The Absent Sovereign and the Invisible Foundation: Political Liberalism’s Aporias in Theorizing Constituent Power

Key Concepts

Ferrara’s Sovereignty across Generations rests on a bold interpretive claim: Rawls’s Political Liberalism (2005 [1993]) should be understood not as a closed system but as an expandable paradigm capable of addressing problems beyond its original scope. Where many read Rawls’s turn from A Theory of Justice to Political Liberalism as narrowing political philosophy to accommodate reasonable pluralism, Ferrara identifies an opening. The very features that make political liberalism distinctively anti-foundationalist—its refusal of comprehensive doctrines and its grounding in public political culture—also equip it to theorize the temporal dimension of constituent power.

Three Rawlsian “breakthroughs” provide conceptual infrastructure for this temporal turn (Ferrara 2023: 21–25). First, normative democratic dualism acknowledges that constitutional law and democratic politics exist in a productive tension: constitutional law constrains ordinary politics while simultaneously requiring democratic legitimation. Second, legitimation by constitution holds that political power becomes legitimate when exercised according to a constitution that all citizens can reasonably accept—Rawls’s liberal principle of legitimacy. Third, and most consequential, what Ferrara terms the “revolution of the most reasonable”: constitutional essentials should be settled by appeal to the most reasonable political conception of justice available within public political culture, rather than by majoritarianism, comprehensive doctrine, or judicial fiat.

This third breakthrough enables Ferrara’s central innovation: distinguishing serial from sequential sovereignty. Serial sovereignty treats each electoral cohort as fully sovereign, possessing the same constituent power as the founding generation. Each election potentially refounds the constitutional order. Sequential sovereignty, by contrast, understands each generation as a co-author of an ongoing constitutional project, bound by vertical reciprocity to past and future generations. Where Rawls’s original reciprocity operates horizontally among contemporaries—citizens owe one another terms of cooperation all can reasonably accept—vertical reciprocity extends this temporally: each generation inherits obligations to interpret the constitution faithfully, preserve core commitments, and amend only consistently with constitutional identity.

For Ferrara, populism represents not merely rhetorical style but a coherent—if normatively deficient—constitutional theory whose core error lies in embracing serial sovereignty. Drawing on analyses of contemporary populist movements, Ferrara offers a tripartite definition (2023: 66–80): populism equates the people to the current electoral majority, asserts unlimited constituent power unconstrained by inherited commitments, and presumes intolerance of pluralism is justified when “the people” speak.

The first element operates on both synchronic and diachronic levels. Synchronically, populism collapses internal pluralism into simple majority rule, denying that “the people” comprises diverse reasonable perspectives. Diachronically, it produces a temporal flattening of democratic sovereignty: whereas constitutional democracy distinguishes between the people as constituent power, that is, authors of the constitution, and the electorate as constituted power, that is, actors within the constitutional framework, populism erases this distinction. Every election becomes potentially refounding; every electoral victory claims authority not merely to govern but to reconstitute governance itself. This dual reduction enables the second element: if the current electoral majority simply is the whole people, constitutional limits on its authority become illegitimate fetters on popular sovereignty.

The third element—presumptive intolerance—follows logically. If the people have spoken through electoral victory, opposition becomes resistance to the sovereign will itself, rather than a legitimate political disagreement. Pluralism represents problematic fragmentation of the unified popular will rather than a permanent feature of free societies. Ferrara’s diagnosis cuts deep: populism offers a legitimacy theory that renders liberal constitutionalism internally incoherent, as any constraint on electoral majorities becomes an anti-democratic imposition. Political liberalism must therefore articulate an alternative conception of sovereignty that neither reduces to populist voluntarism nor abandons democracy in favor of juridical guardianship.

Ferrara’s constructive proposal develops across several chapters, but its conceptual core can be stated directly: constituent power operates “always under law” (2023: 2)—not under positive constitutional law, which constituent power creates, but under the normative standard of “the most reasonable.” This audacious move attempts to thread the needle between Kelsen’s reduction of constituent power to a legal norm and Schmitt’s identification of it with pure political decision (Kelsen 1967 [1960]; Schmitt 2008 [1928]). Against Kelsen, Ferrara insists constituent power is real and exercises genuine authority; against Schmitt, he maintains this power is never normatively unbounded.

But under which law does constituent power operate? Not natural law—political liberalism’s anti-foundationalism precludes appeal to pre-political moral truths. Not positive constitutional law—that would eliminate constituent power entirely, making constitutions self-authorizing. Ferrara’s answer: constituent power operates under the law of “the most reasonable.” This standard, derived from Rawls’s later work, identifies the political conception of justice that best coheres with fundamental ideas implicit in public political culture, while proving most capable of commanding agreement among citizens affirming different comprehensive doctrines. As Rawls writes, citizens are reasonable when “prepared to offer one another fair terms of cooperation according to what they consider the most reasonable conception of political justice” (Rawls 2005 [1993]: 446). Ferrara extends this synchronic principle diachronically: reasonable citizens across generations owe one another fair terms of constitutional cooperation.

This extension generates Ferrara’s central normative innovation: vertical reciprocity. While intergenerational justice theories typically address resource distribution or environmental obligations to future generations, Ferrara applies reciprocity to constituent power itself. Just as Rawls’s reciprocity binds contemporaries in mutual justification relations, vertical reciprocity operates temporally: each generation inherits a constitutional project from predecessors and bequeaths it to successors, with obligations to interpret faithfully, preserve core commitments, and amend consistently with constitutional identity (cf. Rawls 1971 on just savings principle). Ferrara distinguishes four manifestations of constituent power—regime change, secession, merger, and amendment—each subject to different normative constraints derived from vertical reciprocity (2023: 156–176).

The practical implications prove striking. Constitutional courts serve as representatives of the transgenerational people, interpreting the constitution through the lens of “the most reasonable” rather than current electoral preferences. This is not counter-majoritarian, but differently democratic: judges represent the demos across time, while legislatures represent the electorate at a given moment. Building on Michelman’s notion of “reflective fidelity” and developing what he calls “political originalism,” Ferrara argues proper constitutional interpretation seeks the meaning that “the most reasonable” political conception would attribute to constitutional provisions—neither frozen at founding nor unmoored from text (Ferrara 2023: 224–246; Michelman 1995, 1999).

Finally, Ferrara extends Rawls’s liberal principle of legitimacy with two additional principles: constitutional legitimacy (constituent power is legitimate when establishing a constitution that conforms to the most reasonable conception) and amending legitimacy (amendments are legitimate when they preserve the constitutional identity as defined by implicit unamendables). These implicit unamendables—principles such as democratic governance, basic rights, and the rule of law—cannot be amended without destroying the constitutional project itself. They represent the transgenerational compact that vertical reciprocity protects (Ferrara 2023: 259–280).

This is Ferrara’s argumentative architecture: a constitutional theory that locates sovereignty neither in electoral majorities nor in juridical interpretation alone, but in a transgenerational demos bound by vertical reciprocity and guided by the standard of “the most reasonable.” Its ambition is undeniable, its internal coherence impressive, and its engagement with constitutional practice sophisticated. Yet, as recent critical scholarship has shown, this architecture encounters structural tensions that may reveal fundamental challenges within political liberalism itself, rather than being contingent features of Ferrara’s specific formulation.

Contributions to Constitutional Theory

Recent scholarship on Sovereignty across Generations has established at least three lasting contributions that transcend debates about Ferrara’s specific framework. These achievements—recognized even by critics who question other aspects of the theory—represent genuine advances in constitutional and democratic theory that will shape future work on constituent power, temporal legitimacy, and the conceptual structure of populism.

The most significant accomplishment lies in demonstrating that political liberalism offers a genuine alternative to the Kelsen–Schmitt debate that dominated twentieth-century constitutional thought. Ferrara rigorously demonstrates that Rawls’s “most reasonable” provides a third path between legal positivism and decisionism (2023: 93–134), a contribution that Michelman (2024: 1425) justly recognizes as advancing constitutional theory beyond ossified binaries.

Kelsen’s reduction of constituent power to the logical presupposition of a legal system—the Grundnorm—eliminates the normative question of legitimacy by dissolving constituent power into a purely formal requirement of legal thinking rather than an act of political will (Kelsen 1967 [1960]). Schmitt’s existential decisionism restores the political reality of constituent power, but at the cost of rendering it normatively arbitrary, a matter of pure will unbound by law or reason (Schmitt 2008 [1928]). Between these positions, most constitutional theorists have felt compelled to choose either law all the way down (where constituent power evaporates into legal formalism) or decision all the way down (where constituent power becomes indistinguishable from force).

Ferrara demonstrates convincingly that Rawls’s “most reasonable” offers normativity without a natural law foundation, providing constraint without relying on legal positivism. The standard is neither metaphysical (making no claims about pre-political moral truths), nor merely formal (possessing substantive content derived from public political culture). This represents genuine theoretical progress. Where Jürgen Habermas’s discourse-theoretic grounding risks infinite regress—conditions for legitimate discourse must themselves be legitimized—and where Dworkin’s rights-foundationalism struggles to avoid moral realism, Ferrara’s Rawlsian approach locates normative constraint in the requirement that constitutional arrangements be justifiable to all reasonable citizens (Ronald Dworkin 1986, 2006; Habermas 1996). Constituent power is always under law, not because natural law pre-exists politics, nor because positive law constrains itself paradoxically, but because reasonable citizens owe one another justifications respecting their status as free and equal.

Ferrara’s careful reconstruction of both Kelsen and Schmitt, generous in interpretation while precise in critique, provides a model of productive engagement between Anglo-American and Continental traditions. Whether one accepts his overall framework or not, the demonstration that a third position exists between legal positivism and decisionism enriches the conceptual terrain for all subsequent work on constituent power.

Ferrara’s second major contribution lies in taking temporality seriously as a constitutive dimension of constitutional legitimacy, a point emphasized by Greta Favara and Roberta Sala (2024: 9) in their assessment of the book’s innovations. Most democratic theory operates synchronically, asking how citizens living at the same moment can legitimately govern themselves across differences. Even theories of constitutional change typically treat time as an external parameter rather than an internal feature of legitimacy itself. Ferrara’s innovation is to constitutionalize temporality—making the temporal extension of constitutional order across generations not merely a sociological fact but a normative requirement.

Vertical reciprocity represents Ferrara’s most original theoretical intervention. While Rawls’s reciprocity binds contemporaries in mutual justification relations, vertical reciprocity extends this principle diachronically: each generation stands in reciprocal obligation relations to those who came before and those yet to come. This is not Burke’s notion of society as a partnership between the dead, living, and unborn—Ferrara’s account lacks Burke’s metaphysical commitments and aristocratic nostalgia (Burke 1999 [1790]). Nor is it simply Rawls’s passing references to “just savings principle” or obligations across generations, which remain peripheral to his theory. Rather, vertical reciprocity makes transgenerational obligation central to constitutional legitimacy itself.

The theoretical payoff is substantial. Ferrara provides a framework for distinguishing legitimate constitutional evolution from illegitimate constitutional rupture. Why object when populist governments systematically hollow out constitutional constraints? Not simply because they threaten minority rights or undermine democratic procedures, but because they violate vertical reciprocity—treating constitutional inheritance as if it belonged to them alone rather than as a project held in trust for predecessors and successors. Constitutional continuity becomes a matter of intergenerational justice, not merely institutional inertia or elite preference.

Moreover, Ferrara’s fourfold typology of constituent power—regime change, secession, merger, and amendment—provides genuine analytical clarity (2023: 156–176). By distinguishing these manifestations and subjecting each to different normative criteria, he moves beyond the crude binary of constituent versus constituted power. Secession invokes constituent power differently than regime change; merger raises different legitimacy questions than amendment. This conceptual refinement enables more nuanced evaluation of actual constitutional practice.

Compared to other approaches, Ferrara’s temporal innovation surpasses them. Bruce Ackerman’s “constitutional moments” remain episodic, lacking a continuous normative framework linking moments of higher lawmaking (Ackerman 1991–2014). Jed Rubenfeld’s concept of “constitutional self-government” posits temporal extension but provides insufficient normative criteria for distinguishing between legitimate and illegitimate constitutional transformations (Rubenfeld 2001). Joel I. Colón-Ríos’s defense of radical constituent power cannot explain why any constraints on democratic revision could be legitimate (Colón-Ríos 2012). Ferrara alone provides both the concept (vertical reciprocity) and the normative standard (“the most reasonable”) to make sense of constitutional continuity as a requirement of justice rather than merely stability.

Ferrara’s third enduring contribution lies in treating populism not as a pathology to be dismissed but as a conceptual structure to be understood. His tripartite definition—identifying the conflation of people with the electorate, the claim to unlimited constituent power, and the presumption of justified intolerance—captures something essential about contemporary populist movements while avoiding both the vagueness of purely rhetorical definitions and the parochialism of regionally specific accounts (Ferrara 2023: 66–80).

What distinguishes Ferrara’s analysis is recognition that populism responds to genuine democratic deficits. Hyperpluralism can fracture political communities to the point where constitutional consensus seems impossible. The elite capture of political institutions creates justified resentment among citizens who experience democracy as an oligarchy. Constitutional courts can exercise power, appearing democratically unaccountable. Populism’s appeal lies partly in its promise to restore popular sovereignty against these perceived usurpations. The error lies not in recognizing these problems but in the conceptual framework populism employs to address them—specifically, the embrace of serial sovereignty.

By diagnosing serial sovereignty as the core conceptual commitment of populism, Ferrara illuminates why populist movements consistently move toward constitutional transformation rather than mere policy change. If each electoral cohort possesses full constituent power, then winning an election authorizes fundamental constitutional revision. The populist leader doesn’t merely govern; she refounds. This explains phenomena that purely institutional or sociological accounts struggle to clarify: why populist governments systematically attack constitutional courts, why they conflate electoral victory with popular will, and why they treat opposition as illegitimate rather than merely mistaken.

These three contributions—transcending the Kelsen–Schmitt binary, constitutionalizing temporality through vertical reciprocity, and diagnosing the conceptual structure of populism—represent lasting achievements that will continue to shape debates about constituent power, constitutional change, and democratic legitimacy. It is precisely because these contributions are so substantial that the tensions within the larger architecture demand careful examination. A theory this ambitious, built on foundations this solid, warrants a critique matching its seriousness.

The Aporia of Invisible Transcendentalism

The first tension concerns the very possibility of “normative but non-foundationalist” political theory—a possibility upon which political liberalism stakes its identity but that Ferrara’s temporal extension may inadvertently undermine. Niesen captures this tension precisely: “Any norm that is supposed to constrain future constituent power must, by its very nature, float free of the empirical political culture from which it allegedly derives” (Niesen 2024: 1467). This raises an unavoidable question: How can “the most reasonable” be simultaneously (1) derived from reflective equilibrium within a particular political culture, as Rawls’s original conception requires, and (2) universally binding across generations regardless of their actual commitments, as Ferrara’s vertical reciprocity demands?

Ferrara insists throughout that constituent power operates “always under law” (2023: 2), yet this law can be neither natural law nor positive constitutional law. Natural law would reintroduce the metaphysical foundations that political liberalism renounces; positive constitutional law would eliminate constituent power by making the constitution self-authorizing. His solution locates the governing law in “the most reasonable” conception of justice—that standard which best coheres with public political culture while commanding agreement across reasonable comprehensive doctrines. Yet, here lies the aporia: “the most reasonable” functions as a quasi-transcendental norm despite Ferrara’s protestations to the contrary. It provides universal criteria for constitutional legitimacy across all contexts and historical moments. It binds future generations who never consented to it. It constrains what democratic majorities may legitimately decide.

Before pressing this critique, we must construct the strongest possible defense of Ferrara’s position, as he articulates it in his recent symposia responses. His defense proceeds in three moves. First, “the most reasonable” remains genuinely political rather than metaphysical because it emerges from public political culture, not from philosophical speculation about pre-political moral truths (Ferrara 2024a, 1476–78). When judges or citizens invoke the most reasonable standard, they appeal to shared constitutional commitments that are already implicit in their political tradition, thereby distinguishing political liberalism from natural law theories that ground legitimacy in norms existing independently of any particular political community.

Second, vertical reciprocity doesn’t impose obligations through mystical transgenerational communion but through the logic of citizenship itself. To be a citizen is to inherit a constitutional project from predecessors and hold it in trust for successors. This temporal structure is constitutive of political membership, not an external constraint upon it (Ferrara 2024b: 142). Just as citizens owe horizontal reciprocity to contemporaries—accepting only terms that others as free and equal can reasonably accept—they owe vertical reciprocity across time.

Third, the charge of transcendentalism misunderstands the epistemology of political liberalism. “The most reasonable” doesn’t function as foundational precisely because it remains subject to reflective equilibrium and democratic contestation within each generation. Constitutional interpretation applies this standard to new circumstances, allowing evolution while maintaining fidelity. The transgenerational people aren’t a metaphysical subject but a political reality—the continuous constitutional project connecting founders, current citizens, and future generations.

This defense has considerable merit and warrants serious engagement. Yet, it ultimately raises more questions than it resolves, questions driving toward the heart of political liberalism’s internal tensions. Three arguments illuminate the depth of the aporia.

First, the circularity problem. Ferrara claims “the most reasonable” is determined through public reason among free and equal citizens. But who counts as “free and equal”? The answer: citizens whose status is guaranteed by a constitutional framework grounded in the most reasonable. The standard both derives from and determines the political constituency. We need the standard to constitute the people, but we need the constituted people to generate the standard.

This circularity might be dismissed as merely formal—every political theory faces bootstrapping problems. But Ferrara’s temporal extension deepens the difficulty. If the most reasonable derives from public political culture at the founding, how does it bind later generations whose public political culture has evolved? Either (a) the most reasonable remains fixed at founding, making constitutional identity essentially static, or (b) each generation redetermines the most reasonable through its own public political culture, making vertical reciprocity contingent on continuing agreement. Ferrara wants neither option: he needs “the most reasonable” to evolve responsively while maintaining binding force. The circularity isn’t merely formal but generative of a genuine dilemma about the source and stability of normative constraint.

Second, the epistemological problem. Rawls’s original account derives the most reasonable from reflective equilibrium within a particular political culture, making it relative to that culture’s history and commitments. However, Ferrara needs this standard to bind across generations, potentially with different political cultures. Post-founding generations inherit different comprehensive doctrines, face different challenges, and inhabit different moral universes than the founders. If the most reasonable is truly derived from political culture, it must shift as culture shifts. But if it shifts, what ensures continuity? What prevents each generation from redetermining constitutional essentials according to its own reflective equilibrium?

Iser identifies this tension as conflict between constitutional authenticity (fidelity to inherited identity) and justice (responsiveness to present demands), suggesting these may be irreducibly opposed rather than harmonizable through “the most reasonable” (2025: 38–40). The only escape from this relativization is to claim that the most reasonable transcends particular political cultures—that it represents a genuinely universal standard for constitutional legitimacy. However, this move transforms the political conception into something else: either a moral-philosophical truth claim (the most reasonable as an objectively correct standard, knowable through reason) or a procedural requirement so formal that it lacks substantive constraint (the most reasonable as whatever results from proper deliberative procedure). Ferrara resists both horns, insisting “the most reasonable” remains political, rooted in public culture yet binding across cultural change. The theoretical viability of this position remains contested.

Third, the temporal asymmetry problem. Rawls’s original public reason operates among contemporaries who can deliberate together, test proposals, and revise positions through reciprocal engagement. Vertical reciprocity extends this to past and future generations who cannot deliberate with us. But without actual deliberation, what makes the relationship genuinely reciprocal?

The dead cannot respond to our constitutional interpretations; the unborn cannot consent to obligations we impose in their name. What Ferrara calls “reciprocity” necessarily becomes metaphorical—not bilateral mutual recognition but unilateral attribution of obligations. The living generation decides what fidelity to predecessors requires and what obligations to successors demand. This transforms reciprocity from a dialogical exchange into an authoritative declaration. The transgenerational people whose will judges represent turns out to be, necessarily, the living generation’s construction of that will. Vertical reciprocity thus operates very differently from horizontal reciprocity: it involves living citizens imposing obligations on themselves in the name of absent others, rather than actual mutual recognition among co-deliberators.

Habermas’s Between Facts and Norms (1996) addresses constitutional continuity differently, grounding legitimacy in ongoing deliberative practice rather than inherited standards. Constitutional identity remains open to democratic renegotiation through discourse: each generation ratifies the constitutional project through communicative practices rather than simply inheriting obligations. This prevents reifying “the most reasonable” as quasi-transcendental. Yet, Habermas imposes significant procedural constraints: the co-originality of rights and democracy means majorities cannot override fundamental rights, since rights and democratic lawmaking mutually justify each other (Habermas 1996: 118–131). His discourse principle requires that laws be justifiable to all affected through inclusive, reason-giving deliberation, rather than by a numerical majority alone. These procedural requirements constrain what can be legitimately decided, even if they differ from Ferrara’s substantive constraints.

Ferrara’s concern is that Habermas’s procedural constraints, while preventing simple majoritarianism, prove insufficient for protecting constitutional identity across generations. Procedural legitimacy determines how decisions must be made, but not what content can be decided upon, provided that procedures are satisfied. Vertical reciprocity adds substantive constraints: inherited commitments bind even procedurally legitimate majorities. This reveals the deeper tension between procedural and substantive approaches to constitutional constraint. Moreover, constitutional transformation cuts both ways: while it risks populist erosion of rights, generational revision has also made constitutions more inclusive of minorities previously excluded. The challenge is distinguishing legitimate evolution from illegitimate rupture, a distinction that depends on whether constraint derives from procedure (Habermas) or substantive continuity (Ferrara).

This comparison illuminates a deeper division within political liberalism itself. Both Habermas and Ferrara inherit Rawls’s anti-foundationalist commitment: political legitimacy cannot rest on comprehensive moral doctrines. Yet, they diverge on how to sustain normative constraint without foundations. Habermas’s discourse-theoretic approach makes the procedure itself the normative anchor; here, legitimacy derives from inclusive deliberation that satisfies idealizing conditions (Habermas 1996: 109–112). Ferrara’s sequential sovereignty makes substantive continuity the anchor; here, legitimacy requires fidelity to transgenerational constitutional identity. Both strategies face the invisible foundation problem: Habermas’s idealizing discourse conditions function quasi-transcendentally, determining what counts as legitimate deliberation, just as Ferrara’s “most reasonable” interpretation does, determining what counts as constitutional fidelity. The aporia arises not from Ferrara’s specific choices but from whole political liberalism’s structural challenge: to provide robust normative guidance while disclaiming metaphysical grounds.

The Metaphysics of “The Most Reasonable”

The quasi-transcendental operation of “the most reasonable” merits closer philosophical scrutiny, for here political liberalism’s deepest tensions become visible. Ferrara insists this standard remains “political” rather than metaphysical because it emerges from public political culture rather than philosophical speculation about pre-political moral truths (2023: 127; 2024a: 1476). Yet, as Niesen observes, any norm binding future generations, regardless of their actual political culture, necessarily “floats free” of empirical grounding (2024: 1467). This creates what we might call the paradox of political normativity: standards that are simultaneously culturally derived and transgenerationally binding.

Claude Lefort’s concept of democracy as “empty place of power” illuminates what political liberalism risks losing. For Lefort, democracy’s great achievement lies in rendering sovereignty symbolically absent: no one embodies the people’s will, which remains perpetually contested and unoccupied (1988: 17–19). Where monarchy fills the place of power with the king’s body, and totalitarianism fills it with the party or leader claiming to make the people fully present, democracy keeps it structurally empty. This emptiness is not a deficiency but democracy’s defining feature: power lacks substantial embodiment, remaining subject to ongoing contestation.

Political liberalism, despite liberal intentions, risks filling this void. “The most reasonable” occupies the empty place of power, providing substantive content to what must remain formally open if democracy is to persist. Constitutional courts become authorized interpreters discerning what “the most reasonable” demands, translating the people’s will from its absence into juridical presence. This isn’t totalitarianism: Ferrara’s framework refutes those metaphysical commitments. Yet, the structural similarity reveals a tension: attempts to rationalize sovereignty may inadvertently re-sacralize it, investing constitutional identity with permanence that removes it from democratic contestation.

Hannah Arendt’s concept of natality offers alternative resources for thinking about constituent power. Political action, for Arendt, means initiating something genuinely new—beginning that cannot be fully predetermined by inherited principles (1998 [1958]: 177–178). Each generation’s constituent power embodies this natality: the capacity to reconstitute political order beyond what prior commitments permit. Natality is freedom’s temporal dimension—not simply choosing among predetermined options but bringing new possibilities into existence. A theory of vertical reciprocity that binds each generation’s beginning within constitutional identity inherited from predecessors necessarily limits natality, constraining the new to continuity with the old.

This contrast clarifies what’s at stake here. Political liberalism substitutes procedural reason (“the most reasonable”) for metaphysical substance (natural law, divine right, and revolutionary will), but proceduralism itself becomes the new transcendental, that is, the condition of possibility for legitimate politics that cannot itself be politically contested. “The most reasonable” determines what counts as reasonable contestation, rendering some political claims literally unreasonable and thus excludable from public reason. The standard meant to enable democratic deliberation across difference becomes the boundary delimiting legitimate difference.

Ferrara’s recent defenses merit careful consideration. Against charges of reintroducing metaphysics, he argues that “the most reasonable” operates within reflective equilibrium, remains subject to reinterpretation, and lacks the fixity of natural law (Ferrara 2024a: 1476–78). Each generation applies this standard to new circumstances through constitutional interpretation, a process that is ongoing rather than static. Constitutional courts don’t discover a pre-existing “most reasonable” interpretation, but rather construct it through interpretation constrained by the text, precedent, and public reason.

Yet, this defense encounters the temporal asymmetry problem in its most acute form. Reflective equilibrium among contemporaries involves actual deliberation where participants can revise positions through mutual engagement. Vertical reciprocity extends this across generations who cannot deliberate together. “The most reasonable” that binds future generations is necessarily the living generation’s interpretation of what past and future would agree to—a construction rather than discovery. Ferrara acknowledges that living generations interpret constitutional identity (2024b: 142), but insists that interpretation operates within the constraints of the text, precedent, and public reason. True, yet who determines these constraints? The interpreters themselves, claiming to represent the transgenerational people.

The circularity is not vicious but unavoidable: any attempt to constrain constituent power through trans-temporal norms must locate authority for those norms somewhere. If not in metaphysics (natural law, divine will), then in a procedure (public reason, reflective equilibrium, “the most reasonable”) that itself cannot be radically questioned without abandoning the framework. This procedure becomes the invisible foundation—invisible precisely because it presents itself as a method rather than a substance, a process rather than a ground, a political rather than a metaphysical one. Yet, a method that determines what counts as legitimate political contestation functions transcendentally: it establishes conditions of possibility for politics without itself being politically contestable.

Christine M. Korsgaard’s work on self-constitution offers an illuminating parallel (2009). For Korsgaard, practical identity provides normative authority: we are bound by principles constitutive of the identities through which we understand ourselves as agents. Yet, these identities are themselves chosen—we constitute ourselves as agents through commitments that then constrain us. This generates a paradox: the will both binds itself and remains free. Applied to constituent power, each generation both inherits constitutional identity (which constrains) and interprets that identity (remaining free). But Korsgaard’s framework operates at the individual level; extending it to transgenerational collectives introduces new difficulties. Individual agents can reflectively endorse or revise their practical identities; transgenerational peoples cannot collectively reflect or revise in this way. The living always performs the interpretation on behalf of absent others.

The aporia of political liberalism becomes clear: it cannot acknowledge the transcendental operation of “the most reasonable” without admitting foundationalism, yet it cannot sustain robust normative constraints without this quasi-transcendental function. The standard must be both political (emerging from actual political culture, subject to reinterpretation) and binding (constraining what political culture may legitimately decide). This tension may not admit of theoretical resolution because it reflects structural features of political liberalism’s project: providing normative guidance for democratic politics without metaphysical foundations.

The Aporia of the Absent Sovereign

The second tension concerns the ontological status of “the people” and the mechanism through which their sovereignty finds expression. Ferrara sharply distinguishes the transgenerational people, bearers of constituent power and ultimate sovereign, from the living electorate, which exercises merely constituted power within constitutional constraints (2023: 3–12). This distinction protects democracy from populist volatility by preventing electoral majorities from claiming unlimited constituent authority. Yet, because the transgenerational people lack empirical existence, its will must be accessed through representation—specifically, through judicial interpretation of constitutional identity. This creates the paradox of the absent sovereign: the bearer of ultimate authority exists only as mediated through those who claim to represent it.

Porat identifies the core problem here: judges interpreting constitutional identity “cannot be held accountable to the people they purport to represent, because those people—stretched across generations—never assemble, never vote, never speak except through judicial pronouncement” (2024: 6–7). This isn’t simply that judges exercise significant power—all constitutional systems grant interpretive authority to some institution. Rather, the difficulty lies in Ferrara’s theoretical architecture, which locates sovereignty itself in an entity that never speaks except through its alleged representatives. The transgenerational people cannot assemble, deliberate, authorize, or revoke representation. Its will becomes whatever judges discern when applying the standard of the most reasonable to constitutional questions.

This tension has deep roots in democratic theory’s recurring struggle to give “the people” determinate content without either reducing sovereignty to empirical majorities or elevating it beyond democratic reach. Let’s look at this theory’s path. Jean-Jacques Rousseau’s general will, famously, could not be represented, yet also could not be reliably identified with any actual assembly’s decision (1997 [1762]). Sieyès distinguished between constituent and constituted power, but left the exercise of constituent power mysterious: when does “the nation” speak (2003 [1789])? Schmitt made constituent power concrete through decisionism, but at the cost of rendering it normatively arbitrary (2008). Kelsen eliminated constituent power entirely, recognizing only legal norms (1967). Rawls rendered “the people” hypothetical through the original position—not actual citizens but idealized deliberators behind a veil of ignorance (2005).

The transgenerational demos represents a genuine innovation for the liberal theory. Yet, it is important to recognize that intergenerational obligations can be theorized without invoking a transgenerational sovereign, a distinction crucial for understanding Ferrara’s specific contribution and its attendant difficulties. The extensive literature on intergenerational justice offers multiple frameworks that recognize duties to future generations while locating sovereignty entirely in present citizens (Gosseries and Meyer 2009; Thompson 2011). These alternative approaches avoid the problem of the absent sovereign by denying that future persons participate in current constituent power, instead theorizing obligations as constraints on present sovereignty, rather than constituents of it.

Three distinct approaches merit attention. First, promissory frameworks treat constitutional commitments as binding promises that current generations inherit and may choose to honor, revise, or abrogate through appropriate deliberative procedures. Arendt’s (1998 [1958]: 243–247) account of political promise-making emphasizes that while promises create continuity across generations, each generation must actively ratify inherited commitments through its own political actions rather than passively inheriting obligations. Promises establish trajectories that subsequent actors may continue or modify when circumstances demand; the key is that continuation requires active engagement by living citizens, not automatic constraint by absent predecessors. Second, trusteeship models position living generations as stewards of inherited democratic institutions without making future persons part of the sovereign body responsible for making constitutional decisions. Dennis Thompson’s (2011) “democratic trusteeship” exemplifies this approach: present generations act as trustees of the democratic process itself, ensuring future citizens retain competent control over collective decision-making, but without claiming to represent an intergenerational demos. The trust relationship extends from the present to the future, imposing obligations on current trustees without creating future beneficiaries as co-sovereigns. Third, procedural constraint approaches impose heightened deliberative requirements for constitutional change—supermajority thresholds, extended timeframes, broad public engagement—without claiming these procedures represent transgenerational will (Thompson 2009: 116–142). Procedures create friction against volatility while preserving the present generation’s ultimate constituent authority.

Ferrara’s distinctive move is making the transgenerational people itself a sovereign, not merely the object of present obligations or the beneficiary of current trusteeship. This fundamentally alters the locus of constituent power: where alternative approaches leave ultimate authority with living citizens (constrained by obligations, procedures, or trust responsibilities), Ferrara locates sovereignty in an entity spanning past, present, and future generations. This generates the specific difficulty of the absent sovereign: a bearer of ultimate authority that exists only through judicial interpretation of its will. The living must always determine what transgenerational continuity requires, thereby making sovereignty dependent on interpretive acts that cannot be verified against the sovereign’s actual voice. Alternative approaches avoid this aporia precisely because they do not make future generations sovereign: they recognize intergenerational duties without constructing an absent yet authoritative transgenerational subject. Ferrara’s innovation thus secures coherence in constitutional continuity at the price of rendering sovereignty accessible only through juridical mediation.

The next three arguments deepen this aporia. First, the disenfranchisement problem. By locating ultimate sovereignty in the transgenerational demos, Ferrara effectively denies living citizens constituent power. The electorate may amend but not transform the constitution. Who decides the boundary between amendment and transformation? Courts, invoking the standard of the most reasonable and the requirement of fidelity to constitutional identity. Living generations thus cannot fundamentally reconsider constitutional commitments made by predecessors—at least not through ordinary democratic means. The result inverts democracy’s temporal logic: rather than each generation possessing authority to reconstitute its political order, dead generations govern the living through juridical intermediaries.

Pasquali develops this concern systematically, arguing that Ferrara’s framework risks transforming living citizens from authors into trustees of their constitutional order (2024: 115–118). Vertical reciprocity, intended to bind generations in mutual obligation, operates asymmetrically: past generations bind future ones through commitments that cannot be fundamentally revised without undermining their constitutional identity. Compare this with Thomas Jefferson’s famous dictum that “the earth belongs to the living” and his proposal that constitutions expire every 19 years (2001 [1789]). Jefferson’s position may be too radical, permitting excessive instability. But Ferrara’s framework swings far in the opposite direction, making living citizens trustees of an inherited project they cannot fundamentally revise.

Second, the representation problem. Ferrara claims constitutional courts represent the transgenerational people through interpretation (2023: 217ff), engaging carefully with Hanna Fenichel Pitkin’s typology of representation and developing “political originalism” to explain judicial fidelity (Pitkin 1967). Yet, this deployment of representation evacuates the concept of its democratic core. Ordinarily, representatives are accountable to those they represent, derive authority from their authorization, and can be corrected when they misapprehend the represented’s will. None of these conditions holds for Ferrara’s transgenerational representation.

Michelman, while defending Ferrara’s dualist framework against some critics, acknowledges the tension: “Courts claim to represent ‘We the People’ across time, but this representation lacks the reciprocal accountability that makes representation democratic” (2024: 1428–29). Courts are not accountable to the transgenerational people, do not derive authority from that people’s authorization, and cannot be corrected when they err.

What Ferrara calls “representation” operates more like guardianship or trusteeship—the interpreter claims to act in the best interest of a principal who cannot speak for itself. This may be defensible as constitutional practice, but calling it representation obscures rather than clarifies the relationship. When judges invoke constitutional identity, they necessarily construct that identity through their own interpretive judgments. The transgenerational people’s will is not discovered but created through the act of interpretation itself. This doesn’t make interpretation arbitrary—it indeed operates within constraints of text, precedent, and public reason. But it does mean that sovereignty effectively resides in the interpreters rather than the interpreted, however much the theory asserts otherwise.

Third, the constitutional theology problem. Lefort famously argued that democracy’s great achievement was rendering the place of power symbolically empty—no one embodies sovereignty, which remains perpetually contested and unoccupied (1988). Totalitarianism, by contrast, claims to make the people fully present through the party or leader. Ferrara’s framework, despite its liberal intentions, fills the void of power with the transgenerational demos as interpreted by the courts. Constitutional identity becomes sacrosanct, binding all future generations. Implicit unamendables function as dogmas beyond democratic revision. Courts become authorized interpreters discerning the sovereign’s will.

This structure mirrors what we might call constitutional theology: an invisible sovereign (the transgenerational people) whose will is interpreted by authorized intermediaries (courts) according to sacred principles (implicit unamendables) using authoritative methods (political originalism). The comparison is not intended polemically: Ferrara’s framework lacks the metaphysical commitments of religion. Yet, the structural similarity reveals a tension: political liberalism’s attempt to rationalize sovereignty may inadvertently re-sacralize it, investing constitutional identity with a permanence that removes it from democratic contestation.

These theoretical tensions generate practical puzzles when confronting actual constitutional conflicts. Consider recent crises in Hungary, Poland, and Israel. In each case, elected governments claimed democratic legitimacy for their constitutional reforms, while critics invoked the constitutional identity and the rule of law. Were these legitimate exercises of constituent power or violations of constitutional fundamentals? Ferrara’s framework suggests courts should decide by interpreting whether reforms preserve or destroy constitutional identity as judged by the standard of the most reasonable.

Yet, this answer raises as many questions as it resolves. In Hungary, the Fidesz government rewrote the constitution through procedures that were technically legal but arguably violated the democratic spirit. In Poland, judicial reforms arguably undermined judicial independence, yet they enjoyed electoral support. In Israel, judicial reform proposals have exposed a deep disagreement about whether strong judicial review itself is part of the country’s constitutional identity. Ferrara’s theory places ultimate authority with courts to determine these questions—but under what conditions might courts themselves err in their constitutional interpretations? What democratic recourse exists when judicial interpretation diverges from widespread constitutional understanding?

The challenge is not that Ferrara provides wrong answers but that his framework may inadequately specify the relationship between judicial authority and democratic self-governance. The goal of protecting democracy from populism is legitimate and urgent. Yet, the method—locating sovereignty in transgenerational demos accessible only through judicial interpretation—risks a different danger: insulating constitutional order from democratic revision to the point where living citizens cannot meaningfully exercise collective autonomy over their fundamental political commitments.

These two aporias—invisible transcendentalism and the absent sovereign—are not external flaws but structural features of political liberalism’s attempt to constrain constituent power. Ferrara’s Sovereignty across Generations and recent critical scholarship have brought these tensions into philosophical visibility with unprecedented clarity. The question becomes: can political liberalism acknowledge these aporias without abandoning its project, or must it continue asserting their solubility even as they prove constitutive?