Rawls’s hypothetical model brings a substantive limitation to the quest for political autonomy. Consequently, as the Rawlsian “veil of ignorance” is raised step by step, citizens “find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control.”31 There is a sense in which models of hypothetical agreement are inherently prone to compromise the promise of political autonomy.
Finally, in the contemporary world, hypothetical conceptions of popular sovereignty face the further challenge of pluralism. In an age of cultural diversity and struggles for recognition, the counterfactual picture of “the people” speaking in a single voice has increasingly come in for criticism as a hegemonic vision of political community, one which is imposed on a diverse population. Accordingly, statements in the name of “we the people” are claimed to be inherently difference-blind, to ignore diversity and heterogeneity, while at the same time fostering partial interests, particular conceptions of the good and dominant ways of life under the guise of cherished democratic ideals. Of course, this is not to say that the people don’t speak. The point of the matter is rather that they speak in a plurality of voices—and crucially, everyone wants to be heard in her own voice.
This poses a pressing problem for contemporary democratic theory. If there is no “we the people” speaking in a unified voice, or if the voice of the people is more like a cacophony than a symphony, then what do we make of constitutional claims of popular sovereignty? Or, to put it differently, how can we account for the democratic legitimacy of a new constitution if there is no privileged and uncontestable vantage point from which to discern the supposedly “real voice” of the people? Simone Chambers sums up the problem succinctly: “on the one hand, we need a ‘people’ to be able to speak as one to fulfill the voluntarist aspirations of modern constitutionalism; on the other hand, creating a ‘people’ through assimilation and verbal fiat now appears to violate the very same democratic or voluntarist aspirations.”32
The Normative and Experiential Significance of Founding Moments
Thus far, using Kant’s argument about the “original contract” as the foil of discussion, I have looked at some contemporary objections to the hypothetical conception of popular sovereignty. It is now time to ask what follows from these objections. One important conclusion I want to draw is that the inclusion of the “people themselves”—that is, the people in their diversity and plurality, as well as in their embodiment and their empirical singularity—in the constitution-making process is essential to the democratic legitimacy of a new constitution. We live in a world where the abstract picture of a united people speaking in one voice has been irrevocably fragmented, where arguments about what everyone would agree to if they were rational and acting on good will turn out to be deeply controversial, and where democratic legitimacy can no longer be categorically severed from actual democratic agency. This point has a further corollary, which is of particular importance for our present purposes: the distinction between “origins” and “foundations” cannot remain intact under such circumstances. We can no longer draw a sharp line between the pedigree of a democratic constitution and its substantive content, between the way a political community happens to be established and the principles that it claims to rest on. To redeem their democratic credentials, in other words, constitutional claims of popular sovereignty must have a strong foothold in what the people themselves actually have to say in their own voices on the forms and principles of their own political organization.
To avoid misunderstanding, nothing I say here is meant to suggest that inclusion or participation is a magic stick in and of itself. The quest for a genuinely democratic act of constitution-making—in the sense of an inclusive and participatory exercise of popular sovereignty—is subject to conceptual paradoxes and practical limitations, as we will see in the following chapters. Nor do I suggest that the authorship of the constitution is or must be taken as the sole criterion that determines its legitimacy. Obviously, such an approach to the question of constitutional legitimacy, stressing the importance of pedigree and authorship, is inherently ill-equipped to account for what makes the constitution binding over time or what makes it binding for future generations.33 At the moment, I just intend to highlight one single point: given the problems of a hypothetical account of popular sovereignty, and given the significant changes that have taken place in our notions of what it means for the people to speak, the “how” of constitution-making must be regarded as equal in importance to the “what” of the constitution itself. Or to put it in slightly different terms, the guiding principles of the democratic constitution must be performatively manifest in its making. This offers us one kind of reason, a normative reason, regarding the importance of founding moments for democratic theory.
Arguably, the stress that I have been placing on founding moments may seem to stand in tension with the dynamic and open-ended character of a democratic constitution. A constitutional settlement is always provisional and fallible in principle, and hence open to contestation, interpretation and revision. One might therefore suggest that we need to think of democratic self-determination not so much along the model of an episodic founding act taking place at one crucial moment, but rather in terms of an ongoing process that extends over time.34 This dynamic or process-based approach to constitutional democracy, one might further argue, requires a corresponding shift in our conception of political legitimacy. In a recent article, Christopher Zurn presents an argument precisely to this effect. “A governmental system is legitimate,” he claims, “to the degree to which its political processes, institutions, and laws provide good evidence that it has instantiated and will continue to instantiate the project of constitutional democracy in a dynamic, self-correcting, and thus progressive manner.”35 On this view, according to Zurn, “the origins of a polity are irrelevant in a significant sense: legitimacy is not a matter that can be settled by looking at the pedigree of a political system.”36 What matters is not how the project of constitutional democracy gets off the ground but rather how it moves on: whether it keeps going in such a way as to progressively realize its own guiding aspirations. “Judgments of legitimacy are thereby constitutively severed from the who and the how of a polity’s founding—what matters is what was thereby put into motion.”37
I do agree that it is important to view constitutional democracy as a work in progress, a dynamic and open-ended enterprise, which moves on through practices of deliberation and contestation, trial and error, self-correction and piecemeal transformation. In my view, however, a process-based approach along these lines neither requires us to drop the question of founding nor rules out its significance. After all, how plausible is it to divorce judgments of legitimacy, completely and severely, from considerations of authorship, especially in the case of a new constitutional order?
Zurn seems to think that in assessing the legitimacy of a new constitution we must exclusively focus on its content and we must do so in a specifically prospective or forward-looking fashion, say, by looking at “how likely its political processes, institutions and laws are to lead to achieving and reflexively developing the project of the realization of constitutional democratic ideals.”38 However, just as hypothetical arguments about what everyone would agree to if they were rational cannot replace actual deliberation, conjectural judgments about how likely it is that the structural features of a new constitution would enable a democratic process in the future cannot substitute for the kind of legitimacy stemming from practices of opinion- and will-formation at present. It is important to emphasize the open-ended nature of constitutional democracy as a work in progress not because authorship does not matter, but because no author, including the people themselves, can claim to achieve a once and for all constitutional settlement at a single point in time.
Apart from the issue of original legitimation, there is yet another reason why founding moments matter: how the project of constitutional democracy gets off the ground would make a good deal of difference with regards to its future prospects. To get a better grasp of this point, it helps to consider what actually makes constitutional democracy an open-ended project in the first place. In my view, a dynamic constitution is
