Cosmopolitanism and Constitutional Self-Government

Abstract

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is partly a function of that order’s responsiveness to the claims of citizens for institutional recognition and/or action (or inaction); judgments of legitimacy are, in part, judgments about normative responsiveness; 2) Distortion effects inevitably occur when citizens formulate their claims and when institutions translate and process them; in a constitutional democracy, such effects widen when impermissible social asymmetries of freedom and equality become ossified in constitutional doctrine and discourse; 3) Political legitimacy and the promise of self-government depend on the capacity of the constitutional system to build self-corrective mechanisms as means for preserving its responsiveness capacity. Legitimacy judgments are not binary judgments, but judgments of degree that can fine-tune to the existence and efficiency of such mechanisms; 4) Openness to the experiences in self-government of other political communities (for instance, by using foreign law in constitutional interpretation) is a self-correcting mechanism – it can open access to a community’s own processes of self-government, and it should open access to its institutions. The paper presents these claims as elements of a cosmopolitan political philosophy of constitutional law.