Democracy’s ruling hand

The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, ‘an autonomous force’ that provides ‘an external untouchable rule of the game’. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance.