Sovereignty Across Generations : Constituent Power and Political Liberalism

Every cohort of voters may dream of being 'the people' under the sway of serial visions of sovereignty; or understand itself, more modestly, as co-author of a constitutional project in a cross-generational sequence rooted in the past and extending into the future. Sovereignty Across Generations offers a theory of democratic sovereignty and constituent power grounded in John Rawls's political liberalism. Neither exegetic nor abstractly analytic, this book assumes that 'political liberalism' is broader than Political Liberalism . In answering the question 'How is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?', the paradigm implicit in Political Liberalism enables us to address facets of that question that Rawls sidelined in the context of his time. Following populist threats to democracy, which were still latent in 1993, this book responds to the urgency of clarifying the proper relation of 'the people' (as transgenerational author of the constitution) to its pro-tempore living segment in its capacity as electorate and as co-author of the constitution. An explanation of that relation brings 'constituent power' into the picture and unfolds in seven steps that form the conceptual backbone of this book. By taking new steps in updating and revisiting political liberalism, this book reconstructs Rawls's implicit view of constituent power beyond the pages dedicated to it in Political Liberalism and brings that view into conversation with major constitutional theories of the twentieth century. This book is a must read for all those interested in the fields of politics, philosophy, and constitutional law. AN 3560366.pdf - Unknown Cover Sovereignty Across Generations Copyright Dedication Preface Acknowledgements Contents Introduction 1. The People and the Electorate: Serial and Sequential Conceptions of Democratic Sovereignty a. Constituent power as always ‘under law’: under which law? b. Constituent and amending power c. Two additional liberal principles of legitimacy d. A political conception of the people e. The mandate to represent the people, and its relation to democracy f. Evaluating the execution of the mandate to represent the people g. Vertical reciprocity, sequential sovereignty, and the limits of amending power 2. Plan of the Book 1. Why Political Liberalism? 1. Three Breakthroughs of Political Liberalism a. Normative democratic dualism: Rawls’s constitutionalism b. The liberal principle of legitimacy, or ‘legitimation by constitution’ c. The revolution of the ‘most reasonable’ 2. Political Liberalism and Its Main Competitors a. Habermas’s discursive approach to deliberative democracy b. Dworkin’s rights-​foundationalist approach to democracy c. Republican approaches to democracy: Pettit and Bellamy d. Agonistic conceptions of democracy: Mouffe and Tully e. Modus-​vivendi and ‘political-​realist’ liberalism: Gray and Williams f. Starting up where many leave off: a Hegelian approach to justice, post-​deconstructionist views of community, and political liberalism 3. Political Liberalism beyond Political Liberalism 2. Populism and Political Liberalism 1. How Not to Define Populism: Six Conceptual Dead Ends 2. A Three-​Pronged Definition of Populism 3. Populism and Democracy 4. The Populist Stream and Its Tributaries a. The people and the electorate b. Full and unlimited constituent power c. Presumptively justified intolerance 5. Is Left-​Wing Populism Significantly Different? 6. What the Definition Highlights and Some Questions It Leaves Open 3. Transcending an Ossified Binary: Political Liberalism on Constituent Power 1. Rawls and Kelsen on Constitutionalism: Three Points of Discordance a. Political realism in normative disguise b. Law and ‘the reasonable’ c. The groundlessness of the basic norm 2. Schmitt’s Existential Constitutionalism and Its Relevance for Political Liberalism a. The state is a constitution b. Why Schmitt’s constitutionalism is relevant for political liberalism: three points of interest c. Schmittian themes in political liberalism? d. Seven dissonances between Rawls and Schmitt on the nature of ‘the political’ 3. Transcending the Kelsen–​Schmitt Binary: Constituent Power within Rawls’s Constitutionalism 4. The Liberal Principle of Constitutional Legitimacy a. Constituent power as ‘always under law’ b. The ‘most reasonable’ as the normativity constituent power is under c. The liberal principle of constitutional legitimacy 4. Political Liberalism and ‘the People’ 1. A Self-​Constituting People? Lindahl’s Paradox of Constituent Power 2. A Political Conception of the People a. The two political capacities of a people b. Dispelling the conceptual ambiguity of ‘the people’ c. Rousseau’s riddle reformulated: ethnos and demos d. Excursus on self-​constitution e. Rousseau’s riddle solved: the commitment to share commitments 3. Four Manifestations of Constituent Power a. Regime change and constitutional authenticity b. Demos and secession c. Turning a demos into an ethnos d. Reigniting the radical democratic embers: the self-​correcting demos 5. Sequential Sovereignty: On Representing ‘the People’ and the Electorate 1. Understanding Political Representation: Pitkin’s Paradigm a. Descriptive representation and its limitations b. Symbolic representation c. Two kinds of formalistic representation d. Substantive representation e. The trustee version of substantive representation f. The delegate ​version of substantive representation g. Political representation, reasonable pluralism, and public reason 2. Rethinking Representation after Pitkin a. Mansbridge’s fourfold typology of representation b. Saward’s ‘representative claim’ c. Rehfeld’s eightfold typology of representation 3. Grounding Sequential Sovereignty: Time and Representation a. Representing ‘the people’ and the electorate b. Judicial review as representing the transgenerational people c. Three flaws of serial sovereignty 6. Representing ‘the People’ by Interpreting the Constitution 1. The Democratic Legitimacy of Judicial Review Revisited 2. Interpreting the Constitution: the Mandate of the Interpreter a. Reconciling the tension between two versions of the interpreter’s mandate b. Living originalism as ‘political originalism’ c. Modulating constitutional interpretation: strictures and amplitudes d. The contribution of judicial review to constitutional authenticity 3. The Normativity of the Most Reasonable and the Line between Interpreting and Transforming a. The standard of the most reasonable applied to adjudication b. The red line between interpretation and transformation c. Correcting the highest interpreter: author and interpreter of the constitution in conversation 7. Amending Power: Vertical Reciprocity and Political Liberalism 1. The Concept of Amending Power a. The function of amending power for democratic legitimacy b. The specificity of amending power 2. Four Facets of the Exercise of Amending Power a. Time for a change: when is amending needed? b. Corrective and ameliorative amendments c. Who is to amend what? d. The institutional venues of amending power 3. The Limits of Amending Power a. What can amending power not change? b. Why are implicit unamendables unamendable? c. Vertical reciprocity and implicit unamendability d. Amendments, permissible and impermissible: how to sort them? 4. The Liberal Principle of Amending Legitimacy Bibliography Index Abstract Every cohort of voters may dream of being ‘the people’, under the sway of serial visions of sovereignty; or it may understand itself more modestly, as co-author of a constitutional project in a cross-generational sequence rooted in the past and extending into the future. This book articulates a theory of democratic sovereignty and constituent power grounded in John Rawls’s political liberalism. His political philosophy and implicit constitutional theory offer an unsurpassed normative, yet non-foundationalist, account of the justness and legitimacy of political and legal orders. Neither exegetic nor abstractly analytic, this book assumes that ‘political liberalism’ is broader than in Rawls’s Political Liberalism of 1993. In answering the question ‘How is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?’, the paradigm implicit in Political Liberalism enables us to address facets of that question that the context of the time induced Rawls to sideline. In response to populist threats to democracy, still latent in the early 1990s, this book focuses on a hitherto neglected phrase within Rawls’s question: ‘over time’. That inconspicuous phrase signals the urgency of clarifying the proper relation of ‘the people’, as transgenerational author of the constitution, to its pro-tempore living segment in its capacity as electorate (a constituted power among other constituted powers) and as co-author of the constitution. An elucidation of that relation brings ‘constituent power’ into the picture and unfolds in seven steps that form the conceptual backbone of this book.