Constituent Power: Real or ideal?

Constituent power is the power a subject has for establishing (amending, repealing) constitutional norms. In modern democracies, this power is entrusted to a controversial entity, namely “the people”, the object of Ferrara’s investigation. The following observations aim to discuss our alleged need, ac- cording to Ferrara, for a concept of constituent power (Ferrara 2024, p. 327). I will show that the need for a concept of constituent pow- er can be interpreted in two ways. The first is normative and leads Ferrara to investigate the question: Why do we need an ideal of con- 356 POLITICA&SOCIETÀ 2/2024 stituent power? In this sense, Ferrara should be seen as examining the assumption that the justification of a particular socio-political order is based on evidence that the people subject to it would have chosen it as the order under which to live, even though they never did. The second is epistemological and leads Ferrara to investigate the question: Why do we need a descriptive/explanatory concept of con- stituent power? In this case, we must see Ferrara as being concerned with explaining why we should believe that a specific constituent power – the people – exists at all. I will show that, in dealing with the concept of constituent power, Ferrara shifts from one concept to the other and I will suggest that the reason for this shift depends on a situated conception of justifi- cation that Ferrara deems central to Rawls’ Political Liberalism (PL), in contrast to the abstract justification that A Theory of Justice (TJ) expounds. I argue that in attempting to keep these two supposedly opposing modes of justification distinct, Ferrara overstates what he needs to prove, while also attributing to Rawls a thesis that Rawls does not support. Doubts over the role of a non-fictious constituent power are also the focus of Frank Michelman’s discussion. However, according to Michelman, even if Ferrara’s arguments cannot prove “an essential requirement” for a (qualified) moment of constituent power, an ad- ditional (and Rawlsian) argument can be offered to vindicate its ne- cessity. In my final remarks, I seek to show how Michelman’s supple- mental argument cannot be attributed to Rawls either.