Popular Sovereignty And Legality

This talk, prepared for delivery at the 2008 Wayne State University Humanities Center Faculty Fellows Conference, explores the relationship between popular sovereignty and legality. Legality – in particular, legal rights entrenched in a constitution – often is thought to conflict with popular sovereignty in a way that mirrors the supposed tension between individual autonomy and legal authority. Both perceived conflicts, however, rest in part upon the problematic idea that the law knows better than legal subjects what to do in particular cases. In fact, legal authority is best justified as a means of resolving disputes about what to do in particular cases. A dispute-resolution account of law shifts the focus away from the supposed conflict between law on the one hand and individual autonomy or popular sovereignty on the other, and toward the function of law as a means of settling conflict about, among other things, what autonomy and popular sovereignty entail. In particular, the dispute-resolution account suggests that judicially enforced constitutional rights might serve as a relatively neutral means of settling disagreements about the relationship between political majorities and political minorities