‘A link in an intergenerational chain’: Sovereignty and justice in Ferrara’s sovereignty across generations

Legitimacy, serial sovereignty and populism

The principal contribution of Ferrara’s book is the titular ‘sovereignty across generations’ – or ‘sequential’ sovereignty. Although he takes it in a new direction, Ferrara’s argument begins with a relatively uncontroversial idea of modern political and legal theory: ‘the people’ as a foundational concept of democracy. For a regime to be legitimate democratically, its laws and policies must ultimately be attributable to ‘the people’. Popular sovereignty means that ‘the people’ has the right and the power to change its laws to reflect its will and values, including even rewriting constitutional essentials.

Building on this foundation, many today understand sovereignty in ‘serial’ or proprietary terms. They conceive of each generation as if it were a discrete bearer of popular sovereignty, which may use democratic legal procedures to rewrite its laws and even its constitution however it sees fit (209ff.). Popular sovereignty is analogized to the kind of license to dispose of one’s private property at will. If a present generation, the electorate, is ‘the people’, then it must have the right to exercise constituent power. Or, to continue with the analogy, the electorate ‘owns’ popular sovereignty and may revise the law as it desires.

However, by equating the electorate and ‘the people’, this serial conception of sovereignty inadvertently paves the way for the very democratic backsliding by populists and other antidemocrats that we see happening around the world today (63ff). If they have sufficient support from the electorate, antidemocratic populist movements appear to have a valid claim to own and exercise ‘the people’s’ constituent power. They abuse that power to advance partisan self-interest, rendering their democracy ‘wanton’, ‘indistinct’ and ‘underdetermined’ along the way (211–216): The power to radically change the constitution risks reducing public order to the immediate will of the present electorate. It risks disrupting any principled continuity in the identity of ‘the people’, thereby devolving its identity into a mere ethnos. And it risks robbing future generations of their democratic identity entirely, were a present generation willing to crown a demagogue promising them a return to ‘greatness’ in exchange for democratic freedom.

Sequential sovereignty: The temporalized ‘people’

While antidemocrats require a multifaceted response, Ferrara shows that one crucial element of that response requires rethinking the meaning of popular sovereignty and what powers ought to be invested in the electorate. Ferrara criticizes and ultimately rejects the idea of serial sovereignty. ‘The people’, he argues, does not exist as a series of discrete generational segments. Instead, it extends temporally into both the past and the future. Sovereignty is not serial but ‘sequential’: each generation is linked both to its predecessors and successors in one continuous chain (249).

Conceiving of popular sovereignty sequentially complicates the above analogy with property ownership. Although a present generation remains a property owner in a sense, that role is complemented by another role, akin to stewardship. The temporalized ‘people’ is irreducible to any single generation. It is only a fraction of that ‘people’ – a very small fraction even. A present generation thus is not and does not own the identity of ‘the people’. Instead, in its role as steward, a present generation has been invested by past generations with a fiduciary duty to manage, protect and enhance it for future generations. That duty is to uphold ‘the people’s’ fundamental identity over time (103ff.).

Moreover, because the present electorate is not identical with ‘the people’, and because of that fiduciary duty, the electorate does not have a valid claim to exercise ‘the people’s’ constituent power (260ff., 276). At least not unilaterally. The electorate is a constituted power. As such, normatively speaking, its power is derivative and conservative rather than original and creative. There are normative limits to what the electorate can do.

A vital element uniting every generation into a single democratic ‘people’ is their common commitment to democracy (130ff., 201). Yet democratic ‘peoples’ live in a pluriverse: besides that commitment to democracy, every individual ‘people’ will also be constituted by other norms, which it feels embodies its distinct, authentic constitutional identity (163).

Temporalizing ‘the people’, and denying the simple identity between ‘the people’ and the electorate returns Ferrara to the above question of democratic legitimacy: if laws and policies must be attributable to ‘the people’ and only a fraction of ‘the people’ currently lives, how can we know what that identity of ‘the people’ really is? How can we be sure ‘the people’ has in fact willed a particular state of affairs? Or how can we be sure that a ‘people’ does not will to abrogate its existing constitution and replace it with something radically different?

Reciprocity and legitimate constitutional change

Ferrara’s answer to that question is inspired by Rawls’ political liberalism. It provides a non-foundationalist normative theory that nevertheless fixes democratic constitutional essentials (30). ² Ferrara builds on Rawls’ well-known idea of ‘reciprocity’, temporalizing Rawls’ arguments and conceptualizing what he calls ‘vertical reciprocity’. Vertical reciprocity provides the normative basis to bind a present generation to its predecessors’ decision to commit to democracy and to succeeding generations’ right to enjoy the benefits of a just democratic society.

Although Rawls himself did not theorize vertical reciprocity, Ferrara shows how it flows naturally from Rawls’ principles of reasonability and reciprocity, themselves rooted in a thought experiment (4, 13). A reasonable person, acknowledging the fact of pluralism and the desirability of a stable well-ordered society, will seek terms of cooperation that other free, equal and reasonable people would in principle accept. Reciprocity is about free and equal members reaching a compromise on fundamentals of public order that all could reasonably accept as fair terms of cooperation (134ff.). Concretely, those fundamentals amount to Rawls’ two liberal principles: all members should have the same basic liberties (basic liberal rights) as well as fair equality of opportunity, although the latter must allow for unequal measures that benefit the least advantaged. This duty of reciprocity grounds Rawls’ normative project.

Ferrara simply extends that duty of reciprocity ‘vertically’: different generations owe the same duty to respect one another’s freedom and equality (274). In other words, insofar as we accept Rawls’ argument intra-generationally (horizontally), should we not also accept that it applies inter-generationally (vertically)? Should not the laws and policies that members of one generation grant to one another also be desirable and reasonable for free and equals of other generations? Ferrara answers both questions affirmatively, concluding that a present generation cannot introduce changes that would make its public order ‘putatively less than reasonable’ for future generations (13).

With vertical reciprocity, Ferrara has developed a powerful normative tool for addressing a concern that has been at the forefront of many people’s minds for decades now: what do we owe the future? Although Ferrara focuses on using this tool to defend democracy, vertical reciprocity may also offer insights into other temporal normative issues, such as climate change, sustainable development and public debt.

Institutionally, vertical reciprocity requires restricting and limiting constitutional change when it comes to those basic terms of cooperation (60–61). Ferrara accordingly argues for what he calls ‘the Liberal Principle of Amending Legitimacy’: constitutional change is legitimate only when it respects the principles that reasonable citizens would accept and is compatible with vertical reciprocity across every generation of a democratic ‘people’ (280–282). In short, democratic constitutional essentials are implicitly unamendable; to change them would be to infringe on what is dictated by fair terms of cooperation (272–275).

Diverse representations of ‘the people’

Ferrara’s move to temporalize ‘the people’ carries an important and understated corollary: ‘the people’ is plural both horizontally and vertically. If we are to respect the fact of pluralism along these two dimensions, liberal democracy is all the more essential. Constitutional essentials must be defended, in particular against the arbitrary and potentially tyrannical exercise of state power that would threaten such pluralism. A true liberal, Ferrara seems to recognize the urgency of defending individual rights against tyranny in any of its forms – including a tyrannical majority. Indeed, popular illiberal zealotry threatens the rights of future generations vertically just as it threatens those of present minorities horizontally. Although he does not put it exactly in these terms, to defend democracy Ferrara returns to one of liberalism’s oldest defences against tyranny: the separation, division and balance of state power.

Within that division of power, the electorate remains a critical representative of ‘the people’. Its active participation is essential for any democracy. Accordingly, every individual member must be accorded basic rights and be empowered to participate in majoritarian procedures.

But the electorate tends to overrepresent its own immediate interests. What about all those other ways of representing ‘the people’, which better include its other generations? If only the interests of the present generation are expressed institutionally, then the interests of other generations, past and future, may go unheard and unrepresented – particularly their interest in freedom and equality being reciprocated over time. As popular antidemocratic movements have demonstrated time and time again, the electorate cannot be uncritically relied on to represent that commitment to democracy. To grant unchecked authority to any single constituted power would be foolish.

Temporalizing the people and projecting it into an in principle infinite future, as Ferrara does, protects ‘the people’ against such vertical abuses just as the separation of powers does so horizontally. It seems to reveal that ‘the people’ is really only a regulative ideal, governing value-neutral democratic procedures. Perhaps it is best thought of as a juristic fiction. In any case, for Ferrara, ‘the people’ has neither material reality nor agency (249). It can only ever be represented. And his conceptual move underscores that the electorate offers just one way of representing ‘the people’.

Because it has a rather different motivational set, the constitutional court represents ’the people’ differently than the electorate. Assuming a well-designed democratic constitution, the constitutional court’s conservatism may make it a better steward of the interests of other generations of ‘the people’ in creating and upholding a democratic society (203ff.). And by serving as a check on the power of the present generation, the court’s complementary representation of ‘the people’ helps to ensure that the public order continues to realize liberal constitutional essentials owed to its future generations (206–210).

Establishing separate and counterbalancing representatives of ‘the people’ decreases the likelihood that one representative will become a tyrant horizontally or vertically. It decreases the likelihood that ‘the people’s’ constituent power will be invoked illegitimately to overturn a stable and just democratic order. It thereby increases the likelihood that a democratic society will survive and develop over time.

Ferrara’s theory thus provides the following answers to the questions above: Reciprocity, along both its horizontal and vertical dimensions, is a constitutive value of the identity of any democratic ‘people’. It must be defended. And we can be more sure that ‘the people has willed a particular state of affairs when its diverse representatives, the electorate and the constitutional courts, reach a consensus on what its commitment to basic liberal rights and other democratic essentials actually means.

Further implications of sequential sovereignty

Ferrara’s Sovereignty across Generation draws out additional implications of Rawls’ project of political liberalism, the most important of which is that reciprocity also extends vertically. This is a vital step forward in overcoming the most pressing challenge to democracy’s future since totalitarianism. In that regard, Sovereignty across Generation is an incredible success. I believe that Ferrara’s argument has further implications, which Ferrara himself does not fully draw out. Those implications are not only consistent with his underlying theory, they better equip it to address this challenge. In the remainder of this essay, I discuss the two most significant of those implications: unamendability and ‘containment’.

Limits to implicit unamendability

As I describe above, Ferrara concludes that vertical reciprocity leads to the implicit unamendability of constitutional essentials. However, it is not clear why reciprocity generates specifically implicit unamendability. Neither it is clear that implicit unamendability best guarantees the interest of the transgenerational ‘people’ in a democracy.

A principal shortcoming of implicit unamendability is that it allows two distinct normative orders, legality and legitimacy, to sit in opposition to one another. How exactly is this?

On the one hand, as Ferrara rightly argues, reciprocity holds that certain constitutional norms are so vital that no state could be described as ‘democratic’ without them. Insofar as the transgenerational ‘people’s’ basic commitment is to its democratic identity, then those norms define the terms of political legitimacy. They cannot be amended legitimately.

Yet, on the other hand, if unamendability is left merely implicit, then the amendment clause remains the supreme clause of the constitution (otherwise, unamendability would be explicit rather than implicit). When unamendability is merely implicit and the amendment clause is supreme, any law may be revised or even abrogated legally. Even the most basic constitutional law sits under the reservation of the exercise of the amendment clause. The electorate thus retains the legal power to use the amendment clause and amend or abrogate any aspect of its constitution – including democratic constitutional essentials. It seems to legally retain control over the exercise of constituent power, even as we recognize it does not have a legitimate claim to that power.

Under implicit unamendability, there are no legal barriers to prevent the electorate from amending democracy out of the constitution entirely – or anything else for that matter. In fact, the law expressly allows for that possibility. Thus the door is left open legally for the electorate to cannibalize its constitution – even if on a different normative level it would be illegitimate for the electorate to do so.

Implicit unamendability thus inadvertently sows the seeds for a constitutional crisis by setting those two normative orders, legitimacy and legality, in opposition: the constitutional essentials vertical reciprocity generates and value-neutral majoritarian legal procedures.

To complicate matters further, legality is itself a kind of normative order. It bestows legitimacy on its outputs. That legitimacy is of course different from the legitimacy generated by reciprocity. Yet value-neutral majoritarian legal procedures – ‘democracy’, in a minimalistic sense – have a legitimating effect. ³ Otherwise, few would believe that democratic elections generate a right to rule and legislate. The problem is there is no necessary relationship between norms generated by reciprocity and norms generated by value-neutral procedures – as antidemocratic populists repeatedly demonstrate.

When decoupled from positive law, the implicitly unamendable democratic norms generated by reciprocity also suffer another problem. They are nowhere enacted explicitly through positive statutes, so in a sense they are immaterial. Implicit unamendability thus relies on a kind of constitutional dualism, in which super-legal constitutional norms hold normative priority over positively enacted articles of the constitution. Because those super-legal principles may not be anywhere in the written constitution, it falls to whoever has final authority over constitutionality – the judges on the constitutional court in Ferrara’s account – to decide on and articulate them. The problem is that, without an external reference point in a binding legal document like a constitution, that authority to decide on constitutional norms is unchecked. It can be exercised arbitrarily. Were that authority to be colonized by antidemocrats – a standard tactic of theirs – it could be abused to redecide what super-legal norms define the identity of ‘the people’. It could for example fabricate and assert the existence of superseding super-legal norms that have nothing to do with democracy, like a right to own heavy assault weapons. Or it could excise genuinely essential norms of democracy, such as religious liberty or due process.

The colonization of the constitutional court also highlights how focussing on antidemocratic legislation alone will not solve the problem of democratic backsliding. Democrats must address the problem of antidemocrats too because they can threaten democracy without altering the constitution – which I return to below in the discussion of containment.

In sum, the opposition between those two normative orders, and that the more essential ‘super-legal’ norms are nowhere positively identified or fixed, can create confusion about what is actually democratically essential. It can signal that change to constitutional essentials both is and is not democratic. And it creates space for constitutional authorities to reinterpret the merely implicit democratic norms in bad faith and in antidemocratic ways. Antidemocrats exploit the disharmony between legality and legitimacy to advance their political goals. They can argue that the pursuit of their political goals is, in fact, ‘democratic’ – which a claim that may seem reasonable if one believes value-neutral proceduralism is the last word on democratic legitimacy. The problem of implicit unamendability is, in short, that it allows antidemocrats to persuade others of the democratic bona fides of their goals.

Explicit unamendability

Ferrara’s Sovereignty across Generations argues that the identity and interests of the transgenerational ‘people’, established through reciprocal consensus with others – be it individuals (horizontally) or generations – lies in securing its commitment to freedom and equality. Although Ferrara defends implicit unamendability, reciprocity is better entrenched through positive constitutional law, using an eternity clause or a similar mechanism. That is, explicit unamendability provides a more robust guarantee of democracy and by extension the identity and interests of ‘the people’.

Explicitly unamendability clearly signals democracy’s fundamental values, removing ambiguity about what is on and off the political agenda. The constitutional essentials derived from reciprocity are clearly laid out, positively enacted and entrenched for all to see. This positive enactment ensures that these essentials legally supersede outputs from value-neutral majoritarian processes. By codifying which issues are off the legislative agenda and therefore not open for political contestation, explicit unamendability clarifies the essence of democracy and the identity of ‘the people’.

Furthermore, explicitly unamendability overcomes the above-described limitations by aligning legality and legitimacy on essential constitutional norms. When constitutional essentials are both positively enacted and locked in through an eternity clause, they do not sit under the reservation of the exercise of the amendment clause. There is no valid procedure to amend or abrogate those foundational principles of the constitution. Unlike implicit unamendability, explicitly unamendability reinforces democracy’s super-legal constitutive principles through positive law.

By aligning legality and legitimacy, explicit unamendability better checks the ambitions of populists and other antidemocrats – putting them on their backfoot. Without the dissonance between legality against legitimacy, they cannot exploit procedural validity to claim that antidemocratic agendas are somehow ‘democratic’ because a majority or supermajority of the electorate has endorsed it. Explicit unamendability thus denies them a constitutional foundation for such goals, forcing them to oppose both normative orders, legality and legitimacy, thereby facing additional headwinds in advancing their political agenda.

Explicitly unamendability also offers the advantage of limiting judicial discretion regarding which articles are essential and unamendable. Because the core set of democratic essentials is positively established in the written constitution, there are no grounds to argue, for example, that religious liberty or due process are inessential to democracy. This clarity minimizes the risk of judicial overreach through redeciding constitutionally essentials.

Critics may of course argue that interpretative authority inherently affords creative discretion. Where there are legitimate concerns about excessive latitude in interpretation (I believe these can be addressed, though I will not do so here), equating interpretation with creation ex nihilo is an overstatement. The authority to interpret a fixed, written text is categorically different from the authority to decide among unwritten or even unstated values. A textual anchor, as established by explicit unamendability, constrains constitutional authority, limiting it to the interpretation of words whose meanings, while potentially having a penumbra, are not totally indeterminate. Explicit unamendability thus leaves significantly less latitude and arbitrary power to constitutional courts, reducing the risk that colonizing the judiciary, for example, could lead to an antidemocratic legal revolution.

In conclusion, explicit unamendability more effectively guarantees the democratic commitment to freedom and equality, central to the identity of the transgenerational ‘people’. By clearly and concretely entrenching democratic constitutional essentials in positive law, it aligns legality with legitimacy, reduces ambiguities and limits judicial discretion, thereby giving democracy a more secure foundation.

Containment

A form of entrenchment complementing unamendability is what both Rawls and Ferrara call ‘containment’. The term seems to originate in Cold War political science, describing the control or prevention of the spread of ideologies hostile to democracy such as totalitarianism. Rawls argued that containing antidemocratic ideas and ‘unreasonable’ doctrines was as imperative as containing other threats to the democratic public, like war and disease. ⁴

Although Rawls’ normative theory clearly supports the concept of containment and implies restricting fundamental rights somehow, he never fully analysed the concept. He left unstated which rights might be contained, how to contain them and which ideas or actors might warrant containment. Rawls seemed reluctant to elaborate much further, suggesting elsewhere that the legitimacy and use of containment was a ‘practical dilemma’ beyond the scope of philosophy to assess. ⁵

One gets the sense that Ferrara feels the same way. Although he briefly touches on the concept in Sovereignty across Generations, he concludes that it is not ‘the first choice’ for responding to supporters of ‘unreasonable’ doctrines. He then suggests that a ‘reshuffling’ of the binary of reasonable and unreasonable so that fewer members might qualify for containment (119).

However, this approach may inadvertently shift the focus from the central issue: what can democrats do if a present generation uses democratic procedures to abrogate constitutional essentials, denying future generations the freedoms it presently enjoys? If antidemocrats bent on revolutionizing democratic constitutional essentials – whether for racial or religious purity, as pursued by the BJP, the AfD or Trump – are deemed neither ‘unreasonable’ nor worthy of ‘containment’ as a threat to the democratic public, then both concepts seem to lose meaning.

While containment may not be the first choice for responding to ‘unreasonable’ doctrines and actors, Ferrara does not rule it out altogether either. In fact, there are compelling reasons for democrats to see containment as a necessary and democratically legitimate response to threats such as antidemocratic movements.

Although unamendability can halt direct attacks on the written constitution, it does not address every path antidemocrats can take to realize their political goals. If antidemocrats successfully colonize multiple branches of government, for example, they can undermine a democracy without amending the constitution at all. They can realize their antidemocratic goals through ordinary legislation, strategic appointment of loyalists and engineering constitutionally abusive fait accomplis. None of these paths to undermining democracy requires constitutional change.

Focussing solely on preventing antidemocratic legislation while allowing antidemocrats to compete for and hold public office, may fail to defend democracy. Recent cases of democratic backsliding illustrate this: while some antidemocrats, such as Fidesz, have successfully pursued their goals through constitutional revolution, others, such as the PiS in Poland and Trump in the United States, have done so indirectly, realizing their goals without amending the constitution itself. Recent history demonstrates that unamendability alone may not guarantee democracy across generations.

Denying antidemocrats the right to hold public office complements the protective function of unamendability, providing a defence against both antidemocratic laws and actors. Containment denies antidemocrats the legal possession of state power altogether, thereby limiting their ability to damage democracy below the level of constitutional change. In addition, containment can pre-empt the spread of antidemocratic ideology by excluding it from the public sphere, signalling what is consonant with democracy and what is not. By limiting the political influence and operational capacity of antidemocratic actors, containment reinforces the entrenchment function of unamendability.

Containment is a critical measure for guaranteeing the identity of the transgenerational people over time and ensuring that a present generation reciprocates to future generations the rights, freedoms and equality that it has enjoyed. Only by confronting the matter of containment head on, can democrats assess its legitimate role in upholding democratic public order.

Democracy across generations

In Sovereignty Across Generations, Ferrara offers a profound and timely defence of democracy that builds on Rawls’ liberalism to confront challenges posed by populism and democratic backsliding. Ferrara’s theory of sequential sovereignty and concept of vertical reciprocity is a signal achievement in political and legal philosophy. They provide a compelling conceptual apparatus for understanding the transgenerational obligations of a democratic ‘people’, underscoring the importance of upholding democratic constitutional essentials across time.

However, as important as Ferrara’s work is, two critical areas deserve further development: unamendability and containment. As I have discussed, Ferrara's defence of implicit unamendability risks dissonance between legality and legitimacy, which antidemocrats may exploit. Explicit unamendability, by contrast, offers a more secure foundation for democracy by clearly aligning legal procedures with normative commitments, reducing ambiguity and limiting judicial discretion. Similarly, Ferrara overlooks the role of containment. Even without constitutional amendment, antidemocrats successfully threaten and backslide democracy. Containment thus serves as a necessary complement to unamendability and a vital safeguard of democracy.

In conclusion, Ferrara’s work represents a substantial advancement in democratic theory. Incorporating explicit unamendability and containment into his theory of sequential sovereignty would further strengthen it and more effectively guarantee the perseverance of democracy across generations.