Three Conceptions of Constitutional Legitimacy

The question of what makes a constitution legitimate is often answered by reference to the notion of popular sovereignty. But this reference is open to different understandings. It can point to the claim that a legitimate constitution is one that was made by the people, to the claim that a legitimate constitution is one that protects the rights of the people, or, finally, to the claim that a legitimate constitution is one that enables the self-government of the people. This chapter argues that these three conceptions of constitutional legitimacy are incompatible with one another, and that constitutional theory must choose between them.