Legitimacy Paradoxes of Constitutional Democracy.

Suppose, as many do, that legitimate political regimes must be both democratic and constitutional. Many have argued, however, that such a package view of legitimacy-requiring both constitutionalism and democracy—is inevitably subject to foundational paradoxes. Conceptually, a legitimate constitution could only be adopted through democratic endorsement, yet that democratic endorsement would need to be structured by pre-constitutional procedures, even while those pre-constitutional procedures would themselves require democratic endorsement; and so on into a paradoxical infinite regress. Empirically, actual constitutional democracies have suffered from related origins paradoxes: for instance, the U.S. Constitution was adopted through constitutionally illegal means (given the then in-force Articles of Confederation), and it was democratically ratified only thanks to a constitutive anti-democratic commitment to excluding slaves from the demos. Further, the current Iraqi constitution was imposed by patently un-democratic means even as it attempted to inaugurate practices of legitimate constitutional democracy. This paper argues that the troubling nature of such conceptual and empirical paradoxes results not, as many argue, from the supposed tensions between the substantive principles of democracy and constitutionalism. The trouble arises, rather, from the underlying conception of legitimacy assumed by the theories. The paper contends that an inappropriate 'threshold logic' conception of legitimacy—inherited from legal discourse and modeled most clearly in legal positivism—is the root of the paradoxical troubles canvassed. It urges the adoption of a 'regulative ideal' conception of legitimacy to assuage the paradoxical worries. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]