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Frank I. Michelman, Can Constitutional Democrats Be Legal Positivists? Or Why Constitutionalism?, 2 Constellations 293 (1996).

Abstract: Using the proposed constitutional amendment to ban the desecration of the US flag as a case study, the tension between legal positivism & popular sovereignty is explored. The collective will of the governed constitutes the highest law in a constitutional democracy. In contrast to this democratic positivism, the constitution itself predates the will of the people since it is based on a preexisting moral idea. The controversy over flag desecration forces the question as to whether such a preexisting idea requires protection in the face of unpopular political expression. Constitutional democrats, it is argued, must therefore be legal antipositivists. More than an exercise in free will, however, constitutional amendment making is also an ethical judgment & moral commitment. Popular sovereignty, therefore, is both an expression of the people’s will to make law in the way they see fit, & a search for the opposite – a higher ethical & moral position.