Authenticity:The Ultimate Challenge in the Quest for Lasting Constitutional Legitimacy†

Ming-Sung Kuo

Oxford Journal of Legal Studies, 2021, vol. 41, issue 1, 265-287

Abstract: The recent upsurge of populism has prompted a wave of theoretical reflections on constitutional democracy. Echoing Max Weber’s sociology of legitimate authority, Bruce Ackerman’s Revolutionary Constitutions: Charismatic Leadership and the Rule of Law stands out from the crowd by providing an ambitious trichotomy of constitutional legitimacy—revolutionary, establishmentarian and elitist—with a focus on the revolutionary pathway. Engaging with Ackerman’s theoretical modelling of the relationship between constitutionalism and legitimate authority, I argue that the resurgence of popular sovereignty, as embodied in We the People in populist rhetoric indicates the centrality of authenticity in constitutional democracy as constitutional authenticity is underpinned by the ethics of being true to the people’s originality. Yet, with the ethics of authenticity assuming its pathological form, the focus has been shifting from making sense of the constitution to the people’s self-identification with individual politicians. The latest wave of populism crystallises the anti-ethics of authenticity in our quest for lasting constitutional legitimacy.

Keywords: constitutional legitimacy; revolutionary constitutionalism; populism; (anti-)ethics of authenticity; authenticity question; ideal types of constitutionalism (search for similar items in EconPapers)
Date: 2021
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