Constitutional Legitimacy in the US

Constitutional Legitimacy: Reflecting on the Place of the US Constitution
According to Chau (2012), the concept of constitutional legitimacy refers to “the acceptance that an exercise in power is justified and therefore authorized, either implicitly or explicitly, by society at large” by a constitution (par.1). This is different from the concept of legality. Rather, constitutional legitimacy refers to how the legitimacy of laws are derived. In stark contrast to many European systems of government (because the US does not even have a figurehead of a monarch), the people, states, and the democratic process itself supports the legitimacy of the constitution. It is worth noting, however, as increasingly institutions which have been taken for granted in the United States as legitimate are being questioned, such as the Electoral College or the fairness of the voting process. “Establishing this legitimacy is arguably more important than the substantive provisions of the constitution, as a constitution that is substantively flawed but perceived as legitimate may yet endure, but a model constitution deemed illegitimate in the eyes of the people will never” (Chau, 2012, par.4).
The idea of constitutionality being derived from the will of the governed is implied in a great deal of American legal writing, and also political rhetoric. According to Barnett (2003), even if the constitution does not derive legitimacy from uniform consent, if the constitution contains reasonable precautions to ensure that imposed laws are just, the constitution therefore has legitimacy if consented to by the majority of the populace. For example, the US Constitution contains certain provisions for a fair trial, the electoral process, and obtaining consent from the governed. There is also the informally established process of judicial review, to ensure that laws are not unconstitutional.
Of course, one notable counter to this argument are the many unjust and undemocratic provisions within the US Constitution, including the disenfranchisement of women, allowance of slavery, and the difficulty (although not the impossibility) of making changes through the amendment process. One frequent criticism of the process of judicial review, however, is that the US Supreme Court can have excessive influence upon policy-making, including the constitutionality of abortion and legislative acts such as the Affordable Care Act (ACA).
Judicial review, it should be noted, is not limited to the US, but refers to the process through which the judiciary “determines what the constitution means, and such decisions are taken to prevail over the decisions of the democratic law-making institutions” (Marmor, 2007, p.70). The US Supreme Court arguably is yet another source of the legitimacy of the US Constitution because of its function as a check on excessive legislative actions, or the actions of other enforcement agencies such as the police, but on the other hand, justices are unelected and appointed for life (Matthews, 2020). The effects of the actions of a single president and his or her ability to have an influence upon the shaping of the nation’s highest court, based upon the ability to make multiple appointments for life, also questions the legitimacy of the extent to which the current constitution is enforced in a fair and unbiased manner, and in a manner which is responsive to the will of the populace. Of course, the justices can also substantially alter in their opinion over the course of their lifetime tenures, further isolating them from the immediacy of public opinion.
Still, although there is substantial questioning of specific aspects of the US Constitution spanning from the Electoral College to the current interpretation of the Second Amendment, to create an entirely new system of constitutional law for as complex and sprawling nation as the US would be extremely challenging. Although this was possible in the early days of the US, as manifested in the shift from the Articles of Confederation to the current US Constitution, and there have been many additions and changes to the territory to the US, the Constitution has remained one steady, uniting force, for all of its problems.
References
Barnett, R. (2003). Constitutional legitimacy. Columbia Law Review, 111-148. Retrieved from: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1044&context=facpub
Chau, B. (2012). Constitutional legitimacy: An analysis under Max Weber’s traditional sources of authority. Retrieved from:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192172
Marmor, A. (2007). Are constitutions legitimate? Canadian Journal of Law and Jurisprudence, 69-94. Retrieved from: https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2568&context=facpub
Matthews, D. (2020). The Supreme Court is too powerful and antidemocratic. Vox. Retrieved from: https://www.vox.com/policy-and-politics/21451471/supreme-court-justice-constitution-ryan-doerfler