Respect Worthy: Frank Michelman and the Legitimate Constitution

Abstract

When people gather to celebrate the contributions of a preeminent scholar like Frank Michelman, the most likely focus of discussion will be the important papers that scholar wrote in years past that have helped define a field and have taken on a canonical status. Frank has certainly written his share of those, and in a number of different areas of legal study. But there is special enjoyment in engaging the ideas of a great scholar that are still being formed and polished. So I take considerable pleasure in devoting my remarks today to Frank’s recent work in constitutional theory. This work begins, more or less, with his 1999 book, Brennan and Democracy, and has continued through a series of short papers and essays. Frank’s focus in these essays, as in much of his work generally, is on the intersection between constitutional theory and liberal political theory; his topic is constitutional legitimacy in a liberal state. Frank wants to know under what conditions a constitutional democracy with a system of judicial review roughly resembling that in the United States can properly make claims to democratic legitimacy, given a world of strong disagreement about the most important issues in political life. After all, when judges on a constitutional court interpret the country’s basic law, they often prevent governments from doing all sorts of things that some people think are necessary to achieve justice. Conversely, judges may permit governments (and individuals) to do all sorts of things that some people think are very unjust indeed. Given very serious disagreements about what is just and unjust, and about the rights and duties that people have, Frank wants to know how constitutional law and the practice of judicial review can be legitimate within a liberal and democratic state.