The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

The paper comprehensively responds to critical comments by F. Michelman, D. Rasmussen, J. van der Walt, S. Winter, P. Niesen, and B. Schupmann on Sovereignty Across Generations. Constituent Power and Political Liberalism. The themes debated include: whether Rawls’s dualist view of democracy, including his idea of legitimation by constitution, intimates or calls for a concretistic view of a subject of constituent power as creator of the constitutional order (Michelman); the relation of the normative to the historical in political liberalism and (...) whether Plato’s allegory of the cave is helpful for elucidating the meaning of the ‘most reasonable for us’ (Rasmussen); Rawls’s stance vis-à-vis the unbridgeable divisiveness of pluralism, the virtuality of overlapping consensus, and the dissolution of constituent power into a panoply of constituent powers (Van der Walt); democratic sequential sovereignty contrasted with serial sovereignty, the sensibleness of distinguishing legal principles from the cognitive assumptions undergirding their application, the justification of sequential sovereignty, and the nexus of vertical reciprocity and freedom across generations (Winter); the implications of the gap between ‘the people’ and the population for constitutional legitimacy, and the distinct prospects for a Habermasian and a political liberal conception of constituent power to be applicable at a supranational level (Niesen); the cogency and effectiveness of ‘implicit unamendability’ for safeguarding constitutional essentials compared with entrenching them via eternity clauses, the extent to which measures of militant democracy are compatible with political liberalism (Schupmann). (shrink)