Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that a developing constitution needs some standard to guide it towards legitimacy. Without such a standard, constitutional reform will be aimlessly indeterminate. After rejecting proposed solutions to these paradoxes based on political contestation, culture, and “constitutional patriotism,” I outline an alternative based on the ideas of dynamic constitutionalism and reflexive citizenship. This solution draws on material, structural, positive characteristics of the law to show how a dynamically evolving constitution can promote its own legitimacy from within, resolving both paradoxes in one stroke.
Paradoxes of Constitutional Democracy,
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