution (as we may call it), meaning one whose
content measures up to what would be required to carry the moral weight of legitimation. The
thought is that reasonable citizens, fated to disagree intractably over the ultimate rightness and
goodness of the policies from time to time enacted into law by political majorities, can
nevertheless agree to accept the results as long as those are kept within bounds set by a
constitutional higher law that itself contains an adequate and proper set of “essential”
guarantees. What it comes to, in effect, is this: If a country’s constitution is adequately
democratic in design, and if the constitution guarantees due respect for certain core rights and
interests of persons, then that kind and degree of rightness in the constitutional laws can make
it fair to call on everyone for compliance with approximately all of the further laws, rulings,
and decrees that issue in accordance with the procedures, requirements, and limitations laid
down by that constitution.33 A legitimation-worthy constitution confers upon all other laws and
decrees that duly issue from it an entitlement to that outer layer of institutional respect we
denominate as legitimacy. In other words: legitimation-by-constitution (“LBC”).

We may conclude as follows: When Rawls classes commitment to the social minimum
as a constitutional essential, he means the commitment is strictly required for the minimal-
moral legitimacy of that country’s entire, extensive practice of coercive legal ordering. And
so we move another step along the way towards a highly credible endorsement, from well
within the bastions of liberal consciousness, of a constitutional right to a social minimum:
from a demand of ideal justice, to a condition of state legitimacy, to incorporation in

32
See id. at 137, 217 (proposing “the liberal principle of legitimacy”), 227-28 (specifying the “essential”
components of a legitimation-worthy constitution).
33
Rawls describes as follows the “essential” content of a legitimation-worthy constitution:
a. fundamental principles that specify the general structure of government and the political process
[including] the scope of majority rule; and
b. equal basic rights and liberties . . . that legislative majorities are to respect: such as the right to vote and
to participate in politics, liberty of conscience, freedom of thought and association,[and] the protections
of the rule of law.
RAWLS, LIBERALISM, supra note 16, at 227.

14
constitutional law. We have reached the point of what we may call the “social-liberal” branch
of political-liberal thought.

4. Judicialization

That then brings us to the fourth question, regarding judicialization. Perhaps this one
seems trivial – already, in effect, decided by a judgment that inclusion of a commitment to
energetic pursuit of the social minimum is required of any legitimation-worthy constitution.
So to say would be, however, a mistake. Experience shows the contrary. So insistent can be
the objection against judicialized supervision of the state’s economic policies that it sets going
the domino effect – the standard worry – that I mentioned near the beginning of this overview:
If judicialization of economic policy is deemed intolerable, then economic policy, it may seem
– and, hence, the state’s pursuit of the social minimum – cannot be allowed to be a
constitutional essential. And if it cannot be a constitutional essential, then – according to the
political-liberal doctrine of legitimation-by-constitution – neither can it be deemed a condition
for the minimal-moral legitimacy of the state’s regime of legal ordering; and all of this
regardless of any conviction we might hold that it is, indeed, a requirement of justice.

We see, then, that in order to defend its treatment of a social-minimum guarantee as a

constitutional essential, the social-liberal branch of political-liberal constitutional thought must
find a way to disarm or evade the standard worry. Only thus can it carry through in full its
promotion of constitutionalized socioeconomic rights: from demand of justice, to condition
of legitimacy, to incorporation in constitutional law (the idea of LBC at work) – and then,
finally, to deflection of concern about a judicialization of economic policy.

John Rawls did not himself dwell much on the deflection. He apparently took for granted
that law courts can make authoritative determinations of shortfalls from fulfillment of basic
needs without noticeable strain on normal adjudicative methods and skills.34 Such has not,
however, been – nor does it show signs of becoming – the prevailing view among
professionals in the field of constitutional law. Professionals disposed toward agreement with

34
See RAWLS, LIBERALISM, supra note 16, at 228-29.

15
the proposition of SER as an essential component of a legitimation-worthy constitution thus
find themselves in a bind, as we are about to describe.

III. THE TWO PROCEDURALIZATIONS OF LBC

A. A Discursively Cogent Performance Standard

Recall, from the start of Part II, our initial, somewhat cursory definition: Socioeconomic
rights envision a targeted set of social outcomes – roughly, that no one at any time lacks the
means of access to the fulfillment of certain basic material needs. “Corresponding” obligations,
we vaguely added on, would fall upon the state. But then what obligations correspond?
Obligations how strict, for exertions how strong? No doubt the idea of a “right” to the state’s
exertions presupposes some standard for a sufficiency of effort in the indicated direction. But
that standard need not necessarily be “whatever it takes to make it be the case that everyone
has by tomorrow a decent house to live in” (and so on); and in fact, for reasons more or less
obvious, it probably will not be that. It will more likely be a standard qualified and guarded to
leave room for democratic lawmakers to take account of other principles – liberty, dignity,
responsibility, security, general economic prosperity – that might also have traction in that
society’s ordering of political values.

Take, as a rough example, something like this: “The state shall, in all its fields of
operation, formulate its policies and direct its conduct with a view to fulfillment of SER targets
as soon, as widely, and as dependably as possible, paying due regard to other constitutional
values and availability of resources.” Such a standard quite glaringly lacks the property of
“ruleness” or strong formality.35 Now, strict ruleness is nowhere deemed a requirement for a
norm-statement’s inclusion as a requirement of constitutional law. Consider, however, a
weaker property that I will name as cogency in public discourse. A norm-statement is cogent
insofar as it connects with its relevant audience – fits into its cultural context – in such a way
that debates about its correct or preferred application will be, for that audience, more or less

35
Compare, e.g., MAX WEBER, 2 ECONOMY AND SOCIETY 56-57 (Guenther Roth & Claus Wittich eds., 1968)
(“Law is . . . formal to the extent that . . . only unambiguous general characteristic of the facts of the case are taken
into account.”)

16
persuasively examinable and decidable by appeals to publicly available reasons, or a balance
of them. Discursive cogency is an obviously necessary property for any supposedly binding
constitutional guarantee, even if strict ruleness is not. Our discussion to follow assumes that
a constitutional commitment to SER can be and will be cast in terms that satisfy discursive
cogency. That assumption, however, will not by itself suffice to meet the standard worry.

B. The First Proceduralization (Reprise)

Democracies decide on potentially coercive laws and policies by majorities in divided

votes. When we ask how liberal citizens hope to justify the resulting impositions on free and
equal dissenters, political liberalism replies with its proposal for LBC: As long as the country’s
constitution sets up institutions of political democracy, and as long as it furthermore guarantees
respect for certain basic rights and interests of persons, then that kind of rightness in the
constitution allows each of us rightly to call upon the others for a general disposition to comply
with constitutional laws. The solvent for disagreement thus lies – or so runs the hope – in a
proceduralization of the question, a deflection of it from one frame of inquiry (is this law truly
what it ought to be?) to another (is this law constitutional?) where we expect a publicly
certifiable answer to be more readily at hand.36 Call this the “first” proceduralization of LBC.

C. The Second Proceduralization

1. The problem unfolded

We have noticed how a supposedly legitimation-worthy constitution can do the

legitimation work we want it for – that is, can provide the basis for a publicly assertable claim
of the current regime’s deservingness of a continued regularity of compliance from citizens –
only under expectations of tolerance by citizens for deviations from justice as reasonable
citizens variously would detect them.37 It is not clear, though, how tolerance of that kind can
finally answer the difficulty posed by disagreement. The tolerance must have limits. However

36
See Frank I. Michelman, Dilemmas of Belonging: Moral Truth, Human Rights, and Why We Might Not Want
a Representative Judiciary, 47 U.C.L.A. L. REV. 1221, 1234-36 (2000) (explaining this sense of proceduralization
and its application to problems of legal controversy).
37
See above Part II(B)(2).

17
relaxed it may be from a full and strict standard of justice, a constitutionalized standard of
legitimacy must still, after all, be a substantially demanding, discursively cogent standard. Yet
it cannot be a self-applying rule. Its correct applications to testing cases can no more be certain
or self-certifying – can no more be proof against the ravages of disagreement – than all-out
justice itself. It seems evident that no liberally satisfactory such standard can possibly be
framed with both sufficient breadth to serve as a widely acceptable clause in a public contract
on legitimacy, and at the same time sufficient closure to fend off good-faith interpretative
controversy at the point of application; not “freedom of expression;” not “arbitrary arrest;” no,
not even “torture,” to take the extreme case.

No doubt the frequency of problematic cases can be reduced by weakening the standard.
If (say) all that were required for a legitimation-worthy constitution were to be its credible
commitment to periodic elections of officials and to such libertarian fundamentals as freedom
from torture and arbitrary arrest, reasonably debatable questions of constitutionality would crop
up less often than if the legitimation-worthy constitutional essentials additionally included such
liberal commonplace items as procedural justice, freedom of expression, and equality before
the law. But it seems that the full set of essentials for any liberally legitimation-worthy
constitution must include the latter or their look-alikes.

And there, then, is the full problem for any liberal project of legitimation-by-constitution.
That project depends on an expectation of convergence by the public on an operative
conception of the moral-minimum conditions for collaboration in the country’s practices of
coercion by law, in the face of persisting, heartfelt disagreements about the good and the right.
That cannot be accomplished by a resort to abstractly stated “essentials” on which all can
agree, but only because they paper over the persisting disagreements that inevitably will
surface at the point of application of those essentials to concrete policies and actions. The
requirements and constraints those terms would impose on state lawmaking will have to be
such that we can expect a more-or-less dependable public convergence on whether they are
being fulfilled in practice, in application, not just in the word but in the act. No assumption
of public discursive cogency in the constitution’s prescripts will meet the difficulty. Discursive

18
cogency in a standard neither contradicts the fact of reasonable pluralism nor nullifies
disagreement at the point of application.

2. A possible solution?

It does not follow, though, that no solution is available. And that is because it does not
follow that citizens must always be sure in their own minds, or must always concur directly
with fellow citizens, about the finally correct answers to questions of fulfillment of the
constitutional essentials. A second proceduralization could come to the rescue. For suppose
we had in operation a dedicated institutional service whose considered judgments regarding
such questions were in fact widely trusted to fall within the bounds of honest, discursive
defensibility – not, of course, infallibly but with a frequency sufficient to qualify those
judgments as publicly authoritative for legitimacy-sustaining purposes. An obvious example
would be a court of law exercising powers of constitutional review. It is, I believe, precisely
with a view to this crucial function – to assist in the enablement of political legitimacy on
liberal terms – that many liberals, including John Rawls, defend the use of courts as
authoritative public arbiters of the fulfillment of the constitutional essentials.38

Granted, there is nothing in the idea of the second proceduralization to require that the
trusted institutional service be identifiable as a law court, or that its deliberations take a form
that meets our notion of a proper adjudication. The “service” could be (say) a committee of the
Parliament – or even the Parliament sitting from time to time in committee of the whole –
specifically commissioned to pronounce upon the constitutional compliance of legislative bills
and agendas, using the standard forms of parliamentary debate. The fact is, however, that
courts and adjudication are the site and the process that are cemented into those positions by

38
I quote here what I take to be the crucial Rawlsian text:
[The idea of public reason does not mean that the judges agree with one another, any more than citizens
do, in the details of their understanding of the constitution. Yet they must be, and appear to be, interpreting
the same constitution in view of what they see as the relevant parts of the political conception and in good
faith believe it can be defended as such. The [Supreme Court’s] role as the highest judicial interpreter of
the constitution supposes that the political conceptions judges hold and their views of the constitutional
essentials locate the central range of the basic freedoms in more or less the same place. In these cases at
least its decisions succeed in settling the most fundamental political questions.
RAWLS, LIBERALISM, supra note 16, at 237.

19
our currently dominant political cultures. Consider, then, how the stage is set where two further
conditions are met: (1) a sense is widespread of the legal constitution’s indispensable service
as a platform for legitimation of the state (LBC), and (2) proposals for constitutionalized SER
fall foul of currently prevailing idealizations of the province and operations of law courts. In
those conditions, it may be expected that those who become convinced that SER assurances
nevertheless belong among the essential components of any legitimation-worthy constitution
will be receptive to thoughts of modification or revision of those currently prevailing
idealizations. (Those dominoes, it seems, can tip in either direction.)39

IV. GENEALOGY OF AN IDEA? WEAK-FORM JUDICIAL REVIEW40

A. The Bind

Liberals have accepted more or less on faith – although not always without qualms41 – that
a regime’s deviations from a due regard for core components of the classical liberal “negative”
liberties (of the person, of conscience, thought, expression, association, privacy, and so on) can
be decided, more or less satisfactorily to the public – and despite lingering disagreements
around the edges – by a court-like authority. Not so, however, for questions about the
conformity of a state’s current practice to a standard of due regard for antipoverty. Such
questions have tended to strike us as too intricately complex, too endlessly debatable, for courts
of law even to address, much less dare to decide against an apparent contrary drift of
democratic public opinion. To take an example I have used before:

Let’s say Parliament this year has done all of the following: replaced welfare with workfare,
increased by one half the budget allocation for job training, reduced the minimum wage by
one-third, extended the collective bargaining laws to cover employers of as few as ten
workers, abolished rent control, budgeted an annual sum of 30 billion crowns for housing

39
See above Part II(A).
40
Thoughts in this section trace back to stimulation from Brian Ray, Extending the Shadow of the Law: Using
Hybrid Mechanisms to Establish Constitutional Norms in Socioeconomic Rights Cases, 2009 UTAH L. REV. 797
(2009).
41
See, e.g., Frank I. Michelman, The Constitution, social rights, and liberal political justification, 1 INT’L J.
CONST. L. 13, 32 n. 66 (2003).

20
 allowances and job training, increased top-bracket income tax rates by five percent, . . .
doubled the size of the employment discrimination mediation corps, and approved a new
tariff schedule somewhat less protective than its predecessor, in exchange for reciprocal
concessions from abroad.42

Is that state in compliance with a constitutional standard of (say) “effort reasonably

directed to fulfillment [of SER targets] as soon and as widely as possible in the light of other
basic constitutional values and availability of resources?” Is that a sort of question we think
a court of law is fit to decide? Liberals have been strongly habituated to say “no,” that standard
fails to present what our discourse of justiciability calls a “judicially manageable” rule of
decision.43 It poses too “polycentric” a problem.44 It would be so often resistant to anything
approaching a sharply reasoned or logically demonstrable answer that inviting courts to decide
it would pose an undue risk to overall judicial credibility and authority. The “standard worry”
is on the loose.

Suppose, now, that you are a worker in the vineyards of constitutional law. Constitutional
consciousness where you are incorporates the idea of LBC. In the manner of Rawls’s “liberal
principle,” it looks to a country’s higher-law constitution to serve as that country’s dedicated
platform for legitimacy, and it furthermore looks to courts of law to provide the needed
confirmations of constitutional compliance in conditions of expected, frequent public
disagreement (the “second proceduralization”). All of this you know in your bones as a
socialized constitutional actor. Now suppose, in these conditions, you also hold the belief that
some commitment – say, SER – for the fulfillment of which no judicially manageable standard,
as conventionally understood, can be written, is a requirement for any morally legitimate state
regime. You are, then, in a bind.

42
Id. at. 30-31.
43
See generally Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119
HARV. L. REV. 1274 (2006).
44
See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 394-95 (1978) (“We may
visualize this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a
complicated pattern throughout the web as a whole.”) For a measured rebuttal of the “polycentric” worry, see SANDRA
LIEBENBERG, SOCIO-ECONOMIC RIGHTS 72-75 (2010).

21
 The bind might perhaps be generalized as a thesis on modern constitutional thought,
preoccupied as that thought is with mappings of institutional situses – legislatures,
administrations, courts of law (or it might be some altogether different configuration) – along
with assignments to each of capacities and limitations, competencies and functions. In any
given instance of a mapping, the idea of legitimation-by-constitution might or might not have
purchase. Where that idea has in fact taken hold, a constitutional actor partaking of it or
responding to it – and I include, for this purpose, constitutional scholars among constitutional
actors – will be subject to a constant pull towards finding an acceptable fit between her current
sense of the requirements for the moral legitimacy of a political regime and the institutional
mapping she affirms or accepts as settled. Movement on one side of that function must always
portend the possibility, at least, of a compensating movement on the other.

B. An “Experimentalist” Response

That’s, of course, merely a speculation. Now here is an observation to lay beside it. Legal
scholars working detectably within the gravitational field of the broadly speaking liberal-
constitutional tradition (I do not say they all would self-identify as “liberal”) are these days
turning out a profusion of theories and conceptions of so-called “weak-form”45 – “dialogical,”46
“experimentalist,”47 “catalytic”48 – judicial review. We can take as illustrative a “democratic
experimentalist” model of judicial review.49 The court acts in the first instance as instigator and
non-dictatorial overseer of engagements among stakeholders very broadly defined, among
whom state actors hold no privileged position, in an ongoing process of interpretative
clarification of what a constitutionally declared right of (say) “access to health care services”

45
See Mark Tushnet, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN
COMPARATIVE CONSTITUTIONAL LAW 18-42 (2008). See also Brian Ray, Evictions, Avoidance, and the Aspirational
Impulse, 5 (2013) CONST. CT. REV. (forthcoming, 2014); David Landau, Giving Weak-Form Review Teeth, 5 (2013)
CONST. CT. REV. (forthcoming, 2014).
46
See Rosalind Dixon, Creating dialog about socioeconomic rights, 5 INT’L J. CONST. L. 391 (2007).
47
See, e.g., Oliver Gerstenberg, Negative/positive constitutionalism, ‘fair balance,’ and the problem of
justiciability, 10 INT’L J. CONST. L. 904 (2012).
48
See Katherine G. Young, CONSTITUTING ECONOMIC AND SOCIAL RIGHTS 167-91 (2012).
49
See, e.g., Gerstenberg, supra; YOUNG, supra, at 150-55.

22
consists of in substance and, simultaneously and reciprocally, of what sorts of steps by what
classes of actors are concretely (in the current conditions of society, economy, and so on) now
in order toward the achievement of due and adequate service to everyone’s core interest – a
process of successively clarified “benchmarking” as it is sometimes called. As the discursive
benchmarking moves along and the emerging answers gain public recognition and
authorization, the court might turn up the heat on deployment of its powers of review. At a
relatively early stage, what the court presumes to dictate will be agendas of questions to be
addressed and answered by one or another stakeholder group or class. At later stages, the court
starts calling for substantive compliance with an emergent best-practice consensus, in the name
of the constitutional right (say) to access to health care services. The screws tighten on what
can count as a reasonable, sincere governmental response. The court serves as arbiter but it
never has or claims a door-closing last word.

C. A Complication

My introduction of the experimentalist model is meant to suggest how the question of state
compliance with a constitutionalized antipoverty commitment might be credibly
proceduralized, while evading the standard worry of liberal constitutionalism. The model might
thus open a path of lessened resistance to treating antipoverty as a liberal constitutional
essential. Of course any such hope would have to contend with a more orthodox liberal
equation of properly judicial action with “strong-form” judicial review. The orthodox will
protest that the experimentalist tribunal is not “doing law” at all, and much less is it
implementing a rule of law over politics; it is rather, to the contrary, subjecting itself to the
“rule” (if one could call it that) of a drift of public opinion that might or might not be according
to law. The court appears as a (supposed) stronghold of systematic legal-normative reason
under constant threat of invasion by vagrant, empirical desire. A reconstructive view,
somewhat to the contrary, would likewise seek from the court its special input of normativity
– but not input directly to a legal-rational deduction of outcomes; rather, input to processes of
public-opinion formation with which, for legitimacy’s sake, that normativity itself must sooner
or later be harnessed – a collaborative, supportive role, then, for the court, rather different to

23
that of a protectorate against a public opinion for which normativity supposedly is neither here
nor there.50

I do not here try to pursue the question of a reconciliation of the orthodox and
reconstructive impulses. My suggestion for now is simply that the introduction of the
experimentalist model and its weak-review companions would seem to fit the bill as a response
to crosscutting pressures from social-democratic political-moral impulses and a fixture of LBC
in constitutional consciousness. The more these models gain in credibility and influence, the
more space they open for inclusion of SER as an essential component of a legitimation-worthy
constitution, while holding at bay the standard worry of liberal constitutionalism.51

V. FURTHER SIGNS AND ECHOES

I have been advancing here both a thesis about the world and a suggestion of its possible
significance. The thesis is that of the implantation in constitutional consciousness of the idea
of the constitution’s indispensable service as a platform of legitimation. The suggestion is to
look out for aspects of constitutional practice and debate that the thesis might help us to
understand, explain, or appraise. Appraisal, I hasten to add, does not imply approval. I do not
intend here any claim that confirmation of the effects (in practice) of the workings of LBC (the
idea) would necessarily be good news. Obviously, it would not be that – at least not
unambiguously – to anyone inclined toward doubt that regime-legitimation is an effect we have

50
The complication posed by LBC to the work of a constitutional court is a topic I plan to address in future work.
It seems that a legitimacy-sustaining court would have to engage in a kind of sympathetic consultation with public
opinion that runs against the grain of classical judicial supremacy, even as that court also has to sustain public
confidence in its independent confirmations of compliance with the constitutional essentials. Writing by Robert Post
and Reva Siegel gets nicely at the dilemma. See Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism
and Backlash, 42 HARV. CIV. RTS. CIV. LIB. L. REV. 373 (2007). See also Frank I. Michelman, Legitimacy, Strict
Scrutiny, and the Case Against the Supreme Court, in ROBERT POST ET AL., CITIZENS DIVIDED: CAMPAIGN FINANCE
REFORM AND THE CONSTITUTION 182 (2014) (examining Dean Post’s reflection, in his recent Tanner Lectures, on
the complex relations among public opinion, judicial authority, and democratic legitimacy); Martin Loughlin. Towards
a Republican Revival?, 26 OX. J. LEG. STUD. 425, 435, 437 (2006) (insisting on the need to keep open the “agonal
public space” – the space of “unity in disagreement” – that alone can sustain a “common solidarity” in support of
“public institutions and practices – the fundamental laws”).
51
See above Part II(A).

24
reason to welcome at all (much less to treat as a goal for collective action);52 or that, if it is, the
right or best way to pursue it is by setting up a country’s constitutional law as its contract for
legitimacy.53 I do not here take a position on either of those questions of value. My inquiry has
in that sense been “positive,” not “normative.”

In support of this article’s positive suggestion – of the possible observable effects of LBC
in constitutional practice and debate – I have so far offered only one instance: the emergence
of weak-form models of judicial review at the hands of constitutional actors of whom we might
suppose that many would also be receptive to a social-democratic inflection of the full set of
conditions for political legitimacy. Is there any more to be said along these lines? I offer next
a quick survey of some possible places to look.

A. Realist Constitutional Scholarship

We see today a good deal of scholarship – much of it distinctly “realist” in spirit – with
which the LBC thesis appears to dovetail nicely, or which it could possibly help to support or
explain, or modify or refine. Take, for example, empirical studies that question whether the
writing of protections for individual rights into constitutional law improves respect for those
rights in practice.54 The thesis of the inhabitation of constitutional consciousness by LBC
provokes the thought that the answer might be more complex than the question on its face lets
on. The answer might be “no, not directly in the way such-and-such authors have in mind and
seek to negate by the evidence in their study; but maybe indirectly yes, insofar as affirmation
of those rights in the country’s constitutional laws might help to sustain a level of legitimation
of the state, in default of which those rights, or the conditions of life they represent, would be

52
For a recent strong expression of doubt from an American constitutional scholar, see ABNER S. GREENE,
AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A LIBERAL DEMOCRACY (2012).
53
For a recent American instance of full scale denial, see LOUIS M. SEIDMAN, ON CONSTITUTIONAL
DISOBEDIENCE (2012). For my own milder doubts on this point, see Frank I. Michelman, Reply to Ming-Sung Kuo,
7 INT’L J. CONST. L. 715, 724-26 (2009) (proposing a “governmental totality” conception – as opposed to a
“constitution-as-contract” conception – of the putatively legitimation-worthy political system); Michelman, supra note
22, at 347-49, 360-65 (same).
54
See, e.g., Adam Chilton & Mila Versteeg, “Do Constitutional Rights Make a Difference?” (Coase-Sandor
Institute for Law and Economics Working Paper No. 694 (2d Series) (University of Chicago)), available at
http://ssrn.com/abstract=2480670.

25
less fully realized and enjoyed than under present conditions.” The possibility seems worthy
of investigation.55

Take now, for a second example, inquiries into the wellsprings of acquiescence by a
population – Americans, it quite plausibly would be – in judicial decisions on constitutionality
that they very strongly dislike and believe to be both noxious and wrong.56 One study, finding
that responses differ according to a citizen’s level of “understanding of democratic institutions
and processes,” speculates that, for those at the higher levels, an initial impulse to challenge
or “do something about” an unwelcome decision is countered by thoughts that

the judiciary ought to be respected because [by contrast with the legislature] its
decision-making processes are principled, not strategic, and [its] role . . . is, on occasion, to
tame the passions of the majority. These citizens do not like the outcome, but cede the right
of the courts to make such decisions and recognize that citizens must occasionally acquiesce
to court rulings with which they disagree.57

The suggestion is that citizens go along with the courts out of respect for the manner in which,
or the mindset with which, the courts conducts their business: “Because the decision was made
in a fair way, the thought that it ought to be accepted occurs.”58 From a supposition that these
citizens act under the influence of LBC, an alternative (or additional) and subtly different (less
benign?) sort of explanation might flow: Seeing or intuiting that legitimation of the state rides
on public willingness to accredit judicial decisions on constitutionality, “the thought that [this
one, too] ought to be accepted occurs.”

B. Counter-Constitutional Advocacy (American)

55
Compare, for example, Thomas L. Friedman, “Order vs. Disorder, Part 3,” New York Times, Aug. 24, 2014,
p. SR 1, SR 11 (reporting views of widely followed author Dov Seidman):
Protecting and enabling [cherished] freedoms requires the kinds of laws, rules, norms, mutual trust and
institutions that can only be built upon shared values and by people who believe they are on a journey of
progress and prosperity together.
56
A wide assortment of such studies are described and reviewed in James L. Gibson, Milton Lodge, and
Benjamin Woodson, “Legitimacy, Losing, but Accepting: A Test of Positivity Theory and the Effect of Judicial
Symbols” (Version 94, March 23, 2014), available at http://ssrn.com/abstract=2448710.
57
Id. at 34-35.
58
Id. at 32.

26
 As a third example, I offer the case of recent counter-constitutional scholarship in the
United States. By “counter-constitutional,” I mean scholarship that looks toward relief of our
politics from constitutional shackles as legally debated and judicially construed. Proposed
remedies (I draw here and below from a prior work on this topic59) range from a turn towards
broadly idealized or instrumentalized modes of constitutional interpretation, to institutional
reconstruction (affecting, say, the role and conduct of the Supreme Court), to a stepped-up
reliance on ground-level social mobilizations to preempt the constitutional-interpretive choices
of courts and other official bodies, to a more-or-less complete takeover of
constitutional-constructive work by legislatures and voters.60

Now, vigorous as may be these currents of counter-constitutional advocacy, they almost

all – with one or two notable exceptions61 – stop short of outright anti-constitutionalism. They
stop short, that is, of seeking to dislodge from American political culture its bedrock demand
for submission by the state and its officials to a set of publicly codified, intelligibly debatable
and interpretable norms for the conduct of government business, whose applied meanings may
be open to debate but which no official body, from Congress and the President on down, may
simply cast aside on the spot because it seems all-things-considered better right now to do so.62
In our current run of counter-constitutional utterance we find indictments of major “hard-
wired” constitutional structures63 (say, the electoral college), of specific constitutional
guarantees (say, of the right to bear arms), and of regnant constitutional applications (say, of
the First Amendment to prohibit controls on political spending). Or the critiques may take issue
more broadly with prevailing modes and styles of constitutional-interpretive work, or with
abdication by the people to the Supreme Court of the conduct or control of that work. Hardly

59
See Frank I. Michelman, Why Not Just Say No? An Essay on the Obduracy of Constitution Fixation, 94 B.U.L.
REV 1143 (2014).
60
See id. at 1143-44 (2014) (citing exemplary sources).
61
See id. at 1144 (noting exceptions)
62
See id. at 1149.
63
“Hard-wired” refers to specifically detailed prescriptions for major political structures and procedures, which
cannot be interpreted away. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE
CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 29 (2006).

27
ever do we see a flat-out repudiation of the idea that the American state has and is destined
always to have its higher-law constitution.64 Counter-constitutionalism is one thing; outright
anti-constitutionalism is hardly to be met in present-day America.65 That observation would
seem to chime nicely with (it would not come near proving) the thesis of a present-day fixture
of LBC in the American political imagination, whether operating directly on the motivations
of our constitutional critics, or indirectly through their intuitions of what will and will not go
down with an American public whose minds they hope to dent.66

C. The Political Constitution Under Siege

I now introduce an arguable manifestation of a spread of LBC in the constitutional-cultural

rain-water, which I can only start up here for further pursuit in work still to come. I have in
mind the question of the pending demise of Britains’s political constitution.67 Deeply anchored
in the British past as has been the boast and the fame – and no doubt the wisdom and the
success – of that country’s special sort of constitutional arrangement,68 it seems the idea of a
“political”-not-“legal” constitution began some years ago to fall away in parts of the
Commonwealth hinterland,69 and today the waves of change more than lap at the shores of the

64
See id. at 1149-52 (expanding on these observations).
65
It has apparently been known here in the past. See Louis Michael Seidman, Constitutional Skepticism: A
Recovery and Preliminary Evaluation 4-5, 7 (Jan. 28, 2014) (unpublished manuscript, archived at
http://perma.cc/W8RT-GXP3) (describing, documenting, and analyzing a rich history of challenges by American
constitutional skeptics to “the goodness, enforceability, legitimacy, and workability of the Constitution” – amounting,
in sum, to “doubts about whether moral and political disagreement can be bridged by a legal text” – while also
concluding that the rejectionist stance today stands “far outside the mainstream” of American attitudes toward the
Constitution).
66
For a more extended treatment, see Michelman, supra note 59.
67
See, e.g., Grégoire Webber, Eulogy for the constitution that was, 12 INT’L J. CONST. L. 468 (2014) (reviewing
and citing extensively from MARTIN LOUGHLIN, THE BRITISH CONSTITUTION: A VERY SHORT INTRODUCTION (2013)).
68
See, e.g., ADAM TOMKINS, OUR REPUBLICAN CONSTITUTION 67-114 (2005) (presenting a history of British
constitutional ideas); authorities cited in notes 10, 67.
69
See generally Stephen Gardbaum, THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM: THEORY AND
PRACTICE (2013) (examining invasion of legal-constitutional models into countries having strong historical ties to the
British constitutional tradition).

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sceptered isle.70 Do we see here the signs of a spread of LBC in the local and global
constitutional imaginations? If we thought so, would that bear in any way on how Britons and
others ought to respond? Are these from any point of view – explanatory, evaluative,
prescriptive – questions worth posing?

I do not mean by them that opposition between the ideas of LBC and of the purely political
constitution is an immediately self-evident proposition. It is not. The constitution in the historic
British political imagination does not, after all, appear to have been straightforwardly equatable
with “what[ever] happens.”71 In what has recently been called a more plausible view,72 the
constitution would at any given moment have been cognizable in the terms of a publicly
assertable, aspirational demand on the forms and working of a legitimate political regime – say,
that it respects the claims of free and equal subjects to non-dominated lives;73 and it seemingly
would have been discussable as a set of regulatory norms extractable by argument from a
bounded assemblage of usages, precedents, and laws (with both the bounds and the extractions
being no doubt always open to debate). So, to state the obvious, when Britons of the past have
denounced some act or course of conduct as unconstitutional, they cannot have meant that
something had occurred that lay outside the bounds, descriptively speaking, of “what happens.”
They doubtless could have meant – did mean – that something had occurred that was,
normatively speaking, “not done.”74 And they doubtless did mean, too, that this occurrence –
being, as it was, a “not done” sort of a thing – was also gravely wrong. So the constitution was
not codified, not “written,” but it undoubtedly was palpably there, serving as a platform for

70
See Loughlin, supra note 50, at 425 (reporting a “widespread belief that the British [system] is in a state of
flux . . . ‘between parliamentary supremacy and constitutional supremacy’) (quoting Sec’y of State for Home Dept.
v. Roth [2002] 1CMLR 52 at [71] (Laws LJ)); Tomkins, supra, at 6-33 (describing how “the model of legal
constitutionalism has in recent years become the dominant discourse of public law scholarship in Britain”).
71
J.A.G. Griffith, The Political Constitution, 42 MOD. L. REV. 1, 19 (1979) (“The constitution is no more and
no less than what happens.”).
72
See Webber, supra note 67, at 468-69.
73
See TOMKINS, supra note 68, at 61-64; BELLAMY, supra note 10, at 154-56.
74
See Webber, supra note 67, at 469.

29
claims regarding political acceptability or legitimacy. No clean opposition to LBC is yet in
view.

Yet opposition there very well may be. The idea of LBC seems necessarily to posit as its
“constitution” an objectively freestanding textual object “out there,” definitively exterior and
anterior to the politics it regulates, to which anyone can point with confidence that others will
see there what he sees, never mind disagreements about the prescriptive significations of that
mutually observable text.75 Without that distinct exteriority of the constitution to whatever else
happens to happen in politics, the first proceduralization of LBC could not go into operation.76
But precisely that exteriority is what a less yielding conception of the purely political
constitution – as composed (say) of Oakeshottian “traditions of behavior” that cannot
intelligibly be lifted out of the streams of practice in which they immanently lie – seems
committed to deny.77 If so, then the opposition indeed is stark between LBC and the political-
constitution idea, and my thesis (that the recession of the political constitution might correlate
to a progress of LBC in (even) the British constitutional imagination) would be back on track;
which is where, for now, we must leave it.

VI. CONCLUSION

My main business here – once having laid out the idea of LBC and shown its attractions
within broad-sense liberal political thought – has been analytical, not evaluative or prescriptive.
I have pointed to possible manifestations of the idea’s anchorage in the background
constitutional culture, and also to its bearing on some mid- and higher-level constitutional
theoretic debates. Such manifestations – if that is what they are – might of course enter into our
assessments of the idea’s ultimate moral or practical appeal or its necessity to the support of
a liberal political order. If, after all, the idea of LBC does carry in its train any of the pressures
or effects whose possibility we have noted – an eclipse of historic British constitutional

75
See Michelman, supra note 59, at 1152-54, 1156-67.
76
See above Part III(B).
77
See Webber, supra note 67, at 474, 481-83.

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wisdom, a restraint on popular constitutional contestation (and so ultimately self-rule?),78 or
(somewhat conversely) a dilution of strict and supreme judicial guardianship of core civil
liberties and rights – then its continued progress might not be just the development every
reader would wish for.79 I have not tried to address such questions here.

78
See above Parts V(A), V(B).
79
It is also possible, of course, with regard to any class of rights or claims you might think of, that by
constitutionalizing it you take the risk that the institutions of the second proceduralization will read the right adversely
to the very sort of institutional outcomes you hoped it would promote. (And maybe constitutionalized SER, in today’s
neoliberalizing climates, stand at especial risk of that kind of backfire. See Frank I. Michelman, The Property Clause
Question, 19 CONSTELLATIONS 152, 156-67 (2012); Frank B. Cross, The Error of Positive Rights, 48 U.C.L.A. L. REV.
857, 910 (2001).) Inasmuch as that is a sort of risk that flows generically from constitutionalization, whether or not
done specifically for reasons of LBC, I say no more about it here.

31