The Legitimacy of the Juridical: Constituent Power, Democracy, and the Limits of Constitutional Reform

This article asks and answers the question of what conditions must be met for a constitutional regime to enjoy democratic legitimacy. It argues that the democratic legitimacy of a constitutional regime depends on its susceptibility to democratic re-constitution. In other words, it argues that a constitution must provide an opening, a means of egress for constituent power to manifest from time to time. In developing this argument, the article advances a distinction between ordinary constitutional reform-understood as subject to certain timits-and the exercise of constituent power through which a society produces novel juridical forms without being subject to positive law.