What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.

Today we face a long-run crisis of democratic legitimacy. Our increasing human interdependence is steadily increasing the numbers of “collective action,” or “free-rider” problems. Those problems in turn require increasing amounts of state coercion. Yet, in part precisely because state coercion is growing, that coercion is becoming less legitimate. As the demand for legitimacy increases and the supply decreases, every ounce of legitimacy becomes more precious.

A long-run response to this crisis requires many changes, including major restructuring to decrease inequality.

A relatively modest, but perhaps practicable and far-reaching, change in our thinking would make recursivity, meaning mutually responsive and iterated communication between representatives and constituents, more central to both the ideals and the practices of the representative system. In the aspirational ideal of recursive representation, representatives in the legislative, administrative, and societal realms engage in ongoing back-and-forth communication with their constituents. That recursivity allows each party to listen and learn, facilitating mutual influence and mutual adjustment. Because the process is more respectful of each citizen than the current system, the outcomes are more likely to reflect citizens’ needs. The resulting coercion should be both more defensible normatively and experienced as more legitimate.

Chapter 2 addresses the legitimacy of intervention by international courts – unelected international bodies – in the decisions of democratically elected domestic officials. The chapter starts by delineating the commitment of international courts to the text of treaties that regulate their jurisdiction. It continues by explaining when expansive interpretation of these treaties is legitimate because the process of negotiation or revision of treaties gives certain countries an unjustified power to limit the treaty obligations of all member countries. Finally, the chapter explains that even if a country fully controls its treaty obligations it may not properly represent the interests of all parties affected by the treaty because of so-called democratic failures, justifying the use of expansive interpretation by international courts.