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Frank I. Michelman, Cutting the Gordian Knot of Legitimacy Theory? An Anatomy of Frank Michelman's Presentist Critique of Constitutional Authorship (Reply to Ming-Sung Kuo), 7 Int'l. J. Const. L 715 (2009).


Abstract: If members of a populace consciously share a description of an essential, durable feature of the constitution in force in their country (say, its provision for resolving disputes concerning the constitution's meaning and application), must they also share a view of that constitution as the prior utterance of authors whose word is deemed binding? Can a constitution's liberal legitimacy be grounded in the historical facts of its authorship, as opposed to present and personal assessments of that constitution's substantive rightness? If the answers to those questions are "no" and "no," are referrals to authorship to be excluded from any place in an account of the possibility of constitutional legitimacy on liberal terms? These questions arise in the wake of Ming-Sung Kuo's contention that certain writings of Frank Michelman attempt yet fail to show how confirmations of constitutional legitimacy can be "unhinged" from referrals to constitutional authorship. All three should be answered "no."