© 2024 University of Bologna and John Wiley & Sons Ltd. Ratio Juris. Vol. 37 No. 4 December (314–329) Legitimacy in Constitutional Moments GORDON BALLINGRUD Abstract. This paper is about the concept of legitimacy in Ackerman’s theory of constitutional moments. Ackerman’s theory of the constitutional moment explains how constitutional change takes place outside of, and even in tension with, established channels of constitutional amend- ment. The main tool of legitimacy which Ackerman uses is popular sovereignty, to which he gives special features. Ackerman’s particular conception of popular sovereignty I name hy- perconsensus, and then I explore whether that is sufficient to justify deviations from Article V, as Ackerman claims. I conclude, with many others, that the constitutional moment needs more justificatory work. I offer reciprocity as a corrective procedural requirement as found in Rawls’s liberal principle of legitimacy. Doing so enhances the normative attractiveness of dual- ist democracy. 1. Introduction In his We the People volumes, Bruce Ackerman delivers his theory of the constitu- tional moment: a process of higher-lawmaking which supplements (and even super- sedes) the Article V procedures of American constitutional lawmaking. The process of a constitutional moment generates and displays the consensus which Ackerman puts at the center of its justification. As part of a dualist democracy, the American separation of powers allows a mass movement to signal that the higher-lawmaking voice of the (capital-P) People is speaking through successive dominant elections which serve as referenda on one party’s proposed constitutional revolution. Through overwhelming popular support, the constitutional moment claims a special justifica- tory status. Because the sovereign voice of the People is speaking, the hard technical limits of Article V do not apply. The sovereign’s law cannot bind the sovereign. This essay is about the account of legitimacy in the constitutional moment. Here I explore the methods Ackerman provides, arguing that there is a need for supplemen- tation. The general idea is that Ackerman relies on a higher-order form of consent to distinguish between consenting to allowing a chosen few to make ordinary law in ordinary times and the consent of the citizenry as a whole on matters of consti- tutional essentials. One party seeks approval for a project of major constitutional change from the whole People, who show their approval through successive election landslides. The central justificatory concept, then, is consent in the form of popu- lar sovereignty. I hope, however, to show that the tools Ackerman provides are not sufficient on their own. I add the concept of reciprocity to enhance the legitimacy of constitutional moments. The essay proceeds in the following way. First, I describe the structure and pro- cess of constitutional moments as Ackerman does. Second, I explore the secondary