Always under Law?
Michelman, Frank I., Constitutional Commentary
This essay is adapted, with some stylistic and organizational but little material change, from my Dewey Lecture entitled "Layers of Law," given at the University of Minnesota Law School on November 14, 1994.(1) In a prior work, I had argued that one cannot cleave wholeheartedly and simultaneously to both of the two ideal notions of higher law and popular sovereignty, without conceiving that the popular sovereign conducts its higher lawmaking in a normative spirit that I called jurisgenerative.(2) I began the present work with an aim of turning the previous argument around. Agreeing with the many who assign to the notion of popular sovereignty, as that notion figures in constitutional-democratic political thought, an evocative or idealizing or quasimythical status, I wanted to suggest something about this notion's function in our political thought. Although "popular sovereignty" is perhaps more often taken to express the idea that the people have the right to make the law be whatever in fact they decide, no further questions asked, I wanted to suggest that this notion's deeper signification is the expression of a wish to believe something opposite: that whoever at any time actually does lay down higher law to the country does so in a spirit of answering to some commonly and publicly perceived or commonly and publicly derivable standard of right.(3) I don't know whether the essay as it now stands delivers on the stated aim. In the final section, added after I gave the lecture, the argument takes a turn I hadn't at all anticipated when I began.
I. THE THESIS STATED
How do we think our scheme of government is justified?
This is not a simple question, at least not as I intend it, and I have to begin by explaining what I mean by it.
Start with the phrase "our scheme of government." By this I mean something quite broadly defined, roughly what John Rawls seems to mean when he speaks of constitutional democracy.(4) I shall use that term, and I shall mean by it our familiar broad model of a liberal-individualist political order based on higher law, representative government, and popular sovereignty. That's not as innocuous as you might think, though, for I mean "constitutional democracy" to signify commitment in full earnest to all three of those familiar defining terms. And it may strike you, as I thus lay them down--as very likely it has struck you before--that these three commonplace terms of the constitutional-democratic confession are not self-evidently harmonious. "Higher law" seems in some way to stand against both popular sovereignty and representative government. As for the latter pair, "popular sovereignty" speaks of government not only for the people but by them, and that is not obviously the same thing as government of them by officials or representatives. Sorting out some of the relations among these regulative notions, especially those between higher law and popular sovereignty, while trying always to keep faith with each as regulative, will be a part of my business here.
I approach this sorting out though the question I've already put: How do we think constitutional-democratic government is justified? Now, you might say right off, maybe not everyone thinks it is; so who is this "we" of whom I speak so complacently? I could give you the innocuous, the disarming response. I could say that in speaking here of "we" I just mean whoever reading this does in fact incline to the belief that constitutional democracy is probably the right (or, if you prefer, the best) broad model for a scheme of government for their society. But actually I intend something a little more contentious. I say "we" suspecting that you, reader, at least some of the time, believe in the probable rightness (or best-ness), for your society, of constitutional democracy in some recognizable form (although perhaps not exactly the form in which it's currently prescribed and practiced in your country). …