In Defense of Sequential Sovereignty: A Reply

It is a privilege to receive such careful reading and thoughtful feedback from distinguished colleagues who have taken the time to engage my attempt to develop a sequential conception of democratic sovereignty based on John Rawls's political liberalism. Even more grateful I am in consideration of the very difficult times—starting shortly after the book seminar held in Jerusalem on September 8, 2023—through which most of them had to sustain attention and dedicate energy to this project. It is indeed not easy for me to do justice, in this reply, to the wealth of comments that my interlocutors have generously offered. I will generally follow the order of their interventions, but will take the liberty at times to alter that order for the purpose of grouping responses to objections and criticisms substantively close.

Affective polarization and judicial review

In his comments, Iddo Porat—to whom I owe special thanks for his very appreciative assessment of my work—focuses on two main points: (i) judicial review as “neither necessary nor sufficient for representing the transgenerational will of the people,” contrary to my implicit portraying it as the reputedly best procedure for balancing constitutional project’s long-term consistency with the changing orientations of various temporal segments of “the people”; and (ii) the chances of this procedure to survive and effectively serve its purpose in an age of polarization. I'll postpone addressing his first point because it dovetails in some respects with concerns raised also by Roberto Gargarella, and their convergence allows me to offer just one integrated response on judicial review.

Concerning the phenomenon of radical polarization that we observe in many countries these days, it certainly endangers the viability of any institutional scheme, whether based on judicial review or political mediation, for reconciling the short-term orientation of the electorate with the long-term commitments of “the people.” Civility and reasonableness are the first victims of the clash between ideological coalitions for whom “there is something fundamentally wrong” with the opponent, who lacks democratic legitimation, is an enemy of democracy, and no longer an adversary within democracy—in sum, an opponent who shouldn’t be there, in the political arena, in the first place.

However, this problem affects not only political liberalism, on account of its being premised on the idea of an overlapping consensus that leaves out only marginal sectarian fringes. Even the latest development of Chantal Mouffe’s agonistic model of democracy¹ presupposes the superseding of crude antagonism (i.e., political stances that call into question the polity's basic structure) by democratic agonism—namely, an occasionally harsh confrontation but always among adversaries who share allegiance to a common core of constitutional values. Institutions fall prey to this logic, anticipated decades ago by the so-called “spoil system,”² and become battle-grounds of groups cemented by “presumptively justified intolerance” toward each other.³

This is indeed a serious challenge for constitutional democracy as we know it. My response is that the proper remedy must be sought in the right domain. I’m afraid that there is no strictly institutional recipe against this tide, no procedural safeguard against polarization. To be sure, courts and judges are not immune from this dynamic, though usually they are the last to be affected (with some exceptions): you need first to elect Trump, to nominate highly conservative, anti-Roe justices. Judges and justices also are exposed to polarization and, to be sure, Porat is right in pointing out that under such conditions there might be two rival reconstructions of the transgenerational people, not just one, and that such rift may feed the rise of “affective polarization.” In one sense, nothing new under the sun: even before the rise of populism, there has always been more than one reconstruction of “we, the people” as well as multiple versions of the people’s commitments. At the time of Plessy v Ferguson, in 1896, the “equal protection of the laws” clause of the Fourteenth Amendment was declared by the Supreme Court to allow for segregation. Half a century later, with Brown v Board of Education, the same clause was argued to exclude segregation. For some, as an act of protest flag-burning is protected by free speech, for others it is not.

However, in another sense, there is something new under the sun. Within the new climate of extreme polarization, what populist forces have caused to almost totally wane is the effort to bridge gaps, to cross over divides. This phenomenon is ubiquitous. One could easily grasp how political adversaries rapidly become irreducible enemies that deny each other’s legitimacy. Much less frequent is the chance to observe the opposite pathway: enemies who learn to respect each other as adversaries loyal to a set of common commitments. Perhaps—and this is a point for future reflection—those dispositions to civility, openness, and tolerance, are best rejuvenated not by institutions, but by large-scale, game-changing historical events that bring about new constellations. In Italy too, as in Israel, 1948 marks a new beginning, with a democratic constitution, after a bitter civil war that undergirded and accompanied the insurgency against Nazi occupants and their local fascist allies. But soon that antifascist convergence, in the years of the Cold War, gave way to a new polarization when for decades, in the 1950s and early 1960s, 80% of the citizens identified with such rival parties as the Christian-Democratic or the Communist one. Then slowly the acute polarization between left and right gave way to a more consociationalist way of governing, with Christian-Democratic majorities trying to engage and respond to the Communists’ campaigns and initiatives for social rights, but in the late 1970s came the years of internal terrorism, with the Red Brigades kidnapping and assassinating Aldo Moro. Moro, the most farsighted, courageous, and innovative Christian-Democratic leader, was the linchpin of this dialogue between the two political parties—a dialogue aimed at reaching a “historical compromise,” or enduring pacification, between the Christian Democrats and the Communists. His disappearance from the scene renewed once again polarization among the two major forces of Italian politics, now conservatively keen on kindling their rank-and-file traditional propensities. The prospect of a “historical compromise” waned due to the absence of a credible interlocutor on the Christian Democratic side and the temptation, on the part of the Communist Party, to reposition itself as more antagonistic. This re-polarized political climate was once more overcome not through any specific political or institutional reform, but rather because of the waning of the Cold War and eventually the Fall of the Berlin Wall. Even such sea-change, however, produced very short-lived effects. “The end of history” effect lasted only for a few years in Italy until a major criminal trial (known as “Mani Pulite,” or “Clean Hands”) saw many leaders indicted on counts of corruption (the endemic unofficial way of financing expensive party initiatives), led to a breakdown of the mainstream parties, and the era of Berlusconi, with its fierce polarization to which contemporary populism is heir, had its inception.

To sum up, when we raise the question “How can polarization be reversed?” we're asking a question about the change of a political and cultural horizon, that through its gradual evolution or sudden rupture, infuses meaning into or subtracts meaning from certain up to then habitual patterns of political conduct. This is not to say that the question admits of no answer, but simply that the answer is not likely to be found in the realm of institutional design, legislative initiatives, administrative action, or constitutional adjudication. Likewise, it is not to say that we should patiently wait for some historical windfall to reverse a trend to polarization. Rather that action should be aimed at the background conditions that may influence cultural change: namely, at the fostering of a democratic ethos of civility through education, at the safeguarding of the public sphere through legislative measures that may curb hate speech and fake news, and at the support of quality media as platforms for respectful democratic debate.

Constitutional fidelity versus ethical originalism

Assaf Sharon’s reconstruction of my defense of a sequential, as opposed to serial, understanding of democratic sovereignty is impeccable and occasionally brings in additional reflections that enrich my critical assessment of the flaws of Rawls’s teleological argument in favor of the implicit unamendability of constitutional essentials. For example, a fourth flaw of Rawls’s argument is identified by him as the “indeterminacy of restrictiveness.” Rawls argues that while amendments that expand the attribution of rights (e.g. the three Amendments related to the Civil War and the Nineteenth Amendment, that enfranchised women) are legitimate insofar as they bring the Constitution closer “to its original promise,” hypothetical amendments that restrict the existing rights should be declared invalid by the Supreme Court.⁴ To my three objections—namely, that (i) the substance of the “original promise” could be a contested notion, (ii) it is unclear how long the practice of constitutional democracy should have lasted before the essentials can be considered “entrenched,” and (iii) the progressive philosophy of history thus evoked enters a tension with the core of “political liberalism”—Sharon adds a fourth, and in my opinion correct, criticism. As he puts it: “Restrictive and expansive are relative notions––a provision can be restrictive with respect to one thing and expansive relative to another. As there are multiple constitutional essentials, typically quite vague and ineluctably subject to interpretation, it is hard to see how an independent criterion can be fixed here” (p. 15).

Over and beyond these observations about Rawls’s views, Sharon’s insightful commentary on Sovereignty Across Generations goes to the heart of one problematic area.

Let me reformulate his point. The serial view, according to my argument, risks undermining the regulatory function of the constitution by allowing temporal segments of the people—i.e., electorates—to introduce too much variation and to shape the constitution after their political preferences. The sequential view, instead, contains that risk by limiting the amending power of the living citizens in the name of vertical reciprocity. Could it then be claimed—Sharon wonders—that Rawls’s and my own emphasis on constitutional fidelity might bring the defenders of the liberal constitutional essentials to their knees instead of buttressing their case when attacks on rights, religious neutrality, or equality extend over time, are resilient after temporary defeat, and are couched in terms of fidelity to a betrayed past, perhaps antecedent to constitutional codification but still present in the hearts of “people before ‘the people’”? Could it be that Sovereignty Across Generations, instead of putting more sophisticated weapons in the hands of those who combat populism, unilaterally disarms them by prescribing constitutional fidelity—the same value often brandished by populist opponents who don’t portray themselves as “refashioning the country, but forever ‘taking it back’” (p. 19)?

Sharon illustrates his point with reference to the ever-recurring yearning, among Christian nationalists and evangelicals in the United States, to make explicit, indeed re-establish, the originally Christian nature of the United States. Indeed, a survey conducted by the PEW Research Center has found that 45% of the citizens of the United States agree with the proposition that “the U.S. should be a Christian nation,” as it was originally intended to be. In almost every country right-wing conservatives can be found, who struggle to restore “the true, originally intended,” mostly religious, ethos of the founders.⁵ Even the European Union, often described as a bloodless bureaucratic order run by technocrats, has had its share of cultural originalism, represented by conservatives who struggled hard to insert some reference to the “Christian roots of Europe” in the ill-fated Constitutional Treaty, sunk in 2005 by the referendums in France and the Netherlands.

I am not entirely convinced that fidelity to the constitution’s original promise amounts to disarming the liberal democrats. While the reformers described by Sharon may vow to restore the ethos of the founders and to take the country back to its origins, the object of constitutional fidelity for political liberalism is not an ethos (even the founders’ ethos), understood as a (comprehensive) conception of life, a Sittlichkeit, a life-world. The object of constitutional fidelity is “the political project of a people to govern itself in a certain way,”⁶ in accordance with the relevant articles of the constitution, not with the framers’ private intentions or beliefs, even less by the population’s beliefs. In fact, political liberalism incorporates Dworkin’s devastating critique of the “authorial intention” view of the meaning of laws. Thus, when it comes to the First Amendment, the intended project—by all reasonable interpretations of the first clause—is to bar the enactment of any Congress-made “law respecting an establishment of religion.” The existential commitment enshrined in the Constitution, to which fidelity is directed, is to this idea, regardless of widespread beliefs that held sway (and still do) and even found their way into statutes and other laws preventing non-believers from taking office (in Maryland and Arkansas, Mississippi, North Carolina, South Carolina, Tennessee, and Texas). Connecticut was a theocratic state, admitting no freedom of religion until 1818 when it passed a new local constitution.

At the end of his comment, Sharon addresses my point that the temporal extension of the anti-constitutional backlash over several generations—in the most extreme hypothesis, a subversive proposal that curtails the rights secured by the First Amendment and from the Founding until now keeps aggregating the required majority for ratification—changes the equation somehow. Rawls invites us then to face up to the sad reality that in the infamous long run a majority can always find ways to bend the constitution to its will, and I am fully aware of the disheartening message conveyed by this intimation. Sharon rightly asks whether then “political liberalism leaves liberals with insufficient means for warding off such attempts” (p. 19), given that “the enemies of liberal democracies do not always opt for a blitzkrieg” (p. 19), as the half-century-long assault of the religious right against Roe v Wade evidences. Furthermore, concurring with Rawls in acknowledging that doctrines of implicit unamendability, and perhaps even explicit eternity clauses, won’t ultimately “shield a society from democratic backsliding or constitutional erosion,” Sharon voices the concern that instead of providing “weapons to fend off populism, political liberalism might become a form of unilateral disarmament” (p. 20). I take this as a very serious concern, worth considering with all due attention. In the end, however, I am inclined to acknowledge that the Supreme Court reiterated refusal to accept a recurrently, not just one-time, ratified amendment as valid law would amount to a kind of “judicial Jacobinism,” incompatible with political liberalism. Political liberalism can offer perhaps other weapons, linked with the strictures of public reason and a democratic ethos premised on the virtues of civility, reasonableness, and toleration.

Constitutional interpretation as a conversation among whom?

I’m indebted to Roberto Gargarella for very articulate, insightful, thought-provoking comments that address core aspects of a theory of constitutional democracy. Coming from Habermasian critical theory, I highly appreciate critical argumentation. Gargarella raises six important points, that can be grouped into two broad areas: (i) the area of constitutional interpretation, or how the transgenerational people should be represented; (ii) the area that includes the view of democracy undergirding Sovereignty Across Generations, or how the electorate should be represented.

My suggestion to understand constitutional interpretation as a conversation between the collective, transgenerational author of the constitution and those, mostly constitutional judges, entrusted with interpreting its will seems reductive to Gargarella—to be credited for an important work on democracy “as a conversation among equals”⁷ – on two counts. First, it is not an actual conversation (p. 22) and, second, the intended conversation does not include, as advocated by him, “all those potentially affected” (p. 22).

These two objections deserve a preliminary response, before engaging the rest of Gargarella’s comments. The expression “an actual conversation” with people presumably “as they really are” immediately brings to mind the ingenious point made by the great Argentinian author Jorge Luis Borges, when he observed that a map of an empire as large as the empire itself is pointless: one might as well travel the roads of the territory.⁸ Borges’s teaching is that normativity, as opposed to mere description, always requires a reduction of scale. It rests on a process of idealization as fine-grained and context-sensitive as possible, but, like all idealization, reductive nonetheless.

Second, the idea that such a conversation should include “all those potentially affected” seems to me in need of further clarification. In spite of the wide currency that it benefits from in critical theory and other intellectual traditions, I always found that there is, so to speak, “less than meets the eye” in this expression. It seems to blow away all spatial and temporal boundaries in a somewhat problematic way.

First, consider spatial boundaries. We citizens of all countries of the world are undoubtedly affected by the presidential election in the United States, but to claim that therefore we are entitled to co-determine the outcome of that election and that barring us from voting undermines the legitimacy of the election is a long shot. Thus either the principle is false, because legitimate boundaries do after all exist, that justify for someone to be affected by, but unable to influence, a certain outcome; or the principle presupposes that no legitimate boundaries exist and only arbitrarily the world-as-cosmopolis is divided into sub-units. In this case, the principle does hold, but at the cost of becoming totally utopian.

Then consider temporal boundaries. Who is to say when the last effect of a given event has materialized? Maybe the manifestation of certain effects takes longer than the life of the observers and their successors, close or remote. Strictly speaking, we finite human beings can be sure that the last effect has taken place only when there is no longer a subsequent instant: literally, at the end of time. Thus the all-affected principle, if taken in a strict sense, becomes a metaphor for the Last Judgment, which takes place when nothing else can ever happen.

Finally, a third difficulty lurks in this perhaps overrated expression. How do we establish who is “potentially affected”? If this is considered a matter for an impartial observer to establish, where is such an observer located, from which objectivity-guaranteeing podium does she speak? And if to avoid this difficulty, we leave it up to the participants to determine by themselves if they are affected, what would then be the difference between “being potentially affected” and “believing to be potentially affected”? Absent that distinction, the all-affected principle may result in an unfair premium on the participants’ self-serving “perceived vulnerability.”

These implications make me somewhat wary of this principle and especially of attributing pride of place to it. For this reason, I understand constitutional interpretation as a conversation between the author and the interpreter of the constitution on the smaller scale questioned by Gargarella: namely, as a spatially and temporally bounded debate among the free and equal citizens of one polity, the living citizens participating directly or via their elected representatives, the no longer and not yet living ones represented by some institution.

Which institution? There are many institutions other than a court that could represent the whole transgenerational people: Rousseau’s rethinking of the Roman tribunate is one example, a permanent constitutional assembly, a third chamber, Schmitt's idea of the president of the Weimar Republic, and new ones could be envisaged. This is a topic for a book of its own, which was not my intention to write. Thus I followed the mainstream opinion and the historical reality that such function has for better or for worse usually been assigned to a special judicial court, but my theses apply to whichever institution takes on the mandate of adjudicating whether the will of the voters is consistent with the will of the people, and I remain open to other suggestions, my account being in no way wedded to the judicial variant.

Keeping the function of constitutional adjudication distinct from its execution

Having clarified this point about the nature of constitutional interpretation and its institutional implementation, let me respond to Gargarella’s point that judges too “have (political, personal) interests that may run against those of the ‘intergenerational people’” (p. 25), are not immune to self-serving conduct, and disagree no less than politicians about the interests of “the people.” Here I’m addressing also Iddo Porat’s suggestion that judicial review may be neither the only nor the best way of reconciling the long-term commitments inscribed in the constitution and the shifting will of the voters. The U.K., the Commonwealth countries, and others, including Israel until 1995, have done well without judicial review (regardless of whether they have bicameralism). Just as an aside, I do not think that bicameralism is per se a decisive moderating factor: it becomes one only in combination with an electoral law capable of producing significantly different results in the two chambers. Absent that, passing legislation in both is just a technical hurdle, not a really significant political challenge. Porat converges with Gargarella also in attributing to me an over-optimistic perception of judges as less entangled in mundane interest, private or collective as a group, relative to elected representatives. The latter too may be animated by Montesquieuian-Rousseauian virtue and a Burkean spirit, so the distinction between judges and politicians, concludes Porat, “may be more of degree than of kind” (p. 7).

My response to this group of objections rests on one single move: to distinguish as sharply as possible the function of checking whether the will of the voters is consistent, albeit not identical, with the will of the people,⁹ from the execution of the function. Mixing these two levels generates problematic consequences. Let me cast my response first in the form of a plea to an imaginary populist voter (of Salvini, Le Pen, or Orbàn), to whom our arguments ultimately must make sense:

Dear voter,

you surely watch TV in your spare time and may enjoy watching soccer games. How would you respond to a coach who pleaded for excusing a hand foul committed by one of his players by suggesting to introduce a new rule that allows for that act, and a vote on the new rule should be taken here and now in the stadium (where most fans cheer his team)? You would denounce him as a crook, and remind him that rules can indeed be changed, as it has already happened in the past, but only when no game is going on and with the concurrence of all the stakeholders…

Now imagine that a foul has allegedly been committed, but the players of the two teams disagree on whether it really occurred. You surely concur that the decision on the foul, and its proper sanction, cannot be left to the players, with the support of their fans from the tiers, or for the coaches to negotiate. You surely understand that for that decision to be fairly made a referee or a team thereof is needed, whose judgment will, for the time being, conclusively and bindingly determine how the game should continue. We need the function of impartially adjudicating whether the rules have been followed.

Then this indispensable function of refereeing can be executed more or less adequately. Some referees may be at the top or the bottom of some scale of competence, there may be corrupt referees, incompetent ones, and biased referees that privilege their favorite teams. But this variety of referees’ shortcomings won’t detract from the sensibleness of having someone impartial in charge of the refereeing function—any more than car theft detracts from the sensibleness of property-protecting laws. Can’t you see that the same reasoning applies to the function of determining whether the will of the majority in matters of legislation or administration is consistent with the rules of the political game inscribed in the constitution?

I assume then that we are not debating the legitimacy of judicial review as a function, though we can reasonably disagree about its imperative or weaker form, over its possibly remaining open to legislative override under certain conditions. We are debating which institutional figure is best positioned to carry it out. Certainly, justices are no more immune to bias, corruption, self-interest, and partisanship, than referees. This is unfortunate, but it is not a reason to erase the function that both—referees and justices––are playing. To be sure, as Porat reminds us (p. 7), politicians responsive to the general interest may play the function of representing the transgenerational people better than ideological judges. I fully accept that remark. But consider that a politician, even a leader, a head of government, is not required to represent the transgenerational people, as signaled by the selective attribution of a special term of praise—statesmen, statespersons we should say—to those few who reach that top. That capacity to reconstruct “the will of the people” from interpreting the constitution is instead part of the normal mandate of a supreme justice. No special term of praise is attached to the exercise of that capacity, which reflects the required norm. Failing to achieve that level spells the mediocrity of a political leader, but spells something way below mediocrity, something blameworthy, for a justice. That diverse appraisal of the politician’s and the justice’s conduct signals a difference in our perception of what it means to represent the voters and to represent the people. Moving back for a moment to our plea addressed to a Salvini or Le Pen voter and to the simile of the soccer game, we could continue our plea in the following way:

Dear voter,

You surely understand the difference. The mandate of a coach is to lead his team to win and come on top in the championship, and if he does so while also obtaining from his players the fair play that ennobles the game, so much the better. That mandate cannot be the same as that of a referee, for whom safeguarding fair play is a must, not an extra. Then again, on the ground we may observe coaches who are more impartial, more fair players than certain referees, but that empirical possibility constitutes no basis for reshuffling the diverse functions that they should respectively exercise.

In the same vein—to address here a point raised by Iddo Porat above (p. 3)—the existence of democracies that flourish without judicial review, even if a kind of backtracking of sorts is underway in this respect, counts then as counterevidence against the presumed indispensability of a certain way of executing the function of reconciling the voters’ short-term political will and the people’s long-term commitments, perhaps even against entrusting that function to certain classes of actors, but certainly not against the function per se. We may then wonder what functional equivalent could have helped those democratic countries to flourish without adopting judicial review. That functional equivalent could, in my opinion, consist of a strongly shared political culture, more easily outlined on a suggestively intuitive basis than explained on the basis of abstract constitutional principles, not differently from Oakeshott’s description of conservatism as a mentality rather than as a set of principles. In Oakeshott’s words:

To be conservative, then, is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss. Familiar relationships and loyalties will be preferred to the allure of more profitable attachments; to acquire and to enlarge will be less important than to keep, to cultivate, and to enjoy; the grief of loss will be more acute than the excitement of novelty or promise.¹⁰

Having a written constitution and a profession populated by interpreters and guardians of constitutional principles is, from the point of view articulated by Oakeshott, continental rationalism—exemplified by the German and French fascination for ideas and utopias. Perhaps a shared form of life, in Wittgestein’s sense, may prove capable of generating a politics of piecemeal reforms or basic laws, what Ackerman calls “establishmentarian” constitutionalism.¹¹ I don’t have enough historical expertise to tell why this establishmentarian model has influenced Israel so much, and not India, the home to a very assertive Supreme Court that formulated the theory of the unamendable basic structure.

Over and beyond these questions of principle about judicial review and its function to protect the will of the people from the possible erosion by the will of the voters, an important set of issues concerns the institutional aspects of judicial review: what are the best rules for appointing judges and avoiding the politicization of the selection process? how long should the length of their tenure last? Does the well-meaning institution of the “docket” (created only in the 1920s to make the number of cases to be examined by the Supreme Court more manageable), let alone the “shadow docket,”¹² stand in the way of impartiality? Does it open a pathway for political consideration to interfere with adjudication? Is legal training a necessary pre-requisite for interpreting “the will of the people”? These important issues cannot be addressed here, but it’s worth noting that they remind us of the main point of our simile: the institutional design of judicial review concerns the conditions most likely to enhance or impair the quality of the referees—a crucial endeavor for constitutional democracy. But before addressing them we still have before us the task of convincing the populist (and the “political constitutionalist”) that from the undeniable circumstance that in the real world bad referees are found, and coaches more impartial than referees, one cannot infer that the function of refereeing is superfluous.

Sequential sovereignty and deliberative democracy

Another batch of objections raised by Gargarella concerns the view of democracy that in his opinion undergirds Sovereignty Across Generations. Indebted to an “obsolete political sociology” (p. 24), “prevalent 200 years ago” (p. 25), according to which “the few different groups that constitute society have, in addition, homogenous interests” (p. 24), my view of democracy comes out as a Schumpeterian “electing or removing the representative” (p. 24), oblivious to all forms of deliberation, participation and ongoing dialogue with our representatives. Ultimately, it is a view of democracy “not prepared or eager to focus on the daily life of democracy—on the everyday connection that should exist between the electors and the elected” (p. 24). I’m encouraged by Gargarella to take notice that since the early 1990s, Rawls has distanced from such mainstream liberal views of democracy—one may think of Robert Dahl, perhaps even Schumpeter, for relevant representatives—and has enlisted among the proponents of deliberative democracy.

I regard myself as a deliberative democrat, schooled in the Habermasian reflection of the 1980s that eventually led to Between Facts and Norms, later as an attentive reader and translator of the famous Rawls-Habermas exchange in the Journal of Philosophy, and over the last two decades as an interpreter of Political Liberalism. Rawls and Habermas are the key figures that have propelled deliberative democracy—which in the 1980s was a burgeoning research program, barely distinguishable from “participatory democracy” – to the cutting edge of political philosophy. Both of them emphasize the reflective, epistemically informed, dialogical, civility-bound aspects of deliberation, over the features of mobilization, involvement, and participation, present not only in democratic but also in authoritarian contexts. Thus, far be it from me to think that democracy consists of voting and elections. There is no need to resort to sophisticated theories in order to show the total meaninglessness of that view of democracy. It suffices to mention the empirical fact that at present only 3 out of 195 states in the world lack elections (ie China, Saudi Arabia, and Brunei), in order to show the tenuousness of the relation of democracy to elections. Much as we would rejoice at the news, surely there aren’t 192 democracies on the planet. Thus, there is more to democracy than electing representatives.

However, I learned from Bruce Ackerman—an important mentoring figure that Roberto Gargarella and I share in common—that participatory effervescence and mobilization need not be the norm, within societies modeled after democratic dualism. We can expect vibrant participation, on the part of the citizenry, only at exceptional junctures called “constitutional moments” by Ackerman, when sectors of the citizenry manage to signal that a constitutional problem exists and awaits a solution. There are only so many such constitutional moments in the history of a polity. During “normal times,” the active, debating, mobilized citizen yields to a non-oxymoronic “private citizen” (also discussed by Tocqueville) who concerns herself primarily with family, career, consumption, leisure, socializing, and other private ends. There is nothing pathological in this irenic democratic life unless one embraces a “comprehensive” extolment of “vita activa” as an intrinsically superior form of life, a proposition that I find hard to reconcile with political liberalism. If so, then I believe it makes sense to tailor our notions of democracy, deliberation, and constitutional dialogue to the normal phase of a dualist democracy, and not primarily (or worse, exclusively) to the high-gear mobilization typical of the rare constitutional moments.

Finally, Gargarella worries that sequential views of democratic sovereignty, premised on strong forms of judicial review, could be twisted by populist leaders—Trump, Erdogan, or Orbàn—to their advantage. Packed courts can invalidate democratic legislation “in the name of the ‘superior’ interests of the nation” (p. 29). Populist leaders can “refer to the interests of the ‘real (transgenerational) people’ invoke the abstract values of the Constitution, to impose (what are, in fact) their own views of a certain subject, against the will of the living-electors” (p. 29). Evo Morales, seeking illegally a fourth mandate, provided a perfect example. Other cases could be mentioned.

I see here a factual, political challenge, for which we'd better excogitate effective antidotes, but no serious theoretical challenge for the sequential view of democratic sovereignty: again, corrupt judges and colluding courts exist just as corrupt or biased referees in soccer. They cause enormous damage, and they betray their mandate, but they do not challenge the normative fabric of that mandate, any more than car-stealing challenges the legitimacy of property-protecting laws.

Conclusion

The areas of concern addressed by Iddo Porat, Assaf Sharon, and Roberto Gargarella—how affective polarization affects judicial review; the risk that emphasis on constitutional fidelity might favor, rather than protect democracy from, conservative or outright reactionary appeals to ethnical originalism or exceptionalism; the difficulty of outlining a proper understanding of constitutional adjudication as a discursive practice and of assessing the possible forms of its institutional implementation; doing justice to the participatory moment within a viable constitutional democracy—are very much at the center of all contemporary debates on constitutionalism and democracy. Certainly, the conversation will continue. I hope that Sovereignty Across Generations might contribute to that conversation a sense of the enduring relevance of the paradigm of political liberalism as well as of the urgency and worthiness of updating its core tenets in order to better meet the challenges facing democracy today. No other paradigm in contemporary political philosophy, and in constitutional theory, offers a better insight into what is required for a society of free and equal, yet very differently-minded, citizens to remain free of oppression.

Footnotes