Zurn, C. (2010) the LOGIC of LEGITIMACY Bootstrapping Paradoxes of Constitutional Democrac

8/12/2019 Zurn, C. (2010) the LOGIC of LEGITIMACY Bootstrapping Paradoxes of Constitutional Democrac

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Legal Theory, 16 (2010), 191227.C Cambridge University Press 2010 0361-6843/10 $15.00 + 00

doi:10.1017/S1352325210000169

THE LOGIC OF LEGITIMACY:

Bootstrapping Paradoxes of Constitutional

Democracy

Christopher F. ZurnUniversity of Massachusetts Boston

Many have claimed that legitimate constitutional democracy is either conceptually orpractically impossible, given infinite regress paradoxes deriving from the requirementof simultaneously democratic and constitutional origins for legitimate government.This paper first critically investigates prominent conceptual and practical bootstrap-ping objections advanced by Barnett and Michelman. It then argues that the realconceptual root of such bootstrapping objections is not any specific substantiveaccount of legitimacy makers, such as consent or democratic endorsement, but aparticular conception of the logic of normative standardsthe determinate thresholdconceptionthat the critic attributes to the putatively undermined account of legiti-macy. The paper further claims that when we abandon threshold conceptions of the

logic of legitimacy in favor of regulative-ideal conceptions, then the objections, frombootstrapping paradoxes to the very idea of constitutional democracy, disappear. Itconcludes with considerations in favor of adopting a more demanding conceptionof the regulative ideal of constitutional democracy, advanced by Habermas, focusingon potentials for developmental learning.

Supposeas many including myself dothat to be legitimate, political sys-tems must be both democratic and constitutional.1Yet this supposition runsinto a potentially devastating counterargument, namely, that such a packageview of legitimacyrequiring both constitutionalism and democracyis

This paper was improved by the critical scrutiny it received from audiencesat the philosophydepartment at Groningen University, the Netherlands, at the Critical Theory Roundtable atSaint Louis University, and the Law and Society Association. My thanks also to Tom McCarthy,Frank Michelman, an anonymous reviewer for Legal Theory, and especially Vic Peterson for

valuable critical comments.1. I use legitimate and its cognates in their normative, moral senses and not in ei-

ther their legal senses or their empirical, descriptive, or sociological senses. Thus I am notconsidering here questions about the de facto support that a population has for the extant po-litical regime or constitutional system, nor about the relation between (normative) legitimacy


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192 CHRISTOPHER F. ZURN

inevitably subject to foundational paradoxes. One version of the counter-argument is conceptual: according to the package view, a legitimate con-stitution could be adopted only through democratic endorsement, yet thatdemocratic endorsement would need to be structured by preconstitutionalprocedures, even while those preconstitutional procedures would them-selves require democratic endorsement, and so on into a paradoxical in-finite regress. Another version notes that empirically, actual constitutionaldemocracies have suffered from related origins paradoxes: for instance,the U.S. Constitution was adopted through constitutionally illegal means(given the procedures then in force that were established by the Articlesof Confederation) and it was democratically ratified thanks only to a con-stitutive antidemocratic commitment to the exclusion of slaves from thedemos. Consider, as another example, the current Iraqi constitution: it wasimposed by patently undemocratic means even as it attempted to inauguratepractices of legitimate constitutional democracy.

This paper argues that the troubling nature of such conceptual and em-pirical paradoxes results not, as many argue, from supposed irreconcilabletensions between the substantive principles of democracy and of consti-tutionalism. Nor does it arise only for specific substantive conceptions ofdemocracy, of constitutionalism, and of constitutional democracy. The trou-ble is generic and arises, as I hope to show, from the underlying conceptionof the logic of legitimacy assumed by the respective accounts of consti-tutional democracy.2 The paper contends that an inappropriate thresh-old conception of legitimacys logicinherited from legal discourse andmodeled most clearly in legal positivismis the root of the paradoxicaltroubles canvased. Whatever ones preferred substantive conception of con-stitutional democracy, the paper urges the adoption of a regulative idealconception of the logic of legitimacy to assuage the paradoxical worries andargues that a developmentalist version of such a regulativist conception isthe most promising.

The first section reconstructs various considerations that are taken tosupport the proposition that constitutional democracy is inevitably subjectto debilitating legitimacy paradoxes: conceptual arguments advanced byRandy Barnett and Frank Michelman and empirical worries motivated bythe tainted origins of actual constitutional democracies. The second sec-tion outlines two different ways of conceiving of the logic of legitimacy.Section III then turns to a critical examination of the role of the two distinctconceptions of the logic of legitimacy in Barnetts and Michelmans theo-ries in order to show the attractiveness of the regulative-ideal conception.That section also enlists arguments from Jeremy Waldron to suggest thatthe paradoxical regresses identified cannot be stopped through recourse to


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The Logic of Legitimacy 193

objectively conceived substantive political ideals. Section IV then turns toJurgen Habermass proposal of a more determinate form of regulativismdevelopmentalismand suggests that while his account of the logic of le-gitimacy is in broad strokes a persuasive and powerful form of regulativism,it merits some important modifications.

I. BOOTSTRAPPING PARADOXES

A. Conceptual Problems of Infinite Regress

Consider first two recent conceptual arguments to the effect that legitimateconstitutional democracy is inherently paradoxical: Barnetts paradox ofauthority3 and Michelmans paradox of democratic procedures.4 Althougheach is advanced only on the way to the positive presentation of each au-thors preferred account of what makes constitutional democracy legitimate,I am deferring treatment of their positive accounts until Section II, focus-ing here only on the claim that the very idea of constitutional democracy issubject to paradoxical infinite regresses.

Barnett makes original use of suggestions made in an article by Lea Bril-mayer to argue that any and all contractualist accounts of political legitimacyare subject to endemic bootstrapping paradoxes.5 Barnett begins by askingwhat legitimates state coercion of subjects. The answer contract theoriespresent is that it is theconsentof individual subjects to the laws, or the state,or the constitution that does the normative work of making state coercionmorally acceptable. But note, argues Barnett, that if there is an already ex-isting regime, one must render ones explicit consent to an authority of thestate or, on some weaker accounts, one tacitly consents to remain under thejurisdiction of the states laws and its authorities. Yet on either the explicit-or the tacit-consent accounts, the existing state, its laws, and its minions are

3. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY

(2004).4. FRANKI. MICHELMAN, BRENNAN ANDDEMOCRACY(1999); Michelman,Constitutional Author-

ship,inCONSTITUTIONALISM: PHILOSOPHICALFOUNDATIONS(6498) (Larry Alexander ed., 1998);Michelman,How Can the People Ever Make the Laws? A Critique of Deliberative Democracy,inDELIB-ERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS (145171) (James Bohman & William Rehgeds., 1997); Michelman,Jurgen Habermass Between Facts and Norms, 93 J. PHIL. (307315) (1996)(book review). I think Michelmans clearest formulation of the paradox is to be found inConstitutional Authorship, though only in BRENNAN ANDDEMOCRACYdoes he suggest determinate

ways to come to terms with the paradox in practice.5. SeeBARNETT, supranote 3, at 1131, referring to Lea Brilmayer, Consent, Contract, and

Territory, 74 MINN. L. REV. (135) (1989). Specifically, his argument is directed against contrac-tualist political theories in a broad sense but is not directed to contractarian or contractualist

moral theories. I ignore here Barnetts (unacknowledged) replay of Humes arguments againstconsent, to the effect that various empirical circumstances that individual subjects find them-selves within under already constituted states render their putatively free consent questionable


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already in existence andare assumed to have the legitimate authority todemand ones consent. But it is the act of individual consent that is sup-posed to be doing the normative work of legitimating the state, its laws, andminions in the first place. Hence we seem to be caught in an infinite regressof legitimization between individual consent and legal authority.

We can extend Barnetts paradox of authorization from his applicationof it to what I call the problem of existing legitimation to the problemof originating legitimation if it, too, is conceived in contractualist terms.For if individual consent, in a democratic act of collectively establishing anoriginal social contract, legitimates the adoption of a specific constitution,then that consent must be rendered to a group of persons (perhaps to theentiredemos) that is already authorized to demand either consent to or em-igration away from the future political community. But no group of personscould be authorized to make such demands in the absence of a legitimateauthority-conferring legal instrument, that is to say, a legitimate constitu-tion. However, there can be no legitimate constitution in the absence ofconsent, and no authorized consent in the absence of a legitimate constitu-tion, and so on, into a paradox of infinite regress. If we stylize unanimousindividual consent in an originating convention as democracy and stylizerule according to preestablished, legitimate law as constitutionalism, thentheir combination in constitutional democracy appears to lead inherently toskepticism. Barnetts paradox of authority thus threatens the very possibilityof conceiving of a contractualist foundation for a constitutional democracy.

If ones normative tendencies are more attuned to popular sovereigntyand less sympathetic to the individualist orientations of contractualism, onemight think that such bootstrapping paradoxes could be avoided by turningaway from the focus on individual, aggregated acts of consent and focusingrather on a democratically founded constitution. Considering an originat-ing constitutional convention, one might then emphasize collective, demo-cratic self-legislation as the properly legitimate foundation of constitutionaldemocracies. Here, however, one would be faced by Michelmans versionof the bootstrapping objection, his paradox of democratic procedures. Fornot just any self-proclaimed act of democratic self-legislation can con-fer legitimacy on a constitutional democracy. The processes engaged induring that original self-legislating activitythe constitutional conventionprocesses, let us saymust themselves be subject to procedural conditionsof at least minimal fairness and openness. There would have to be, forinstance, antecedent rules for membership in order to foreclose possibili-ties of unjustified exclusions of some of the population and agenda-settingand voting rules to allocate political power equally to all. In a nutshell,democratic self-legislation could not be legitimacy-conferring without an-tecedently established, legitimate procedures.


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The consistent democratic theorist will then answer: We would need demo-cratic endorsement of the rules proposed for the convention. But for thatdemocratic endorsement of the convention rules to be legitimate, it wouldhave to be procedurally structured itself, and those antecedent procedurescould be legitimated only through an antecedent democratic endorsement,and so on into an infinite regress. If we stylize the collective endorsement asdemocracy and the requisite procedures as constitutionalism, then democ-racy and constitutionalism reciprocally presuppose one another for theirlegitimacy-conferring power, and the combination expressed in constitu-tional democracy comes to seem inherently paradoxical.

B. Practical Problems of Tainted OriginsThe bootstrapping paradoxes pointed out by Barnett and Michelman arenot just abstract puzzles fit only for the theory of constitutional democracybut are reflected as well in the puzzles thrown up in the actual practice ofconstitutional democracy. Let me briefly canvas three such puzzles of taintedorigins concerning foundational compromises, procedural illegality, andnondemocratic origins, using examples familiar from U.S. experience. As iswidely acknowledged, the original constitutional settlement ensuing fromthe U.S. Constitutional Convention in the summer of 1787 and ratified the

next summer could not have been possible without endorsing and facilitat-ing the continuance of the Slave Power.6 Although the Constitution of theUnited States (hereafter the USC) nowhere uses the word slavery or itscognates, the Constitution and the political procedures it established werethoroughly shot through with this foundational compromise.7 Perhaps mostinterestingly from the point of view of constitutionalism, the USC includesonly three hard entrenchmentsthat is, provisions that are theoreticallyor practically incapable of change through amendmentand all three arecentrally concerned with the maintenance of the Slave Power.8 It is, then,

6. For a powerful institutional analysis,seeMARKA. GRABER, DREDSCOTT AND THEPROBLEMOFCONSTITUTIONAL EVILch. 5 (2006).

7. While slaves were legally cognized as chattel and were legally barred from enjoying anyof the privileges and immunities of citizenship, they were notoriously counted (at a 40 percentdiscount) toward the population of their respective states, thereby giving a very importantnumerical boost to the Slave Power states with respect to their proportional representationboth in the House of Representatives (U.S. CONST. art. I, 2, cl. 3) and in the selection ofthe President through the Electoral College (U.S. CONST. art. II, 1, cls. 23; and amends.XII and XXIII). For more on the expected and actual historical interaction between federalrepresentation and the counting of slaves,seeGRABER,supranote 6, pt. 2. The USC itself also

gave a twenty-year safe harbor to the international slave trade by barring in art. I, 9, cl. 1any federal laws that might outlaw the importation of slaves and it included a fugitive-slaveprovision in art. IV, 2, cl. 3, requiring nonslave states to return any escaped slaves to their


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no understatement to say that the prima facie legitimacy of the originalUSC was foundationally compromised by the immoral bargain thought tobe required to bring it into existence.

We can see how such actual foundational exclusions are related to theconceptual bootstrapping paradoxes canvased above by asking whether theoriginal U.S. constitutional settlement was legitimate according to the con-sent and self-legislation standards. If one takes consent as the legitimatingfactor, it is clear that neither explicit nor tacit consent was available to slaves,given their legal status as both nonpersons, who were granted no legal ca-pacities for autonomous expressions of will, and as chattel property, with nolegal rights to emigration away from a regime that they (in all probability)would not have freely consented to.9 Hence, from the contractualist pointof view, the original USC was illegitimate. But that means that it could notlegitimately grant authority to any future officials who might demand legit-imating consent from individuals under an already extant constitution. Inaddition, a constitutional democracy instituted under the conditions of anexclusionary foundational compromise could never gain legitimacy later onthrough the free consent of all, since it would have no legitimate authorityin the first place.

We can run the problem through the lens of democracy as well, result-ing in a similar predicament to that outlined in the paradox of democraticprocedures. Noting that the original ratifying conditions for the USC in1788 were obviously illegitimategiven the persistence of slavery and otherforms of exclusionary oppression, proper members of the demos were con-stitutively excluded from the opportunity for democratic participationanyfurther democratic decisions made under the procedures established by theUSC would not be legitimate. Even amendments that sought to correct forthe foundational compromises and exclusions would themselves be illegiti-mate, for they could be adopted only through the USCs own already taintedprocedures.

Perhaps one is willing to dismiss, excuse, or overlook the foundationalexclusions of the USC as the products of the prejudices of a benightedbut thankfully bygone era. Yet even apart from such moral compromisesclearly visible as such in retrospect, the founders themselves knew that theyengaged in a procedurally illegal constitutional founding. For there was in1787 and 1788 a legally binding constitution already in effectthe Articlesof Confederationwhich contained specific procedures for its modifica-tion. Yet those procedures were simply ignored by the conventioneers, and

the twenty-year guarantees of both the slave trade (U.S. CONST. art. I, 9, cl. 1) and counting

slaves as three-fifths of a person when calculating a capitation tax (U.S. C ONST. art. I,9, cl. 4).9. Other groups of persons who were also constitutively left out of the U.S. constitutional

settlement present more complex examples of delegitimating exclusion: adult females, free


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the newly proposed USC substituted its own self-ratification procedures.10

Eighty years later, the most dramatic and far-reaching changes in the USCthe Thirteenth and Fourteenth Amendmentswere achieved through po-

litical processes that were themselves arguably formally illegal.

11

Because these procedural irregularities during the founding and Recon-struction eras occurred while settling the fundamental laws of politicalprocedurewhile settling the constitutional structure of democracy itselfthe bootstrapping paradoxes become particularly poignant in their reflex-ivity. The constitutional structure of all future democratic decision-makingfor the nation has been decided on under distinctly unconstitutional andundemocratic conditions. But if the legal framework that is to confer legit-imacy on future political actions is itself illegitimate due to its procedurally

illegal and antidemocratic origins, then it is hard to understand how anyfuture political actions within that framework could be legitimate.Practical bootstrapping problems, finally, also arise in those situations in

which a constitutional democracy is externally imposed on a population.Even if the procedures, institutions, and laws instituted by that new regimeare sterlingeven if they contain all of the right stuff that a political sys-tem should have while containing nothing dubious, as determined by thebest theory and experiencethere is a real question of whether such animposed system can be legitimate. Consider, as examples, the Allies vir-

tual imposition of the German Basic Law and the Japanese Constitutionafter the end of World War II.12 Arguably both constitutions have both therequisite conceptual content to count as legitimate constitutional democra-cies and the historical record of having sustained constitutionally successfuland democratically decent political practices and institutions for some sixtyyears. Might even such successful constitutional democracies be illegitimatein light of their nondemocratic origins?

10. For discussions of the ways in which art. XIII of the Articles of Confederation were

ignored in designing the USCs ratification procedures, seeDavid Kay,The Illegality of the Con-stitution, 4 CONST. COMMENT. (5780) (1987); and Bruce Ackerman & Neal Kumar Katyal, OurUnconventional Founding, 62 U. CHI. L. REV. (475573) (1995). THE FEDERALISTNOS. 40, 43(James Madison) explicitly recognize that the ratification procedures depart from those speci-fied in the Articles, but Madison dismisses the significance of this objection on the grounds thatthe Articles unanimous-state-consent provision would give too much veto power to a singleintransigent state and that the antifederalist opponents of the USC had not really pressed theobjection. Note that neither of Madisons arguments is responsive to the problem of proceduralillegality.

11. See the documentation of the claim that amends. XIII and XIV were strictly illegalconstitutional amendments in BRUCEACKERMAN, WE THEPEOPLE: TRANSFORMATIONS(1998), at99252. The claim is contested in AKHIL REED AMAR, AMERICAS CONSTITUTION: A BIOGRAPHY

(2005), at 364380.12. The stories are importantly different. The German Basic Law was written largely by dele-

gates appointed by the heads of the German states in 1948, approved by the state parliaments,


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Alternatively, consider a much less clear example: the current Iraqi consti-tutional system, effectively the result of a series of transitions from externalmilitary rule to what looks like constitutional self-government, undertakenin the wake of the U.S. military conquest of the country in 2003. While onesurely cannot yet say that it will be a successful constitutional democracy inpractice at this point, the formal political procedures, institutions, and lawsestablished by that constitution appear at least well within the mainstream,acceptable range of decent constitutional democracies. The Iraqi consti-tution even has the democratic advantage over the German and Japaneseones of having been formally ratified through a direct democratic vote ofthe people in October 2005. Yet here again, we come up against bootstrap-ping problems in action. For the democratic ratification of the constitutionoccurred according to rules established before the constitution becamebinding. But what of the pedigree of those preconstitutional ratificationrules? They certainly were not subject to democratic ratification but ratherwere imposed by the occupying force in the guise of the Coalition Pro-visional Authority.13 It is unclear how legitimate constitutional democracycould arise from such apparently illegitimate origins.

II. THE LOGIC OF LEGITIMACY

Whether we focus on the conceptual bootstrapping paradoxes highlightedby Barnett and Michelman, which stretch out in an infinite regress intothe past, or the empirical bootstrapping problems of tainted origins, whichseem to saddle the future with permanently illegitimate regimes, it appearsthat the combination we require of political systems for their legitimacyconstitutionalism and democracyis inherently unstable and suspect. Inthe remainder of this paper, I aim to argue against these skeptical appear-ances and in favor of two main theses.

First, I intend to show that the bootstrapping arguments against the very

possibility of constitutional democracy have force only on the supposition ofa specific conception of the logic of legitimacy, labeled here the thresholdconception. This means that the bootstrapping objections do not rely onany specific conceptions of political legitimacysuch as contractualism,popular sovereignty, or other specific political conceptionsand so cannotbe assuaged by moving to a different conception of the specific sourcesof legitimacy. Second, given the paradoxes caused by the adoption of a

13. The story is considerably more complex than thisinvolving the United States direct

rule through the Coalition Provisional Authority from April 2003 to June 2004, then the ruleof the Iraqi Interim Government under the aegis of the Transitional Administrative Law from

June 2004 until the election of the Iraqi Transitional Government in January 2005, and finally


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threshold conception of the logic of legitimacy, I propose that we oughtto adopt a regulative ideal conception of such logic, which should beable to avoid the skepticism engendered by the paradoxes. I argue for aspecific version of regulativism I label developmentalism, which arises outof a few modifications to Habermass conception of the logic of legitimacy.However, the more important move is, as I hope to show, the adoption of aregulative-ideal conception in some form or other.

Before turning to the different logics, I need to specify what exactlythe proper object of legitimacy judgments is. What kinds of claims or assess-ments have the skeptical bootstrapping considerations rendered potentiallyparadoxical? Consider examples of one distinctive kind of claim often putforth in the political arena explicitly relying on the language of legitimacy:Iraq has an illegitimate government since it was imposed by force; the U.S.Constitution is illegitimate since it was founded in and protected slavery;the European Union is illegitimate because its real policy-makers are demo-cratically unaccountable; Zimbabwes government is illegitimate since itdoes not function according to the rules of electoral democracy specifiedin its constitution; Pakistans government is illegitimate insofar as it sub-verts the rule of law by hiring and firing judges according to the politicalsaliency of their legal rulings; and so on. These kinds of challenges tothe worth or bona fides of a government system are distinctly normativeclaimsthey frame a moral-political judgmentrather than empirical orsociological claimsthey are not about gauging the sentiments of citizens,nor about the degree of stability of a regime, nor about claims that couldbe adjudicated through public opinion polls.

Legitimacy challenges of this type are not, however, typically directed atspecific laws, policies, or governmental actions.14 While we often norma-tively assess such individual activities as unwise, imprudent, immoral, andso on, it is unlikely that such disapproval is coupled to the thought thatthe entire system of governmentthe manner of choosing particular gov-erning persons and parties, the system of policy choice and administration,the legal system the state employs, and the formal constitution and theconstitutional understandings and practices that support itis illegitimatebecause of the disapproval of individual governmental policies or activi-ties. Of course, on some very serious moral matters, some persons do saythat one distinctly immoral governmental policy is sufficient to delegitimizethe entire system of government, but then we have moved precisely to theterrain of discussion I am focusing on here.

14. There are surely other common usages of the language of legitimacy that are directedat more individual governmental actions; e.g., at the processes and outcomes of trials, the


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One complication here is that people dooften speak of particular rul-ing regimesthose persons and parties with current control of the leversof poweras illegitimate: that they, for instance, came to political poweror continue to wield it through undemocratic or unconstitutional means.However, such usages of illegitimate as directed at specific ruling regimesare double-sided; they are usually negative assessments of those currentlyruling even as they tacitly suppose the positive legitimacy of the underly-ing political system that the current regime is taken to have subverted orundermined. In this paper, I focus on the latter, more capacious notionof political structure as the proper object of a legitimacy assessment: thebroad and fundamental political system of rule, policy, and law that per-dures through changing individual rulers, regimes, policies, and laws.

To begin to get a grasp of the two different logics, it helps first to considerthe typical picture of legal validity presented in formalist and positivist ac-counts of law. According to such a conception, for any particular putativelegal provision, one can determine if it is a legally valid provision of a givenlegal system by investigating whether it meets with the necessary and suffi-cient criteria for legality that are employed within that system. Of course,different philosophies of law will present different accounts of where to lookfor such legality criteriaformalists will look to deductive inferences fromestablished doctrinal principles, nineteenth-century legal positivists such asJeremy Bentham and John Austin will look to the coercive orders of anuncommanded sovereign, twentieth-century positivists will look to founda-tional, quasi-legal norms such as Hans Kelsens Grundnormor H.L.A. Hartsrule of recognitionbut all agree that a given legal system must have defi-nite standards for the identification of which putative norms are part of thatsystem and which are not. Legal validity is, in short, a determinate matter ofcriterial fulfillment of the necessary and sufficient conditions specifiedanorm meeting the relevant baseline or threshold is legally valid.

Hence legal validity is not only, first, a determinate (and ideally fullydeterminable) matter of meeting the threshold but it is, second, an all-or-nothing affair. A provision either meets the sufficiency threshold or it doesnot; legal validity is logically binary. Third, legal validity requires gaining thedefinitive authority-indicating properties specified by the legal system. AsDworkin puts it, this is a matter of having the right pedigree: having beenproduced or modified in the correct way according to the legally specifiedprocedures.15 Hence legal validity accrues to a provision at a distinct point intime where it switches from being a proposed legal norm to being an actuallegal norm in that system because of having been processed in the rightway. It should, then, be a straightforward inquiry to determine the validityof any putative legal provision: look back into its history and determinewhether that provision, as a matter of fact, gained the authority-conferring


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in principle, validity is a fully achievable state in the same way that a goalcan be scored in field hockey.

Compare this threshold logic with the different way in which regulativeideals operate on these four registers.16 Take first, for an example, a broadlyKantian notion of individual moral autonomy as the capacity to determineones will and act in accordance with the dictates of practical reason. Beingmoral in this sense is not a matter of criterial fulfillment of some specifiablenecessary and sufficient conditions but is rather a matter of degree to beassessed by nondispositive judgments; assessing moral autonomy involvescomplex judgments about the specific dictates of practical reason in differ-ent situations and about the degree to which ones will and actions havebeen closer to or farther away from those dictates.

Second, as achieving an ideal is not a matter of meeting some thresholdrequirement but of approximating it to a greater or lesser degree, thelogic of a regulative ideal is scalar: greater or lesser approximation, notbinary fulfillment or nonfulfillment. Regulative ideals like moral autonomyare then achievement concepts, where the approximation to the ideal hasto arise out of various substantive competences possessed by the achieverand due to the achievers determinate character, nature, or constitution.Whereas threshold goals may accrue to a possessor by accident, as it wereconsider legally valid but unintended provisions due to scriveners errorfor regulative ideals there can be no lucky guesses or fortunate accidentsresponsible for their achievement.

Third, regulative ideals are processual; they are approximated over time.We are willing to say that an individual is autonomous only when she hasexhibited an ever closer approximation to the ideal over time and undervaried conditions. In contrast to the logic of threshold goals, the attributionof the achievement of a regulative ideal cannot be made for single acts, noris it achieved all at once or at one single point in time. Finally, a regulativeideal such as moral autonomy is an ideal, not a goal; in principle it cannever fully be realized. It functions as an asymptote that is approachablebut never perfectly achievable rather than as a determinate goal state thatcan be fulfilled.17

16. Although Kant is the obvious inspiration for my conception of the logic of regulativeideals, and I believe that this account is consistent with Kants usage of the notion, I do nothere make any claims to present accurately Kants view of regulative ideals. The same is true formy example of a broadly Kantian notion of moral autonomy: I do not aim to reproduce his

views exactly. One particular difference deserves note, however: for Kant, regulative principlesor ideals are to be strictly distinguished from constitutive ones, in that the former are standardsguiding reason, whereas the latter are standards imminent in objects;see, e.g., IMMANUELKANT,CRITIQUE OFPURE REASON(Norman Kemp Smith trans., St. Martins Press 1965) (1781), at

449451, 514518. I make no use of this contrast in my account of the logic of regulativeideals, even though the contrast is fundamental to Kants use of the term regulative. For aninsightful discussion of how regulative ideals function see Thomas McCarthy The Philosophy of


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In the remainder of this paper I hope to show how the bootstrappingparadoxes rely on supposing that legitimacy follows a threshold logic andhow such skeptical paradoxes concerning constitutional democracy can beavoided by adopting a conception of legitimacy that accords with the logic ofregulative ideals. Section III turns to unsatisfying solutions to the bootstrap-ping paradoxes. It treats Barnetts and Michelmans complementary turnsto substantialist criteria of legitimacy in order to try to stop the infinite re-gresses they identify and argues that each escapes the skeptical implicationsof the regresses only by adopting its own versions of regulativism. Section IVexplicates Habermass developmentalist version of regulativism as a morepromising route and suggests some modifications to his particular formula-tions of that version. The concluding Section V then takes up a number ofissues raised by my reformulated version of developmentalism.

III. SUBSTANTIALISM

One might think that the real source of the bootstrapping paradoxes isthe adoption of proceduralist conceptions of democracy and constitution-alism, such that they could be solved by moving to substantialist accountsof political legitimacy. To understand the difference between procedural-ist and substantialist conceptions of legitimacy, consider that when we

ask of any particular outcome of a political process whether it is legiti-mate, there are at least two distinct ways of answering. On the one hand,we might point to the fact that the correct procedures had been followedin producing the decision, resting the legitimacy on the character of theprocedures themselves. On the other hand, we might point to the factthat the substance of the outcome accords with some determinate idealor standard, such as justice or goodness or efficiency, where that ideal orstandard is logically independent of the procedures used to arrive at thedecision.18

Taking ones bearings from a similar infinite regress of justified beliefsoften detected in epistemology, one might approach the bootstrapping re-gresses in a structurally analogous way. Recall the epistemological regress:if belief C is justified in the light of belief B, then B must be justified in thelight of some other belief A, which must be justified . . . ad infinitum.Theepistemological skeptic concludes that the regress of inferential dependen-cies is infinite, such that no belief could ever be justified, much in the sameway that the political skeptic concludes that the joint requirement of con-stitutionalism and democracy leads to an uncompletable regress that calls

into question the very idea of the modern conception of political legitimacy.The epistemological foundationalist responds to the skeptic by attempting

fi d b b i i l i l f j ifi d b li f h


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is nevertheless not inferentially justified and can function to put a stop tothe regress of inferences. The foundationalist move is analogous to a moveto a substantialist account of legitimacy in practical philosophy, where thetheory posits some single or set of determinate ideals that can be used as aprocess-independent test for legitimacy.

Turning to the theoretical bootstrapping problems, it looks at first glanceas though the root of the difficulty is the strict proceduralist accounts ofconstitutionalism and of democracy, such that the regress ensues from aninfinite spiral of two types of procedures (constitutional and democratic)reciprocally requiring one another for the outcome of the process to belegitimate. Individual consent and legal authorization (a la Barnett) aswell as democratic endorsement and established procedures for democ-racy (a la Michelman) are all procedural tests for legitimacy. And we mightbe tempted to step out of the regresses by referring to a nonprocedurallegitimacy-maker, in the same way that the foundationalist attempts to stepout of the regress of inferential justification by referring to a noninfer-ential justification-maker. Familiar candidates for such legitimacy-makersinclude a determinate catalog of natural rights and substantive conceptionsof distributive or commutative justice. They might function to put a stopto the procedural questions of how to establish the legitimacy of particulardecisions by using a procedure-independent check on the worthiness ofthe substantive content of the decision. Thus we could know that a pro-cedurally correct decision would nevertheless be illegitimate if it were toviolate, say, some determinate natural right or substantive component ofjustice.

In fact, Barnett and Michelman both employ just this strategy of movingto (different) substantialist standards of legitimacy, apparently with the aimof escaping the bootstrapping paradoxes they have diagnosed with otheraccounts of the legitimacy of constitutional democracy. In the remainderof this section I aim to show how the move to substantialism does not infact resolve the paradoxes, first by showing how Barnetts and Michelmanspreferred substantialist accounts of legitimacy are themselves subject tobootstrapping problems and then by advancing a broader argument tosuggest that substantialist strategies in general will not work. This suggeststhat the heart of the problem with bootstrapping does not lie in the adoptionof proceduralist accounts of constitutional democracy.

A. Barnetts Petard

Let me begin first with Barnetts libertarian conception of political legiti-macy, grounded in natural rights. It is a straightforward substantialist test forlegitimacy, modeled on Lockes notion of prepolitical fundamental rights


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legitimated by the substance of the rights they uphold.19 As Barnett puts it,adopting the necessary and proper language from Article I of the USCconcerning the powers of the national legislature:

For consent to matter in the first place, we must assume (and there is goodreason to conclude) that first come rights, and then comes law or first comerights, then comes government. And this proposition, once accepted, helpsexplain how lawmaking can be legitimate in the absence of consent. For a lawisjust,and therefore binding in conscience, if its restrictions are (1)necessaryto protect the rights of others and (2)properinsofar as they do not violate thepreexisting rights of the persons on whom they are imposed.20

Thus, on this theory, individual consentwhich was the starting point for

Barnetts paradox of authorityis wholly unnecessary for the enactment ofjust laws. In fact, the natural-rights test is entirely substantialist since itdispenses with any concern about the procedures of lawmaking in the firstplace. All that matters at this level is that the black boxes of law creationand application actually produce substantively just outcomes.

If we next ask whether a particular political system is legitimate, Bar-nett answers that it is when we can reasonably suppose that it will tend toproduce and enforce just laws. Of course no political process, no set of con-stitutional procedures, can ensure that only just laws will always ensue, but

a constitutional system is legitimate when its structure and operation suffi-ciently warrant the expectation of fundamental rights protection.21 Notably,as Barnett himself indicates, this means that legitimacy follows the approx-imative logic of regulative ideals rather than the binary logic of thresholdconceptions and thus that judgments concerning the legitimacy of a givenconstitutional system are not always straightforwardly determinate:

This makes legitimacy a matter of degree rather than an all-or-nothing-at-allcharacteristic. . . . The theory I am proposing does not always provide a clean

19. Barnett, taking his cue from Locke as filtered through Robert Nozick, refers to naturalrights as inalienable and repeatedly catalogs them as the rights of several property, freedom ofcontract, self-defense, first possession, and restitution; BARNETT,supranote 3, at 73. Barnettsargument for natural rights appears to be functional: if we want to live happy, prosperous livesin functioning and perduring societies, then the catalog of rights must be respectedsee id. at7886. Barnetts particular functionalist justification of natural-rights substantialism is not ofinterest here, though one cannot help wondering both how rights justified merely hypotheti-cally are supposed to gain the categorical force usually accorded to natural, inalienable rightsand how all kinds of societies apparently keep functioning perfectly well even with massive

violations of these same rights.

20. Id. at 44.21. Barnett thus conceives of the justice of a constitutional system to be an instance of

imperfect procedural justice, to use Rawlss nomenclature, where there is a procedure-independent


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answer to the question of whether a particular lawmaking process, taken asa whole, is sufficient to provide enacted legislation with the benefit of thedoubt.22

But it is precisely this move to the logic of regulative ideals that makesit possible to escape the bootstrapping paradox, since legitimacy is hereconceived of as properly attributable only to a legal system as a whole, isachieved over time, and that achievement is a matter of approximating anin-principle unrealizable ideal such that no minor infraction or singularimperfection of the legal system necessarily delegitimizes that system.

To make it clear that it is the regulativism of Barnetts legitimacyconceptionand not its substantialist test for rightnessthat saves it fromdebilitating paradox, consider first how his natural-rights conception wouldfare on a threshold logic. If the legitimacy of an entire constitutional sys-tem of lawmaking and law application is a determinate, all-or-nothing affair,then the test according to Barnetts standards would have to be that thesystem always guarantees the protection of individuals natural, inalienablerightsby only and always passing necessary and proper laws and by onlyand always applying them justly. Yet it seems that any feasible system ofgovernment would fail such a test of legitimacy. For any just system of in-dividual liberty protection requires criminal trials that convict all and onlyguilty persons. But we have no feasible way of guaranteeing this outcome.23

Thus any political system dedicated to achieving Barnetts conception ofjustice will fail if conceived in terms of a threshold logic.24 And it likely willfail not just once but potentially in perpetuity as new criminal trials are con-ducted. The political system is thus rendered permanently illegitimate andso is owed no allegiance in conscience on Barnetts account.25 We could, ofcourse, lower the threshold of just trials required to some determinate num-ber or percentage, say to a level allowing no more than three or no more

22. BARNETT,supranote 3, at 51.

23. The choice of criminal trials is not accidental; it is Rawlss example of imperfect pro-cedural justice, where we have a substantive test for just outcomes but no feasible proceduresfor guaranteeing such outcomes. Using Barnetts natural-rights theory in concert with thethreshold conception of legitimacy yields, in Rawlss terms, a unrealizable demand for perfectprocedural justice.

24. One might object that perhaps Barnett could suitably weaken his legitimacy test so thatonly very extreme rights deprivations would count as delegitimating. Aside from the fact thatthis threatens to render almost all political systems legitimate despite the intentions of hisrather stringent brand of libertarianism, it seems incompatible with the catalog of rights thatBarnett considers natural and inalienable and with the fulsome content he often interpretsthem as having.

25. Consider, in addition, Barnetts endorsement of the USC as a basically legitimate law-

making system. He bases this judgment largely on the existence of the Ninth Amendment(concerning constitutionally unenumerated rights retained by the people), which he inter-prets as guaranteeing the protection of natural rights. But the Ninth Amendment was ratified


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than 5 percent of unjust convictions per year. But the problem simply raisesits head again: a fully legitimate constitutional democracy is suddenly ren-dered entirely illegitimateon a threshold conceptionat the moment thenext yearly unjust conviction exceeds the lowered threshold. One simple ex-onerating DNA test of a convicted felon, and all of a sudden no citizen owesany obligation of obedience to a system that was fully obligating yesterday.

If Barnetts substantive standard is saved from paradox by regulativism, itturns out that the proceduralist consent standard can be saved in a similarway. Consider first the potential new member asked to give her consent toan existing political system. Surely the constitution is not fully legitimatewhen its representative asks for the consent of a new member, but there isan important sense in which the consent of those who are already membersof the consociation does give the set of rules a great degree of prima facielegitimacy. And if the newcomer gives her consent, the constitution becomesthat much more legitimate.

Consider second the situation of original contractors considering con-senting to a new political system. It is true that each of the original contrac-tors must treat their co-contractors as merely provisionally authorized todemand the consent of each in the absence of an authority-conferring legalinstrument. But if the standards are democracy (in the sense of the freelygiven consent of each) and constitutionalism (in the sense of authority ex-ercised only according to established legal rules), then these standards areever more approximated as the contractors move through the various stagesof constituting a political system through consent: establishing a horizontalpolitical community of free and equal consociates by unanimous consent,then establishing decision rules for the horizontal political community, thenestablishing vertical relations of political authority according to those newhorizontal decision rules, then laying out constitutional structures for thatpolitical authority, and so on.26 At each stage, the original contractors arereciprocally ensuring the requisite level of consent and creating legal struc-tures that shape the authority that is to establish the consent at the nextstage.

Hence the legitimacy of constitutional democracy is indeed tied up witha particular reflexivity between constitutionalism and democracy as high-lighted in the paradox of authority (and in Michelmans paradox of demo-cratic procedures). But this reflexivity, at least in principle, can be virtuouswhen it asymptotically approaches a regulative ideal, as opposed to viciouswhen it regresses into an infinity of unmet, determinate threshold criteria.27

26. The stages indicated here are used merely as examples; different variations have beenproposed in different social contract theories.


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B. Michelmans Petard

Regulativist accounts of legitimacyat least in terms of consent or natu-ral rightsare not, then, subject to wholesale indictment on account of

imperfect achievements of threshold sufficiency criteria. Thus it is not thedifference between proceduralism and substantialism, at least in Barnettscase, that makes the difference with respect to the skeptical implications ofthe bootstrapping paradoxes. I would now like to show how similar resultsarise for Michelmans response to the paradox he detects.

Recall that Michelmans paradox of democratic procedures arises froman infinite regress of needing democratic endorsement of a constitutionalsettlement, legal rules for that democratic endorsement, democratic en-dorsement of those legal rules, and so on. Michelman also makes orig-

inal use of Rawlss notion of the fact of reasonable pluralism to com-plicate this paradox further,28 since one would then have to expect rea-sonable but irreconcilable dissensus concerning both the legitimizingdemocratic endorsement and the legitimacy conferring political decisionrules.29

Michelmans response, as I understand it, is basically to split the legit-imacy question into two, offering a substantialist account of legitimacy atthe level of originating legitimation and a proceduralist account at thelevel of existing legitimation.30 Let me begin with the problem of originat-

ing legitimation achieved through an agreement between free and equalconsociates. Because of the threat of infinite regress posed by the paradox ofdemocratic procedures and because Michelman seeks to endorse the idealsof constitutional democracy rather than their skeptical rejection, he em-braces substantialism in order to stop the regress. Taking a page from civicrepublicanism, he claims that there must be some sufficiently thick, precon-stitutional ethical consensus among the consociates in order for legitimateconstitutional democracy to be able to get off the ground:

It is now looking very much as though there cannot possibly be, in any coun-try, both constitutional government and self-government for everyone, exceptin the special circumstance of wholehearted acceptance by virtually all thecountrys people of a critical mass of substantive first principles of right gov-ernment. These principles . . . are what we may call cultural commitments ofconstitutional democracy, ideas that in the last analysis everyone is just goingto have to grow to accept, perhaps over generations, if freedom through lawis going to be possible for everyone.31

28. JOHNRAWLS, POLITICALLIBERALISM(1996), at xxiiixxx, 3638, 5458.29. SeeMichelman,Constitutional Authorship,supranote 4.


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Hence on this register he proposes that only a kind of substantialist con-sensus of some kind can stop the regress of democratic procedures.32 Weshould note, however, that already, with this answer, Michelmans strategyturns to elements of regulativism. For the quote suggests that constitutionaldemocracies are actually not originally founded with such an ethical consen-sus in place; socialization produces such only over time and perhaps onlyover generations.33 Of course, as Michelman recognizes, this could workonly if we assume that legitimacy has the approximative and processuallogic of regulative ideals rather than the threshold logic of legality.34

If Michelman employs substantialism of this sort at the level of originatinglegitimation, why not also at the level of existing legitimation, that is, forquestions of the ongoing legitimacy of a presumptively decent constitutionaldemocracy? Here he brings to bear his distinctive jurisprudential viewpoint,one oriented to, as it were, the business end of constitutional law, that is,the law-applying rather than the lawmaking end. When we think about thecontroversial character of constitutional interpretations, it becomes evidentthat even if we are fortunate enough to have a solid, substantive consen-sus on rather abstract fundamental constitutional principles, the fact ofreasonable pluralism also impacts the concrete application of those princi-ples. For instance, the fact that we might agree on a basic commitment torights of freedom of speech in no way eliminates reasonable but foreseeablyirreconcilable disagreement over whether such rights allow or bar restric-tions on, say, hate speech or political advertising expenditures. Calling suchdisagreement concerning the application of constitutional provisions thefact of reasonable interpretive pluralism, Michelman notes that hopes fora developing substantialist consensus are unlikely to be realized here, inthe light of the apparently endless good-faith disagreements about whatconstitutions really mean in practice.

At this point, Michelman goes proceduralist, suggesting that as long asthe basic political arrangements responsible for the interpretation and ap-plication of constitutional generalities can be seen to be open to the fullblast of sundry opinions and interest-articulations in society, including on a

32. A later paper loosens the thickness of the required consensus, demanding not that all cit-izens agree on the same fundamental principles but only that there is an overlapping consensusof individual citizens positive assessments of the legitimacy of the given system of governmentand law.SeeFrank I. Michelman, Idas Way: Constructing the Respect-Worthy Governmental System,72 FORDHAML. REV. (345365) (2003).

33. Thisstrategy is structurally thesame as Rawlss argument that an overlapping consensuson political fundamentals among irreconcilable comprehensive doctrines is possible and could

develop over time out of mere political compromise through the workings of public reason inthe context of free institutions: RAWLS, POLITICALLIBERALISM,supranote 28, at 158168.

34. In another context, Michelman explicitly endorses regulativism with respect to the pos-


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fair basis everyones opinions and articulations of interests,35 then citizenscould understand themselves as simultaneously self-governing and livingunder law, even if they did not agree with every particular governmental

decision concerning the specific application of constitutional principles. Inother words, in the light of substantive interpretive disagreement, Michel-man proposes a proceduralist test for the legitimacy of the outputs of thosepolitical institutions responsible for applying constitutional law. Thus, as Iunderstand this two-level proposal, only a thick ethical consensus can solvethe problem of originating legitimation for a constitutional democracy,while the residual interpretive pluralism that threatens existing legitima-tion is to be managed through democratically open political processes oflegal application.

I indicate above that the substantialist part of Michelmans solution de-pends on assuming a regulative logic. If we were instead to apply a thresh-old logic there, then the only apparent hope for legitimate constitutionaldemocracy would be the fortunate existence of an immediate and wide-ranging ethical consensus, and that hope unrealistically takes neither theburdens of judgment nor the fact of modern pluralism very seriously. Butthere is yet a deeper problem with this two-level solution, one that Michel-mans own work points to and which threatens both the substantialist andthe proceduralist prongs of his account of legitimacy. The problem is found

in the relation of abstract constitutional provisions and principles to con-crete applications of those provisions and principles through the incidenceof law. For Michelman argues that reasonable interpretive pluralism, whichled him to a procedural standard of legitimacy for the law-applying insti-tutions, reacts back up the ladder of abstraction, as it were, threateningeven our supposed consensus at the level of originating ethical consensus.According to his pragmatist account of the meaning of abstract conceptswhere the meaning of those concepts is reciprocally related to the concreteuses we put the concepts to in practiceits not clear how a social norm

can be known, identified, or discriminated, completely prior to and inde-pendent of its applications.36

For instance, if we cannot really agree on what a right to free speech meansas a concrete legal requirement and as a justiciable bit of constitutional law,then it is not at all clear that we really agree on the basic right to free speechin the abstract. And the same goes for almost every other fundamental legal

35. MICHELMAN, BRENNAN ANDDEMOCRACY,supranote 4, at 60. The argument is tailored topromoting a particular understanding of the function of constitutional review and its institu-tionalization in an electorally unaccountable judiciary. I critically evaluate Michelmans theory

of judicial review but endorse his notion of openness as criterial for the requisite sensitivityof institutions of constitutional review in ZURN,supranote 1, at 163220 and 271272. Here Iam not concerned with which actual institutional arrangements actually carry the function of


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provision of a democratic constitutional order: the ethical consensus thatendorses the content in the abstract (and substantively underwrites orig-inating legitimation) is nothing more than an apparent agreement, onepapering over real, irreconcilable disagreements concerning what that con-tent means in actual practice. But those very real disagreements vitiate thevery notion of a consensus at the abstract level, at least on the pragmatistclaim of a constructive reciprocity between a normative principles iden-tity and its applications.37 Thus the substantialist ethical consensus whichwas to stop the regress is itself undermined by reasonable interpretive plu-ralism, a pluralism that practically shows itself only in the institutions oflegal application that were supposed to gain their own proceduralist legiti-macy through their democratic openness to disagreements over the correctinterpretation of the (only apparently) shared constitutional provisions.

In short, both the substantialist and proceduralist solutions to the para-dox of democratic procedures are threatened by Michelmans claim of asemantic reflexivity between abstract and concrete contents of a given prac-tical concept. If we adopt a threshold conception of legitimacy, then we haveno sufficiently determinate substantive consensus to stop the regress, norcan we allow a proceduralist test for legitimacy in the more contested areasof our collective life without having already met the specific necessary andsufficient criteria for the general legitimacy of the constitutional system.

Both solutions, however, look much more promising on the logic ofregulative ideals. On the substantialist level of originating consensus, wealready know that Michelman believes this consensus is feasible only as anachievement of a culture over time, as more and more citizens become so-cialized into the institutions and practices carried out in the light of thoseideals of constitutional democracy originally shared by only a portion ofthe population. Perhaps a hope for a similar asymptotic approach towardconsensus is not unreasonable with respect to the applications of certainabstract constitutional provisions and principles. For instance, over time, asU.S. citizens have been socialized into a postsegregationist culture, the orig-inally controversial application of the Fourteenth Amendment to raciallysegregated public schools half a century ago is now almost universally takenas a correct application of the principle of equal protection under law.38

Surely such convergence does not end reasonable interpretive pluralismthe next question of whether equal protection requires race-sensitive orrace-insensitive policy regimes in public schools is still a live controversy39yet the degree of legitimacy achieved by the system over time is not simply

37. Id.

38. Brown v. Board of Education, 347 U.S. 483 (1954).Brownnow functions as what I callelsewhere a firmament case, acknowledged in the legal community as unimpeachably correct(ZURN, supranote 1, at 11) even though it was not always treated so; see, e.g., the attack on it


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flipped from all to nothing on account of some specific points of dissensusundermining the fulfillment of a determinate threshold goal.

On one reading, Michelman is not offering solutions to or ways outof the bootstrapping paradoxes but rather highlighting the ineliminableparadoxical condition we find ourselves in when we dedicate ourselves toself-government through the medium of constitutional law:

Any societys goals respecting democracy, self-government, and a rule of lawor of reason must be ones of approximation, of choosing among neces-sarily compromised offerings of necessarily damaged goods. . . . Teachingourselves to see our countrys constitutional democratic practices as, at theirbest, sisyphean attempts to approximate unsatisfiable ideals of democracy andself-government under lawnot just technically, but logically and conceptu-

ally unsatisfiablemay help us steer clear of foolish acts and proposals in thename of ideals that we nevertheless have reason to continue to hold.40

There is a sense in which his council here is to face bravely our fallencondition and stop trying to wish away paradoxes. But an alternative readingof this passage attuned to the logic of regulative ideals reveals a somewhatdifferent moral: constitutional democracy is not to be abandoned simplybecause we cannot easily supply necessary and sufficient criteria for disposi-tively determining whether a governmental system has or has not met those

criteria. Constitutional democracy is, rather, a complex set of regulativeideals that we hope our political practices, institutions, and laws will evermore closely approximate over time, even as we can never expect that setof ideals to be fully realized. Much like the coherentist response to the epis-temological problem of inferential regress, to return to the earlier analogy,the regulativist both denies that there is any way to step out of the recipro-cal relation between constitutionalism and democracy and denies that thisimpossibility leads to skepticism.

In summary, Michelman explicitly relies throughout on a regulative-ideal

conception of legitimacy rather than a threshold conception to avoid skepti-cism. Furthermore, his alternative moves to substantialist and proceduralistaccounts of legitimacy turn out to be immaterial with respect to the bite ofthe paradoxes: that depended rather on the logic of legitimacy assumed.

C. A General Argument against Substantialism

So far, the arguments against substantialist solutions to bootstrapping para-

doxes are limited to specific versions; Barnetts and Michelmans turns tosubstantialism fail to resolve or mitigate the paradoxes. I would like now to

b d t t th ff t th t h b t ti li t l ti i


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general cannot work, an argument inspired by Jeremy Waldrons argumentconcerning the political irrelevance of moral objectivity.

Waldrons argument starts from what he calls the circumstances of poli-tics. On the one hand, political consociation presents a coordination prob-lem whereby each recognizes that certain goals and goods can only be real-ized by deciding upon and adapting a common framework for action. Onthe other hand, precisely such a decision on a common framework seemsthreatened by the fact of reasonable pluralism.41 In short, we must makepolitical decisions even as normative disagreement persists. Some metaeth-ical positions suggest, however, that we might be able to step out of thecircumstances of disagreement if we have reference to certain foundationalmoral certainties or truths. The idea, simply, is that these objective moralcertainties about what is really right and really wrong can settle certain is-sues. Waldron claims, by contrast, that such moral objectivity is politicallyirrelevant, that is, it is distinctly unhelpful in the situation of a need forpolitical decision:

As long as objective values fail to disclose themselves to us, in our consciencesor from the skies, in ways that leave no room for further disagreement abouttheir character, all we have on earth are opinionsor beliefsabout objective value.The friends of truth will insist stubbornly that there really is, still, a fact of thematter out there. Really. And maybe they are right. But it is surprising how

little help this purely existential confidence is in dealing with our decision-problems in politics.42

Note that this argument is agnostic with respect to the metaethical con-troversy concerning the objectivity of moral values; it does not depend onany assumptions about the ultimate status of moral validity or truth claims.It is rather an argument about our epistemic limits when we are collectivelyconsidering political options.43 For even granting that there are some ob-jective truths about particular moral valuessay self-evident truths about

natural rightswe humans-all-too-humans have access to those truths onlythrough our limited epistemic tools, and the evidence from our use of thosetools is that we continue to have persistent disagreement about the contentand entailments of those moral truths and that such disagreement is the

41. SeeJEREMYWALDRON, LAW ANDDISAGREEMENT (1999), at 1112, 55, 7375, 101103, 112113.

42. Id. at 111 n.62. The argument is fully laid out in ch. 8 at 164187.43. Michelman likewise claims, when reflecting on reasonable interpretive pluralism, that

he is not denying that there is moral truth about correct applications of legal principles, only

insisting that such truths are politicallyunavailable to us under modern pluralism; Michelman,Human Rights, supranote 34, at 71. Habermas points out that this puts Waldron and Michelmanin the same boat: they neither endorse moral skepticism nor reject moral cognitivism. The


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predictable and reasonable outcome of the limits of practical reason in theface of moral complexity.44

How does all this relate to the substantialist strategy for ending the boot-strapping regresses of constitutional democracy? Recall that that strategyaims to end the regresses by reference to foundational substantive valuesthat can be used as an external check for legitimacy on the outcomes ofany given (constitutional or democratic) political procedures. But whencethe warrant for the claim that those substantive values are the correctonesand with the correct fulsome conceptions including their concreteentailmentsonce those values are challenged? If the substantialist claimsthat, for instance, it is objectively correct that all legal property rights flowfrom originating rights of first possession and that it is objectively false thatall legal property rights flow from originating acts of political consociation,it is hard to see exactly what is added by the phrases objectively true andobjectively false. For in the circumstances of politics, these claims have nomore force than I believe that it is objectively true, and so on, and addnothing to the clash of good-faith claims about the normative character oflegal property rights. But if that is the case, then it seems that there areno alternatives to engaging in procedures of practical reasoning together,directly about the claims and their supporting arguments, with the aim ofmaking binding legal decisions. However, in aiming at binding legal de-cisions for pressing coordination problems, we should reasonably expectcontinuing dissensus on those claims due to reasonable pluralism.

Thus there seem to be no (nonviolent) alternatives to adopting somekinds of closure mechanisms in the predictable absence of full substantiveconsensus, that is, no alternatives to adopting some decision procedures.And these proceduresthe procedures of constitutional democracyarethe ultimate test for the political legitimacy of the outcomes rather than anyparticular disputed set of substantive values. Of course, in those fortunatecircumstances where there is full consensus on some substantive politicalvalueandits practical entailments, we can provisionally take it off the menuof political debate and decision. But since even these provisional agreementscan be reopened and reinterrogated when subject to reasonable challenge,in the end we have recourse only to procedural tests for the legitimacy ofpolitical decisions. Appeals to substantialist founding truths cannot get usout of the bootstrapping paradoxes as long as we honestly acknowledge per-sistent reasonable pluralism and the need for decision mechanisms puttinga temporary end to debate. Notably, proceduralist approaches cannot get usout either, since we can always subject our currently accepted decision proce-dures to challenge and investigation for their constitutional and democraticworth. In the practical circumstances of politics that we find ourselves in,then, bootstrapping paradoxes threaten constitutional democracy whether


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IV. DEVELOPMENTALISM

In distinction from a strategy of trying to stop the bootstrapping regressesby stepping outside the reflexive relation of mutual presuppositionality be-tween constitutionalism and democracy, Jurgen Habermas attempts to ad-dress bootstrapping objections by adopting a developmentalist account ofthe legitimacy constitutional democracy, specifically in response to Michel-mans arguments.45 While I find that his attempt includes most of the el-ements of a promising approach to the bootstrapping problems in termsof regulative ideals, I also raise some questions about specific elements ofHabermass approach, especially where I detect that it contains lingeringtraces of a threshold logic of legitimacy. This leads to a reformulated ver-sion of developmentalism that can be productively applied not only to thetheoretical bootstrapping puzzles but also to the empirical cases indicatedabove.

A. Habermass Developmentalism

As Habermas presents it, constitutional democracy should be characterizedas a tradition-building collective project that institutionalizes a reflexive,self-correcting learning process. At its starting point during the founding,

such a project is legitimate exactly when it attempts to establish politicalprocesses, institutions, and laws that will approximate the ideals of constitu-tional democracy and when those processes, institutions, and laws will alsoset in motion a set of reflexive learning mechanisms that will enable theinstitutions ever more fully to realize those ideals over time.46

Turning from considerations of originating to existing legitimation,Habermas claims that we current citizens living under an extant politi-cal system can understand it as a legitimate constitutional democracy tothe extent to which we can understand ourselves as engaged in the same

project as the founding generation: instantiating the ideals of constitutionaldemocracy in political processes, institutions, and laws. The bootstrappingparadoxes are thus addressed not by looking for a stop to the regress be-tween constitutionalism and democracy but rather by putting the relationbetween the two into time and suggesting that the reflexive back-and-forth

45. This strategy is most clearly articulated in response to Michelmans challenge in JURGENHABERMAS, Constitutional Democracya Paradoxical Union of Contradictory Principles?,inTIME OFTRANSITIONS (113128) (Ciaran Cronin & Max Pensky eds., 2006) (originally published 2001in POLITICAL THEORY); and to the challenge of legal disagreement posed by Michelman and

Waldron in Habermas, On Law and Disagreement, supra note 43. Cronin, On the Possibility,supranote 30, provides an insightful reconstruction of the debate between Michelman andHabermas.


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between constitutionalism and democracy is productive, at least when itshows signs of being directed toward ever better realizations of the idealsimplicit in practices of constitutional democracy and of being so directedon account of its reflective capacities for learning from the mistakes andmissteps of past realizations:

In my view, a constitution that is democratic . . . is a tradition-building projectwith a clearly marked beginning in time. All the later generations have the taskof actualizing the still-untapped normative substance of the system of rightslaid down in the original constitution. . . . To be sure, this fallible continuationof the founding event can break out of the circle of a politys groundlessdiscursive self-constitution [i.e., out of the circle indicated by Michelman]only if this processwhich is not immune to contingent interruptions and

historical regressionscan be understood in the long run as a self-correctinglearning process.47

Three features of this proposal deserve further comment before engagingin a critical evaluation of some of its minor weaknesses as I see them. First,Habermas endorses a strong version of the thesis that both constitution-alism and democracy are required for legitimate political systems, namely,the thesis that they mutually presuppose one another; constitutionalism pre-supposes democracy, and democracy presupposes constitutionalism. Calling

this the intuition of the co-originality of constitutionalism and democracy,Habermas repeatedly stresses throughout his writings that this entails a re-lation of reflexivity between the two. For instance: The idea of the ruleof law [i.e., constitutionalism] sets in motion a spiraling self-application oflaw, which is supposed to bring the internally unavoidable supposition ofpolitical autonomy [i.e., democracy] to bear. The democratic principlestates that only those statutes may claim legitimacy that can meet with theassent of all citizens in a discursive process of legislation that in turn hasbeen legally constituted [i.e., constitutionalized].48 Constitutionalism and

democracy not only presuppose one another, then, but work in reciprocalrelations of mutual transformation over time.

Second, the temporal dimension of this proposal has a more specificsense than Michelmans idea of the gradual diffusion of core ideals so thatthey are shared by virtually all of the population. In contrast, for Habermasthe historical process must be both directionalin the sense of tending, allthings considered, in one wayand developmentalin the sense of becom-ing ever more capable of fulfilling its ideals over time on account of specificcompetences gained in learning processes. Directional development in the

case of constitutional democracies is evinced, then, not just in changes but inchanges that can be seen as simultaneously progressive and self-consciously


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responsive to prior inadequacies.49 Of course, actual learning almost neverfollows a smooth, parabolic, unidirectional line but occurs rather in fits andstarts, often with setbacks and partial regressions. While such contingencies

surely undermine a simple picture of uninterrupted progress, that is not arealistic view of the complex developmental paths of actual constitutionaldemocracies. More important, it is not required for legitimacy assessmentsthat can differentiate between general trajectories of development, of sta-sis, or of regression even as they must struggle to make such assessmentsin the light of historical records that are less than crystal clear. I assumethroughout the more realistic and discontinuous view without repeatingthese qualifications.

Finally, it should be clear that this picture of legitimacy is fully in accord

with the logic of regulative ideals. First, legitimacy assessments are approxi-mative, not binary: specific political systems may be more or less legitimateto the degree that they more or less approximate the ideals of constitutionaldemocracy, and assessing such is a complex matter of judgment. Second, asan achievement concept, legitimacy accrues to those systems we call consti-tutional democracies only on account of specific constitutive features theypossess. A governmental system is legitimate, on this account, to the degreeto which its political processes, institutions, and laws provide good evidencethat it has instantiated and will continue to instantiate the project of con-

stitutional democracy in a dynamic, self-correcting, and thus progressivemanner. Third and obviously, legitimacy is processual, a matter of achieve-ment over time; it is not something that accrues to a system in virtue of anyspecific collective action or at any determinate point in time. Finally, on thisHabermasian conception, legitimacy is not an achievable goal state but anideal: an asymptote approachable but never perfectly realizable. In part, theunrealizability of a project of constitutional democracy can be read directlyoff the constitutive openness it must show to learning, for unless the polit-ical system is fallibilistically open to revisiting its basic political processes,

institutions, and laws in the light of new information and new insights, itwill not be able to correct heretofore unnoticed problems and defects andthereby better realize the ideals of constitutional democracy.50

49. Habermass conception of progressive learning arises from a combination of theHegelian idea of dialectical progression and the specific stage-sequential logic of learningevident in developmentalist psychology as in Piaget and Kohlberg. A clear exposition anddefense of this conception of learning as Habermas applies it to underwrite some of his mostambitious claims concerning social evolution can be found in DAVIDS. OWEN, BETWEENREASON

ANDHISTORY: HABERMAS AND THEIDEA OFPROGRESS(2002).50. Thus worries expressed by agonistic theorists that Habermass political theory prema-

turely forecloses the democratic openness that agonists take to be constitutive of healthypolitics seem to me to be misplaced. For two different versions of the complaint that Haber-mas proposes a static, fully reconciled, and prematurely closed theory of constitutional


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In the above discussion of substantialist legitimacy tests, I argue that eachof the proposed testsBarnets natural-rights libertarianism, the individ-ual consent versions he rejected, and Michelmans ethical-consensus civicrepublicanismfall to debilitating bootstrapping paradoxes when they em-ploy the threshold logic inherited from the common notion of legality andthat they are salvageable once legitimacy is understood to operate on thelogic of regulative ideals inherited from Kantian practical philosophy. Itseems to me that the same follows for Habermass proceduralist test of le-gitimacy in terms of deliberative democratic constitutionalism. When wecombine the thesis of the mutuality or co-originality of constitutionalismand democracy with a threshold logic of legitimacy, the reflexivity betweenthe two ensues in an inescapable infinite regress such that no political pro-cesses could be rightly characterized as legitimate, as Michelmans paradoxof democratic procedures makes clear. Yet regulativism allows us to under-stand that reflexivity as not necessarily fatal to the very conceptual possibilityof conceiving of a legitimate constitutional democracy.

If the regulativist interpretations of all the conceptions of legitimacy facesymmetrical problems, why should one prefer Habermass thicker versionof developmental regulativism? It seems to me that the benefits come fromthe way in which developmentalism provides us quite useful additional cri-teria for evaluating and adjudicating claims concerning the legitimacy ofactual governmental systems. In a sense, by softening the hard edges oflegitimacy criteria, regulativism always opens the theoretical door to onewho wants to attribute constitutional democracy to any less-than-ideal po-litical system; on bare regulativism it is always possible in principle for thedefender of, say, a despotic government to claim that the current arrange-ments are approximations of the ideals of constitutional democracyjustlike most other political systems but at a different place on the scale ofachievement.

Developmentalism, however, adds further conditions that must be metin an assessment of legitimacy in addition to the assessment of absolutelevel of achievement in light of the legitimacy ideals it shares with simpleregulativism: the political system must evince historical evidence of spe-cific learning in the direction of the legitimacy ideals due to particularcharacteristics of the political system and it must currently evince politi-cal processes, institutions, and laws that warrant the expectation that suchlearning will continue into the future.51 Hence legitimacy assessments havea complex, tritemporal character: historical and contemporary evidence

51. Although some formulations in Michelman indicate that historical trends are impor-tant to legitimacy judgments, in general he tends to emphasize their presentist character to


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about the structural reasons for the actual performance of a system areessential for assessments of its expected future trajectory.52

Notably, these richer developmentalist criteria concerning the learningpotential of a given political system are formal criteria, applicable to mul-tifarious governmental forms, and, importantly, independent of the spe-cific content of the legitimacy test proposed. Thus any theory of legitimacyfrom libertarian substantialism to deliberative democratic proceduralismcan employ them; political systems can learn in the light of natural rightsor of discursive openness. Whatever ones preferred theory of legitimacy,developmentalism asks one to attend to specific features of an extant govern-mental systemconstitutional provisions, political processes, laws, culturalconditions, social arrangements, educational institutions, material condi-tions, and so onthat might underwrite or undermine assessments thatthe system has sufficiently approximated and is likely to continue ever moreclosely approximating the regulative ideals specified by ones theory. Andthe same is true for assessments of particular features of political systems thatrequire evaluation: Do particular featurescivilian control of the military,proportional representation, privately financed mass media, easy constitu-tional amendment procedures, widening wealth inequalitycontribute toor detract from the specific systems learning potentials with respect to therealization of the relevant regulative ideals, or do they have no appreciableeffect?

Finally, as these examples indicate, we can use different ideals and combi-nations of ideals in such judgments: from putatively universal high ideals (of,say, democratic self-legislation) to culturally specific ideals (of, say, Amer-ican liberty or Norwegian social security). These seem to me to be signalattractions of developmentalism if we are to employ our theories insightfullyto understand the actual political systems we find in the world.

B. Problems with HabermasIdentity over TimeNotwithstanding my enthusiasm for the developmentalist version of regu-lativism, I would like to suggest that two aspects of it ought to be givenmore abstract renditions. Let us begin with Habermass claim that there

52. I believe this goes a long way to assuaging Olsons and Honigs worries about theepistemic viability of predictions of progress, since on my account such predictions are not

purely future-oriented. Cf. Kevin Olson, Paradoxes of Constitutional Democracy, 51 AM. J. POL.SCI. (330343) (2007), at 333334; and Bonnie Honig, Dead Rights, Live Futures: A Reply toHabermass Constitutional Democracy,29 POL. THEORY(792805) (2001). Olsons introduction


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must be some fundamentally identical features between the projects of thefounders generation and that of the current generation. He claims that:

the interpretation of constitutional history as a learning process is predicatedon the non-trivial assumption that later generations will start with the samestandards as did the founders. Whoever bases her judgment today on thenormative expectation of complete inclusion and mutual recognition, as wellas on the expectation of equal opportunities for utilizing equal rights, mustassume that she can find these standards by reasonably appropriating theconstitution and its history of interpretation. The descendents can learn frompast mistakes only if the

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