The constitution as a law of lawmaking: Comments on Frank Michelman’s Constitutional Essentials

Abstract

A crucial insight in Michelman’s ‘Constitutional Essentials’ is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Yet the pervasiveness of moral disagreement – all-the-way-up; all-the-way-down – suggests, as I will argue, a democratic-experimentalist turn, which focuses on a non-hierarchical process of stakeholder deliberation and the court’s role in instigating and overseeing that process, ensuring non-domination. I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively necessary for democratic politics to succeed in divided societies. But I want to suggest that democratic experimentalism can offer further support to this claim.