Abstract The idea that constitutions possess core identities to be preserved across constitutional change and capable of performing an integrative function is the basic premise of this article. It begins by outlining three ways of conceptualizing constitutional identity—“procedural” (Jürgen Habermas), “existential” (Carl Schmitt), and “political-liberal” (John Rawls)—and of understanding the related notion of constitutional authenticity. The article defends the political-liberal conception of constitutional identity and examines the constraints imposed on the electorate’s amending power by the integrity of constitutional identity. These constraints are argued to be best justified by a sequential, rather than serial, conception of democratic sovereignty. The considerations supporting sequential sovereignty are developed ex negativo from the problematic consequences associated with serial sovereignty and initially reflect the perspective of an observer asking what is likely to occur if a serial conception of democratic sovereignty prevails in a democratic society. The article then turns to arguments, framed from the internal perspective of a participant, for why it would be illegitimate for living citizens to alter constitutional essentials, even in compliance with constitutional provisions governing amendment. Rawls’s teleological justification for such limits is critically examined, and the core of his position is defended on the basis of the idea of vertical reciprocity among all the free and equal generations of a people. Finally, the article elucidates the distinctive patterns through which constitutional identity and constitutional authenticity undergo transformation in light of the sequential, political-liberal conception of democratic sovereignty.
Alessandro Ferrara (Thu,) studied this question.