Turtles all the way down? Is the political constitutionalist appeal to disagreement self-defeating? A reply to Cormac Mac Amhlaigh

Abstract

Cormac Mac Amhlaigh contends that political constitutionalists are committed to the view that disagreement goes “all the way down,” and that this is self-defeating. As a result, they have no basis for arguing for the superiority of political over legal processes. Drawing on Bernard Williams’s account of realism, this article argues that political constitutionalism merely insists that politics goes all the way down, because any juridical order must first provide an answer to what Williams called “the first political question” by offering a stable and reliable form of political authority. Moreover, any satisfactory response to this question must meet what Williams termed the “Basic Legitimation Demand” by offering a process that acknowledges the need to frame such authority in a non coercive or authoritarian manner by recognizing the disagreements and conflicts that give rise to the necessity for politics in the first place. Because politics goes all the way down, the authority and legitimacy of even “legal constitutionalist” mechanisms must be political and processual rather than moral. However, judged by these criteria more conventional political mechanisms, such as competitive party elections and the parliamentary debate and scrutiny of legislation, have certain advantages to which political constitutionalists have drawn attention. Therefore, Mac Amhlaigh’s critique proves mistaken because it misunderstands and so misrepresents the political constitutionalist argument and fails to address its main claims.