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ON MICHEL ROSENFELDS THE IDENTITY OF THE

CONSTITUTIONAL SUBJECT
Seyla Benhabib

I. THE CONSTITUTIONAL SUBJECT AND ITS HEGELIAN PARADOXES

Michel Rosenfeld introduces The Identity of the Constitutional
Subject1 with a paradox:
First, constitutions rest on a paradox inasmuch as they must at once
be alienated from, and congruent with, the very identities that make
them workable and coherent. And second, all constitutions depend
on elaboration of a constitutional identity that is distinct from national identity and from all other relevant pre-constitutional and extraconstitutional identities.2

Furthermore, [c]onstitutions rest on a paradox because the we who

gives itself a constitution must project beyond itself and even agree to
become bound against (part of) what made it into itself.3
For Rosenfeld, this paradox is neither paralyzing nor insoluble; rather, it is the site of creative theoretical articulation and imaginative institutional construction. This is because all identity, including constitutional identity, is not sameness, but rather a process of selfhoodformation. Just as the self is an I because it can build a narrative as
well as practical identity that enables it to act as an agent in the world
by differentiating itself from others around it, collectivities too, such as
we, the people, form an identity across time by differentiating themselves from others. National and constitutional identities develop
through complex processes of negotiation between self and other,
sameness and difference, and move across illusions of homogeneity and
the recalcitrance of heterogeneity.
A disjunction exists not only between the identities of the national and the constitutional subject, but each is formed through imagining what the others identity is. In this sense, they are coconstitutive: the
Eugene Meyer Professor of Political Science and Philosophy, Yale University.
MICHEL ROSENFELD, THE IDENTITY OF THE CONSTITUTIONAL SUBJECT: SELFHOOD,
CITIZENSHIP, CULTURE, AND COMMUNITY (2010). All references in the text are to this edition.
2 Id. at 10.
3 Id. at 1011.

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imagined identity of the one is essential to the formation of the identity

of the other. Rosenfeld observes:
[A]n imagined constitutional community must constantly strive to
differentiate itself from its corresponding imagined national community without severing its links to the latter to the point that the two
cannot be imagined from a more comprehensive vantage point as
markers of some overall sameness and corresponding selfhood which
would bind a people to its nation as well as to its constitution.4

We, the people, imagine ourselves to be created by the same God,

and endowed with equal rights. Yet some forms of difference and
otherness seem so significant that we claim that these others do not
belong to whom we imagine ourselves to be. But the constitutional
subject inserts itself into the rift between our aspirations to equality and
the presence of heterogeneity, and pushes our imagination beyond its
self-imposed limits. Nonetheless, even when we are pushed beyond the
limits of our imagination, we must still be able to think of ourselves as
the same people and see the constitution as our own.
Rosenfeld draws on this dialectical Hegelian tradition of thinking
about identity and difference, as interpreted by Paul Ricoeur, Jacques
Lacan, and Jacques Derrida,5 to bring his cutting insights to bear on
some of the most difficult questions of constitutional and democratic
theory in our times. His discussion ranges over models of constitutionmaking in comparative perspective, visions of citizenship, global constitutionalism, and the formation of a transnational constitutional subject.
Since I share many of Professor Rosenfelds theoretical premises and
agree with him on normative issues, I want to offer the following comments in the spirit of friendly amendments.
The distinction, as well as disjunction, between the national and
the constitutional subject is nowhere more evident than in theoretical
and policy debates concerning the rights of foreigners, and immigration,
entry, and integration. In the following, my concern is less with concrete immigration policies but more with the theoretical question of
democratic closure. Must the people of a democracy share a certain
level of homogeneity, as Carl Schmitt infamously claimed?6 And is
4
5

Id. at 29.
The locus classicus for Hegels views on the matter is the famous discussion of Lordship
and Bondage, published in 1807. See G.W.F. HEGEL, THE PHENOMENOLOGY OF SPIRIT 22840
(A.V. Miller trans., Oxford Univ. Press 1977) (1807); cf. JACQUES LACAN, CRITS (1966); PAUL
RICOEUR, ONESELF AS ANOTHER (Kathleen Blamey trans., Univ. of Chi. Press 1992) (1990);
Jacques Derrida, Declarations of Independence, 7 NEW POL. SCI. 7 (1986).
6 For Schmitts famous, even if somewhat superficial, claims about homogeneity in democracy, see CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY 9 (Ellen Kennedy
trans., MIT Press 1985) (1923):
Every actual democracy rests on the principle that not only are equals equal but that
unequals will not be treated equally. Democracy requires, therefore, first homogeneity

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there any way to resolve the paradox of democratic closure, as postulated by Robert Dahl and Frederick Whelan?7
This discussion will then lead me to the conclusion that a transnational constitutional subject, as envisaged by Rosenfeld, is not a subject at all. My skepticism in this regard is not based on the necessity of
basing transnational constitutionalism upon an ethnos; rather, I am not
persuaded by the manner in which Rosenfeld conceptualizes the relationship between cosmopolitan citizenship and transnational constitutionalism on the matter of human rights.
II. CONSTITUTING THE BOUNDARIES OF THE DEMOS
Throughout The Identity of the Constitutional Subject, Rosenfeld
contrasts the German and French models of constitution-making as well
as citizenship.8 The German model is characterized as one where the
ethnos, an ethnically, linguistically, and to some extent religiously homogeneous nation, precedes the act of constitution-making, and citizenship is based on jus sanguinis. The French model is said to be that of the
political nation, unified through language and education rather than
the ethnic core of shared ancestry, and French citizenship is based on
jus solialthough not exclusively. This sharp contrast, however, has
changed in the last decade: in the year 2000 German citizenship law
was reformed such that children of immigrants born on German soil,
one of whose parents possessed a legal residency permit, could acquire
German citizenship upon birth. By the age of twenty-three, these children have to opt for one or another nationality. Neither is the French
model a pure jus soli one either. Successive French governments, including socialist governments, have debated whether or not schooling in
the formative years of a child in France rather than birth on French soil,
should be a precondition for acquiring French citizenship. There have
also been calls for immigrant youth to take an oath of citizenship.9
There is widespread concern in contemporary France as to whether the
and secondif the need arisesthe elimination or eradication of heterogeneity . . . . The question of equality is precisely not one of abstract, logical-arithmetical
games . . . . Since the nineteenth-century it has existed above all in membership in a
particular nation, in national homogeneity.
For a helpful parsing out of the many meanings of homogeneity in the works of Schmitt, Herman Heller, Hans Kelsen, and others, see Gertrude Lbbe-Wolff, Homogenes Volkber Homogenittspostulate und Integration, 4 ZEITSCHRIFT FR AUSLNDERRECHT UND
AUSLNDERPOLITIK 121 (2007).
7 See infra note 23.
8 See ROSENFELD, supra note 1, at 15258, 21112, 21617, 230.
9 See PATRICK WEIL, HOW TO BE FRENCH: NATIONALITY IN THE MAKING SINCE 1789
(Catherine Porter trans., Duke Univ. Press 2008) (2002).

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French model of citizenship, which ironically presupposes thicker

levels of integration than the German one, is, in fact, succeeding. The
continuing controversy about the appropriate clothing for Muslim women in the public spherethe so-called scarf affair,10 which permutated
into the affair of la voile (the veil) and now to le voile intgral (the
burka)indicates that the French constitutional subject may have
reached some limits to its own imagination about the otherness that it
is ready to consider a part of the national subject. The contrast, then,
between the French and German cases is not as pronounced as it may
seem.
One of the most important theoretical statements concerning the
identities of the constitutional and national subjects was articulated in
the last decades by the German Federal Constitutional Court. On October 31, 1990, the German Constitutional Court ruled against a law
passed by the provincial assembly of Schleswig-Holstein on February
21, 1989, that changed the qualifications for participating in local municipal (Bezirk) and district-wide (Kreis) elections.11 According to
Schleswig-Holsteins election laws in effect since May 31, 1985, all
those who were defined as German in accordance with article 116 of the
Basic Law, who had reached the age of eighteen and who had resided in
the electoral district for at least three months were eligible to vote. The
law of February 21, 1989, proposed to amend this as follows: all foreigners residing in Schleswig-Holstein for at least five years, who possessed a valid permit of residency or who were in no need of one, and
who were citizens of Denmark, Ireland, the Netherlands, Norway, Sweden, or Switzerland, would be able to vote in local and district-wide
elections. The choice of these six countries was made on the grounds of
reciprocity. Since these countries permitted their foreign residents to
vote in local and in some cases regional elections, the German provincial legislators saw it appropriate to reciprocate.

10 I have dealt with this issue in several writings, see SEYLA BENHABIB, THE RIGHTS OF
OTHERS: ALIENS, CITIZENS AND RESIDENTS 18393 (2004) [hereinafter BENHABIB, THE RIGHTS
OF OTHERS]; SEYLA BENHABIB ET AL., ANOTHER COSMOPOLITANISM 45, 5161 (Robert Post
ed., 2006), but most recently in SEYLA BENHABIB, The Return of Political Theology: The Scarf
Affair in Comparative Constitutional Perspective in France, Germany and Turkey, in DIGNITY IN
ADVERSITY: HUMAN RIGHTS IN TROUBLED TIMES 166 (2011).
11 Bundesverfassungsgericht [Federal Constitutional Court] Oct. 31, 1990, 83 BVERFGE 37
(Ger.). In the following, all translations from the German are mine. A similar change in its election laws was undertaken by the free state of Hamburg such as to enable those of its foreign residents of at least eight years to participate in the election of local municipal assemblies (Bezirkversammlungen). Since Hamburg is not a federal province (Land) but a free city-state, with its own
constitution, some of the technical aspects of this decision are not parallel to those in the case of
Schleswig-Holstein. I chose to focus on the latter case alone. It is nonetheless important to note
that the federal government, which had opposed Schleswig-Holsteins electoral reforms, supported those of Hamburg. See id. at 6081; see also BENHABIB, THE RIGHTS OF OTHERS, supra note
10, at 20208 (discussing this case more extensively).

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The claim that the new election law was unconstitutional was
brought by 224 members of the German Parliament, all of them members of the conservative CDU/CSU (Christian Democratic and Christian
Social Union) party; it was supported by the Federal Government of
Germany. The Court justified its decision with the argument that the
proposed change of the electoral law contradicted the principle of democracy, as laid out in articles 20 and 28 of Germanys Basic Law,
and according to which All state-power [Staatsgewalt] proceeds from
the people.12
Furthermore, the Court opined:
The people [das Volk], which the Basic Law of the Federal Republic
of Germany recognizes to be the bearer of the authority [Gewalt]
from which issues the constitution, as well as the people which is the
subject of the legitimation and creation of the state, is the German
people. Foreigners do not belong to it. Membership in the community of the state [Staatsverband] is defined through the right of citizenship . . . . Citizenship in the state [Staatsangehorigkeit] constitutes a
fundamentally indissoluble personal right between the citizen and the
state. The vision [or imageBild] of the people of the state
[Staatsvolkes], which underlies this right of belonging to the state, is
the political community of fate [die politische Schicksalsgemeinschaft], to which individual citizens are bound. Their solidarity with
and their embeddedness in [Verstrickung] the fate of their home
country, which they cannot escape [sich entrinnen koennen], are also
the justification for restricting the vote to citizens of the state. They
must bear the consequences of their decisions. By contrast, foreigners, regardless of however long they may have resided in the territory
of the state, can always return to their homeland.13

This resounding statement by the German Federal Constitutional

Court can be analyzed into three components: first, a disquisition on the
meaning of popular sovereignty (all power proceeds from the people);
second, a procedural definition of how we are to understand membership in the state; third, a philosophical explication of the nature of the
bond between the state and the individual, based on the vision of a political community of fate. The Court argued that according to the principle of popular sovereignty, there needed to be a congruence between the definition of democracy, the concept of the people, and the
main guidelines for voting rights, at all levels of state power, namely,
federal, provincial, district, and communal. Different conceptions of
popular sovereignty, which would be based on different compositions of
the sovereign people, could not be employed at different levels of the
organization of the state. Permitting long-term resident foreigners to
12
13

83 BVERFGE 37 (39) (Ger.).

Id. at 3940.

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vote would imply that popular sovereignty would be defined in different

fashion at the district-wide and communal levels than at the provincial
and federal levels. In an almost direct repudiation of the Habermasian
discursive democracy principle,14 the Court declared that article 20 of
Germanys Basic Law does not imply that the decisions of state organs
must be legitimized through those whose interests are affected
[Betroffenen] in each case; rather their authority must proceed from the
people as a group bound to each other as a unit [das Volk als eine zur
Einheit verbundene Gruppe von Menschen].15
In its brief before the Court the provincial parliament of Schleswig-Holstein challenged the Courts understanding and argued that neither the principle of democracy nor that of the people excludes the
rights of foreigners to participate in elections: The model underlying
the Basic Law is the construction of a democracy of human beings, and
not that of the collective of the nation. This basic principle does not
permit a distinction in the long-run between the people of the state
[Staatsvolk] and an association of subservients [Untertanenverband].16
The German Constitutional Court eventually resolved this controversy by upholding a unitary and functionally undifferentiated concept
of popular sovereignty, but it did concede that the sovereign people,
through its representatives, could change the definition of citizenship.
Procedurally, the people simply means all those who have the requisite state membership. If one is a citizen, one has the right to vote; if
not, one does not have this right.
So the Basic Law . . . leaves it up to the legislator to determine more
precisely the rules for the acquisition and loss of citizenship and
thereby also the criteria of belonging to the people. The law of citizenship is thus the site at which the legislator can do justice to the
transformations in the composition of the population of the Federal
Republic of Germany.17
14 There are many statements of Habermass view that normative validity is dependent upon
an institution, a rule or a practice being compatible with the agreement of all affected by them.
In one of the earlier formulations of the principle of universalizability in discourse ethics, Habermas wrote: Unless all affected can freely accept the consequence and side effects that the general
observance of a norm can be expected to have for the satisfaction of the interests of each individual . . . that norm could not be considered valid. Jrgen Habermas, Discourse Ethics: Notes on a
Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE
ACTION 43, 93 (Christian Lenhardt & Shierry Weber Nicholsen trans., 1990). For a detailed discussion of this problem, see SEYLA BENHABIB, In the Shadow of Aristotle and Hegel: Communicative Ethics and Current Controversies in Practical Philosophy, in SITUATING THE SELF:
GENDER, COMMUNITY AND POSTMODERNISM IN CONTEMPORARY ETHICS 23, 3438 (1992). For
Habermass views on popular sovereignty, see Ist der Herzschlag der Revolution zum Stillstand
gekommen?, in DIE IDEEN VON 1789 IN DER DEUTSCHEN REZEPTION 736 (Forum fr
Philosophie Bad Homburg ed., 1989).
15 83 BVERFGE 37 (51) (Ger.).
16 Id. at 42.
17 Id. at 52.

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This can be accomplished by expediting the acquisition of citizenship

by all those foreigners who are long-term permanent residents of Germany.
The Court here explicitly addresses the paradox of democratic legitimacy, namely that those whose rights to inclusion or exclusion
from the demos are being decided upon will not themselves be the ones
to decide upon these rules. The democratic demos can change its selfdefinition by altering the criteria for admission to citizenship. The Court
still holds onto the classical model of citizenship according to which
democratic participation, rights, and nationality are strictly bundled together in a community of fate, but by signaling the procedural legitimacy of changing Germanys naturalization laws, the Court also acknowledges the power of the democratic sovereign to alter its self-definition
such as to accommodate the changing composition of the population.
The line separating citizens and foreigners can be renegotiated by the
citizens themselves.
Yet the procedural democratic openness signaled by the Court
stands in great contrast to the conception of the democratic people, also
adumbrated by the Court, and according to which the people are viewed
as a political community of fate, held together by bonds of solidarity
in which individuals are embedded (verstrickt). Here the democratic
people is viewed as an ethnos, as a community bound together by the
power of shared fate, memories, solidarity, and belonging. Such a
community does not permit free entry and exit. Perhaps marriage with
members of such a community may produce some integration over generations; but, by and large, membership in an ethnosin a community
of memory, fate, and belongingis something that one is born into, although as an adult one may renounce this heritage, exit it, or wish to alter it. To what extent should one view liberal democratic polities as ethnoi communities? Despite its emphatic evocation of the nation as a
community of fate, the Court also emphasizes that the democratic legislator has the prerogative to transform the meaning of citizenship and
the rules of democratic belonging. Such a transformation of citizenship
may be necessary to do justice to the changed nature of the population.
The demos and the ethnos do not simply overlap.18

18 In 1993, the Treaty of Maastricht, or the Treaty on the European Union (TEU), established
European citizenship, which granted voting rights and rights to run for office to all members of
the fifteen signatory states (the member states of the European Community are now twentyseven) residing in the territory of other member countries. See Maastricht Treaty art. 8b, Feb. 7,
1992, 1992 O.J. (C 191) 1, 31 I.L.M. 247, 259. Of the six countries to whose citizens SchleswigHolstein wanted to grant reciprocal voting rightsDenmark, Ireland, the Netherlands, Norway,
Sweden, and Switzerlandonly Norway and Switzerland remained nonbeneficiaries of the Maastricht Treaty since they were not EU members. With the entry into force of the Lisbon Treaty, it
has been renamed the Treaty on the Functioning of the European Unionthe TFEU.

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In the years following this decision, an intense process of democratic iterationa term which I will explain belowunfolded in the
now-unified Germany, during which the German Constitutional Courts
challenge to the democratic legislator of aligning the definition of citizenship with the composition of the population was taken up, rearticulated, and reappropriated. The city-state of Hamburg, in its parallel plea
to alter its local election laws, stated this very clearly:
The Federal Republic of Germany has in fact become in the last decades a country of immigration. Those who are affected by the law
which is being attacked here are thus not strangers but cohabitants
[Inlaender], who only lack German citizenship. This is especially the
case for those foreigners of the second and third generation born in
Germany.19

The demos is not an ethnos, and those living in our midst and who do
not belong to the ethnos are not strangers either; they are rather cohabitants, or as later political expressions would have it, our co-citizens
of foreign origin [auslaendische Mitbuerger].20 Even these terms,
which may sound odd to ears not accustomed to any distinctions besides
those of citizens, residents, and nonresidents, suggest the transformation
of German public consciousness in the 1990s. This intense and soulsearching public debate finally led to an acknowledgment of the fact as
well as the desirability of immigration. The need to naturalize secondand third-generation children of immigrants was recognized and the
new German citizenship law was passed in January 2000. Ten years after the German Constitutional Court turned down the election-law reforms of Schleswig-Holstein and the city-state of Hamburg on the
grounds that resident foreigners were not citizens, and were thus ineligible to vote, Germanys membership in the European Union (EU) led
to the disaggregation of citizenship rights. Resident members of EU
states can vote in local as well as EU-wide elections.

19 83 BVERFGE 37 (68) (Ger.). The brief filed by the city-state of Hamburg differed from that
filed by Schleswig-Holstein in that Hamburg did not restrict the granting of the vote to foreigners
to the six states mentioned on the basis of reciprocity alone but wanted to give the right to vote in
the election of local municipal assemblies (Bezirksversammlungen) to all those who had been legal residents for eight years. This decision would have included large numbers of Turkish guest
workers and their children.
20 BENHABIB, THE RIGHTS OF OTHERS, supra note 10, at 20208. All translations in the text
are my own. The case has also been discussed in SEYLA BENHABIB ET AL., The Philosophical
Foundations of Cosmopolitan Norms, in ANOTHER COSMOPOLITANISM, supra note 10, at 13, 32
36.

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III. THE PARADOX OF DEMOCRATIC LEGITIMACY

In The Rights of Others I have circumscribed in general theoretical
terms the paradox of democratic legitimacy, which has two components.
First is the paradox of precommitments and second is that of the impossibility of democratic closure. In the first instance, the republican sovereignthe constitutional subjectought to undertake to bind its will
through a series of precommitments to a set of formal and substantive
norms, enshrined in the written constitution.21 Human and constitutional
rights are foremost among these conditions: they protect the autonomy
of citizens and residents as private persons, while also creating conditions of participation for them as public agents. The constitutional subject self-limits its own sovereignty, by binding itself in advance to uphold certain formal and procedural conditions that it may subsequently
wish to alter. While this paradox of precommitment can never be fully
resolved, its impact can be mitigated through the renegotiation and reiteration of such original commitments. Constitutional amendment procedures are the sites at which this paradox is negotiated.22
To elaborate on the problem of democratic closure23: all democracies presuppose a principle of membership according to which some are
entitled to political voice while others are excluded. The decision as to
who is entitled to have a political voice and who is not can only be
reached, however, if some who are already members decide who is to
be excluded and who is not. This means that there can be no noncircular
manner of determining democratic membership. Determining who is a
member of the demos presupposes that some are already members with
the privilege to exclude others, while others have no voice in their own
exclusion. The boundaries of the demos remain, it seems, a matter of
historical contingency and political domination. There is no democratic

21 See JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND

CONSTRAINTS (2000); Stephen Holmes, Precommitment and the Paradox of Democracy, in
CONSTITUTIONALISM AND DEMOCRACY: STUDIES IN RATIONALITY AND SOCIAL CHANGE 195
(Jon Elster & Rune Slagsted eds., 1988).
22 Michel Rosenfeld writes: As emphasized throughout, constitutional identities are dynamic
and they are bound to evolve after they are initially formed. Constitutions can be amended, revised or reformed. . . . In the last analysis, all construction and development of constitutional
identity depends on unique contextual and relational factors. ROSENFELD, supra note 1, at 209.
23 There are different ways of characterizing the problem of democratic closure. The bestknown statements are ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 11931 (1989); Frederick G. Whelan, Prologue: Democratic Theory and the Boundary Problem, in NOMOS XXV:
LIBERAL DEMOCRACY 1347 (J. Ronald Pennock & John W. Chapman eds., 1983); and, most
recently, Robert E. Goodin, Enfranchising All Affected Interests, and Its Alternatives, 35 PHIL. &
PUB. AFF. 40, 4068 (2007).

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way of determining the boundaries of the demos.24 The boundary problem, writes Frederick Whelan,
is one matter of collective decision that cannot be decided democratically . . . . We would need to make a prior decision regarding who
are entitled to participate in arriving at a solution . . . . [Democracy]
cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes.25

Prior to Whelan, Robert Dahl had already observed that the problem of
how to legitimately make up the people had been neglected by all major
democratic theorists.26
Another way of stating the paradox of democratic closure is that
popular sovereignty is not identical with territorial sovereignty, although the two are closely linked, both historically and normatively.
Popular sovereignty means that all full members of the demos are entitled to have a voice in the articulation of the laws by which the demos
governs itself. Democratic rule extends its jurisdiction to those who can
view themselves as the authors of such rule. But there has never been a
perfect overlap between the circle of those who stand under the laws
authority and those recognized as full members of the demos. Territorial
sovereignty and democratic voice have never matched completely, because there have always been those resident upon a territory who nevertheless have not enjoyed full membership, i.e., national citizenship. The
new politics of cosmopolitan membership is about negotiating this
complex relationship between rights of full membership, democratic
voice, and territorial residence. While the demos, as the popular sovereign, must assert control over a specific territorial domain, it can also
engage in reflexive acts of self-constitution whereby the boundaries of
the demos can be readjusted and democratic sovereignty itself can be
disassembled or reaggregated.27

24 See Arash Abizabeh, Democratic Theory and Border Coercion: No Right to Unilaterally
Control Your Own Borders, 36 POL. THEORY 37 (2008).
25 Whelan, supra note 23, at 22.
26 DAHL, supra note 23, at 11931; ROBERT DAHL, AFTER THE REVOLUTION? AUTHORITY
IN A GOOD SOCIETY 5963 (1970); see also SEYLA BENHABIB, Democratic Exclusions and
Democratic Iterations: Dilemmas of Just Membership and Prospects of Cosmopolitan Federalism, in DIGNITY IN ADVERSITY, supra note 10, at 138.
27 Nancy Fraser writes: Thus, instead of throwing up our hands in the face of a logical paradox, we should try to envision ways to finesse it, by imagining institutional arrangements for resolving such arguments democratically. NANCY FRASER, REFRAMING JUSTICE: THE 2004
SPINOZA LECTURES 33 (2005). While I agree with Fraser that such a process of reflexive adjustment of the frame of justice is necessary, there can be no conclusive solutions to questions of inclusion and exclusion but only ever more contested processes of adjustment through what Fraser
calls good enough deliberation. See NANCY FRASER, SCALES OF JUSTICE: REIMAGINING
POLITICAL SPACE IN A GLOBALIZING WORLD 45 (2009); see also BENHABIB, supra note 26, at
15860.

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I have introduced the term democratic iterations to describe

those processes through which both forms of democratic paradox are
negotiated. By democratic iterations I mean complex processes of
public argument, deliberation, and exchange through which universalist
rights claims are contested and contextualized, invoked, and revoked,
posited and positioned throughout legal and political institutions as well
as in the associations of civil society. In the process of repeating a term
or a concept, we never simply produce a replica of the first intended usage or its original meaning; rather, every repetition is a form of variation. Every iteration transforms meaning, adds to it, enriches it in everso-subtle ways. The iteration and interpretation of norms and of every
aspect of the universe of value, however, is never merely an act of repetition.28 Every act of iteration involves making sense of an authoritative
original in a new and different context. The antecedent thereby is reposited and re-signified via subsequent usages and references. Meaning
is enhanced and transformed; conversely, when the creative appropriation of that authoritative original ceases or stops making sense, then the
original loses its authority upon us as well. Such democratic iterations
take place today not only within boundaries of the nation-state but also
in transnational public spheres of communication and action, in which
migrants who are themselves often binationals, excolonials, postnationals, seasonal, or temporary workers participate.
To illustrate these considerations with a current example: consider
the immigration debate in the spring of 2010 concerning the fate of undocumented aliens in the United States. The controversy about the status of undocumented migrants, the majority of whom are of Hispanic,
and particularly of Mexican origin, involved not only bilateral negotiations between the United States and Mexico, but negotiations and conversations among Mexican representatives and state and local leaders,
particularly, but not exclusively, in those regions of the United States
affected by migration such as Arizona, Texas, California, and New
Mexico.
In response to Arizonas restrictive laws29 directed against undocumented migrants, proimmigrant activist groups engaged in militant action in American cities. Human rights groups and groups defending the
rights of migrants, such as MALDEF (the Mexican American Legal Defense and Education Fund), undertook litigation in U.S. courts. In a case
before Judge Susan Bolton of the Federal District Court in Phoenix, one
of the parties was the U.S. Federal Government, which maintained that
28 Cf. JACQUES DERRIDA, Signature Event Context, in LIMITED, INC. 1 (Gerald Graff ed.,
1988). For further discussions of the concept of iterations, as well as responses to critics of this
term, see BENHABIB, supra note 26, at 15153.
29 See ARIZ. REV. STAT. ANN. 13-2929 (2010) (commonly known as Senate Bill 1070, or
SB1070), available at http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf.

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immigration policy was under the purview of the federal government

and not of individual states. Surprisingly, the federal government was
supported by [t]he Mexican government, joined by seven other Latin
American nations.30
The fact that Mexico and other Latin American governments can
be parties to the same lawsuit along with the U.S. government in an
American federal court, is well indicative of the reality of transnational
public spheres. Although this process of democratic iteration will reach
some decisional closure at some future point through the decisions of
the U.S. Supreme Court or the adoption by the U.S. Congress of an immigration bill, this moment of decision, far from being one of finality,
will lead to new and further democratic iterations.
We can conclude this section with the observation that contemporary debates about the integration of French Muslim migrants into the
political nation in France, the ongoing polemics against multiculturalism, the tension between Islam and human rights in Germany, and the
persistent inability of the U.S. Congress to pass immigration reform are
all developments that suggest that the tensions between the national
and the constitutional subject are wide-spread, persistent, and are now
spilling over into the transnational public sphere as well. What, then, do
these empirical trends and conceptual dilemmas imply for Michel
Rosenfelds view of constituting a transnational constitutional subject?
IV. A TRANSNATIONAL CONSTITUTIONAL SUBJECT?
Rosenfeld writes:
For all its promise, global citizenship may not be ultimately desirable if it proved dependent on global government. Arguably, however, global citizenship could be sustained by global governance
without global government. Furthermore, if international human
rights were regarded as providing partial citizenship rights on all
human beings, then we already have in place elements of global governance that are linked to certain attributes of global citizenship.31

These observations precede Rosenfelds provocatively titled final chapter, Can the Constitutional Subject Go Global?32 With these concluding considerations, Rosenfeld engages the intense contemporary debate
on whether there can be constitutionalism with or without the state;
whether global constitutionalism is even conceivable; whether transna30 Randal C. Archibold, Judge Blocks Arizonas Law on Immigrants, N.Y. TIMES, July 28,
2010, at A1.
31 ROSENFELD, supra note 1, at 242.
32 Id. ch. 8.

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tional democracy or constitutionalism without democracy are plausible,

etc.33 Rosenfeld is well aware of the difficulties in proposing that a
global subject may even be imagined as a utopian possibility. He proposes, nevertheless, that an analogue to Jurgen Habermass constitutional patriotism can be envisaged in a layered and segmented plural
transnational order.34 This would involve human rights patriotism
coupled with constitutional necessity.35
Is human rights patriotism compatible with constitutional necessity? Rosenfeld envisages constitutional necessity as a legally pluralist
order,36 comprising different regional, functional, and segmented legal
regimes. But it seems to me too easy a solution to envisage that such legal pluralism can easily accommodate human rights patriotism. The
mediations envisaged by Rosenfeld, such that the universal and the
particular together yield the singular37 strike me as being too smooth
and not as driven by dialectical tensions as the relationship between the
national and the constitutional subjects had been conceptualized to be. It
should not be surprising why this would be so. The global constitutional subject is neither an individual, nor a collectivity, nor a plurality.
At the present, it is not a subject at all. What we have at the present in
world society is more and less advanced degrees of constitutional integration (as is the case of the European Union); an imperfect transnational organization of the worlds sole public authority, as in the case of the
United Nations; regional human rights courts, such as the Latin American Court of Human Rights and others; transnational institutions of
global governance such as the IMF and the World Bank; an International Court of Justice, as well as partial self-regulating regimes of legal
governance such as the lex mercatoria. The geography of the current
world-society exhibits a degree of plurality of principle and organization such that I see all references to a global constitutional subject as
metaphorical only.
I am not a skeptic about the utopian possibilities envisaged by
Rosenfeld; rather, I want to emphasize the formation of global subjectivities as opposed to a global constitutional subject. For me, the crucial
issue is the formation of cosmopolitan citizenship rather than the global
constitutional subject. Is there really a difference between the two
33 Cf. J.H.H. Weiler, Prologue: Global and Pluralist ConstitutionalismSome Doubts, in
THE WORLDS OF EUROPEAN CONSTITUTIONALISM 8 (Grinne de Brca & J.H.H. Weiler eds.,
2012); THE TWILIGHT OF CONSTITUTIONALISM? (Petra Dobner & Martin Loughlin eds., 2010);
RULING THE WORLD: CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL GOVERNANCE
(Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009); SOVEREIGNTY IN TRANSITION (Neil Walker
ed., 2003); TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM (Christian Joerges et al.
eds., 2004).
34 ROSENFELD, supra note 1, at 261.
35 Id.
36 Id. at 267.
37 Id. at 243.

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though? I believe that there is. Let me elaborate on this briefly by focusing on the relationship of human rights to constitutional rights. Rosenfeld seems to equate them rather quickly and this minimizes the difficulties of forming global subjectivities.
There is wide-ranging disagreement among contemporary philosophers about the philosophical justification as well as the content of human rights. Indeed, it has been remarked that in recent years, as political commitment to human rights has grown, philosophical commitment
has waned.38 Some argue that human rights constitute the core of a
universal thin morality (Michael Walzer), while others claim that they
form reasonable conditions of a world-political consensus (Martha
Nussbaum). John Rawls narrows the concept of human rights to a minimum standard of well-ordered political institutions for all peoples.39
As is well known, Rawls cautioned that a distinction needed to be made
between the list of human rights included in the Law of Peoples, and defensible from the standpoint of a global public reason, and the Universal
Declaration of Human Rights of 1948. These different justifications of
human rights inevitably lead to a certain variation in content and to
cherry-picking among various lists of rights. In a recent article Allen
Buchanan observed, therefore, that there is a justification deficit in
human rights discourse, characterized by the disturbing fact that, while
the global culture and institutionalization of human rights are gaining
considerable traction, the nature of the justification for claims about the
existence of human rights remains obscure.40
Admittedly, the philosophical discussion of human rights and the
conversation among lawyers, jurists, and legal scholars do not run in
tandem, but the philosophical debate does raise a legitimate question
about the relationship of human rights norms and constitutional rights.
In my view, human rights constitute a narrower group of claims than
general moral rights. Human rights bear on human dignity and equality;
they are protective of the human status as such. I agree with James Griffin that human rights do not exhaust the entirety of our conceptions of
justice, let alone of morality.41 Human rights have their proper place in
discourses of political legitimacy. Such discourses presuppose moral
principlesin the sense that the justification of human rights always
leads back to some moral principle and some view of human agency.

38
39

Susan Mendus, Human Rights in Political Theory, 43 POL. STUD. 10, 10 (1995).
JOHN RAWLS, The Law of Peoples, in JOHN RAWLS: COLLECTED PAPERS 552 (Samuel
Freeman ed., 1999). There are interesting differences in formulation between this early article and
Rawlss later book The Law of Peoples. See JOHN RAWLS, THE LAW OF PEOPLES WITH THE
IDEA OF PUBLIC REASON REVISITED (1999).
40 Allen Buchanan, The Egalitarianism of Human Rights, 120 ETHICS 679, 67980 (2010).
41 James Griffin, Human Rights: Questions of Aim and Approach, 120 ETHICS 741, 745
(2010).

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But human rights are most centrally part of a public vocabulary of political justice; they designate a special and narrow class of moral rights.
Human rights covenants and declarations articulate general principles that need contextualization and specification in the form of legal
norms. How is this legal content to be shaped? Basic human rights, although they are based on the moral principle of the communicative freedom of the person, are rights that require justiciable form, i.e., rights
that require embodiment and instantiation in a specific legal framework.
Human rights straddle that line between morality and legality; they enable us to judge the legitimacy of law.42
It is important to consider Habermass caveat about not making an
all-too-hasty transition from human rights considered as moral principles to constitutional rights: Hence we must not understand basic rights
or Grundrechte, which take the shape of constitutional norms, as mere
imitations of moral rights, and we must not take political autonomy as a
mere copy of moral autonomy. Rather, norms of action branch out into
moral and legal rules.43 Since even basic constitutional norms such as
respect for the dignity of the person and equality need to be promulgated in accordance with a specific jurisdiction and in a specific time and
place, they differ from moral norms that are valid for human beings at
all times and places. Moral principles, such as respect for human dignity
and equality, do not dictate a specific constitutional content, although
all constitutional basic norms entail certain moral principles of respect
for persons, their equality and dignity.
In negotiating the relationship between general human-rights
norms, as formulated in various human rights declarations, and their
concretization in the multiple legal documents of various countries, we
may invoke the distinction between a concept and a conception.44 We
need to differentiate between a moral concept such as fairness, equality,
and libertylet us sayand conceptions of fairness, equality, and liberty that would be attained as a result of introducing additional moral and
political principles to supplement the original conception.45 Should justice be defined as fairness (Rawls) or as from each according to his
abilities, to each according to his needs (Marx)? To be able to argue
for one or the other, we would need to introduce some further claims
42 See the classical essay by RONALD DWORKIN, Taking Rights Seriously, in TAKING RIGHTS
SERIOUSLY 184 (1977).
43 JRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE
THEORY OF LAW AND DEMOCRACY 107 (William Rehg trans., 1996).
44 In A Theory of Justice, Rawls invokes H.L.A. Harts discussion in The Concept of Law to
introduce this distinction. See JOHN RAWLS, A THEORY OF JUSTICE 5 (1971); see also H.L.A.
HART, THE CONCEPT OF LAW 15559 (1975). My usage of these terms is more kindred to
Dworkins. See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 42. Many thanks to the late
Ed Baker for clarifying some of the intertextual issues involved here.
45 DWORKIN, Constitutional Cases, in TAKING RIGHTS SERIOUSLY, supra note 42, at 134.

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about scarcity, human needs and wants, the structure of the basic subject
of justice, and the like to supplement our original concept of justice.
Applied to the question of how we move from general normative
principles of human rights, as enshrined in the various covenants, to
specific formulations of them as enacted in various legal documents,
this would suggest the following: these documents formulate core concepts of human rights which that form part of any conception of valid
constitutional rights. How, then, is the legitimate range of rights to be
determined across liberal democracies or how can we transition from
general concepts of right to specific conceptions of them? Even as fundamental a principle as the moral equality of persons assumes a justiciable meaning as a human right once it is posited and interpreted by a
democratic law-giver. And here a range of legitimate variations can always be the case. For example, while equality before the law is a fundamental principle for all societies observing the rule of law, in many
societies such as Canada, Israel, and India this is considered quite compatible with special immunities and entitlements that accrue to individuals in virtue of their belonging to different cultural, linguistic, and religious groups. For societies such as the United States and France, with
their more universalistic understandings of citizenship, these multicultural arrangements would be completely unacceptable.46 At the same
time, in France and Germany, the norm of gender equality has led political parties to adopt various versions of the principle of parite
namely, that women ought to hold public offices on a fifty-fifty basis
with men, and that for electoral office, their names ought to be placed
on party tickets on an equal footing with male candidates. By contrast,
in the United States, gender equality is protected by Title IX, which applies only to major public institutions that receive federal funding.47 Political parties are excluded from this.
James Nickel is one of the few authors who have noted the multiplicity of levels at which rights vocabulary can function and who have
tried to explain the translation of the language of moral principle to that
of justiciable rights claims. Nickel writes:
The rights vocabulary can be used at any of these levels. For example, one might talk at the grand level of the right to equal respect, at
the middle levels of the constitutional right to due process, and at the
application levels of a statutory right to have thirty days to prepare
for a hearing. But the vocabulary of human rights is used most typically at the middle levelit is used by nations or international organ-

46 SEYLA BENHABIB, THE CLAIMS OF CULTURE: EQUALITY AND DIVERSITY IN THE GLOBAL
ERA 15468 (2002).
47 See 20 U.S.C. 16811688 (2006).

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izations to outline in broad but still fairly definite terms what grander
principles of morality and justice require in one country or era.48

There is, in other words, a legitimate range of variation even in the

interpretation and implementation of such a basic right as that of equality before the law. But the legitimacy of this range of variation and interpretation is crucially dependent upon the principle of selfgovernment. My thesis is that without the right to self-government,
which is exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights as
being legitimate. Unless a people can exercise self-government through
some form of democratic channels, the translation of human rights
norms into justiciable legal claims in a polity cannot be actualized.
Therefore, the right to self-government is the condition for the possibility of the realization of a democratic schedule of rights. Just as without
the actualization of human rights themselves self-government cannot be
meaningfully exercised, so too without the right to self-government,
human rights cannot be contextualized as justiciable entitlements. They
are coeval; that is, the liberal defense of human rights as limits on the
publicly justifiable exercise of power needs to be complemented by the
civic-republican vision of rights as constituents of a peoples exercise of
public autonomy. Without the basic rights of the person, republican
sovereignty would be blind; and without the exercise of collective autonomy, rights of the person would be empty.49 Cosmopolitan citizenship is formed through such democratic iterations within and across
demoi.
I am not sure that Rosenfeld would disagree. Yet he overemphasizes the function of principles such as margin of appreciation, proportionality, and subsidiarity50 in negotiating the relationship between human
rights and constitutional rights. While these are essential to the task of
legal adjudication, they do not play the same role in the formation of the
democratic cultures of cosmopolitan citizenship as do democratic iterative processes exercised within the framework of self-government.
Democratic citizens must reinterpret and reappropriate their human
rights principles to give them shape as constitutional rights, and if and
48 JAMES W. NICKEL, MAKING SENSE OF HUMAN RIGHTS: PHILOSOPHICAL REFLECTIONS ON
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 44 (1987).
49 I owe this formulation to Habermass thesis on the co-originality of public and private au-

tonomy. See HABERMAS, supra note 43, at 84104. The final sentence refers, of course, to Kants
famous formula that [t]houghts without content are empty, intuitions without concepts are
blind. IMMANUEL KANT, CRITIQUE OF PURE REASON 93 (Norman Kemp Smith trans., St. Martins Press 1965). Although I am indebted to Habermass general discussions of the relationship
between public and private autonomy and his analysis of the discursive legitimation of law, I do
not follow his discourse-theoretic deduction of basic rights. See Seyla Benhabib, Between Facts
and Norms: Contributions to a Discourse Theory of Law and Democracy, 91 AM. POL. SCI. REV.
725, 72526 (1997) (book review).
50 ROSENFELD, supra note 1, at 27072.

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when necessary, suffuse constitutional rights with new content; nor is it

to be excluded that such constitutional iterations may themselves provide feedback loops in rendering more precise the intent and language
of some of the International Human Rights Declarations. Such processes of democratic iteration and negotiation do not yield a global constitutional subject. At their best, they produce a messy awareness of the difficulties as well as attractions of world-citizenship. It is only by
suffusing the universalist promise of human rights with concrete moral
and political struggles in concrete contexts that visions of cosmopolitan
citizenship and global subjectivities can develop.51

51 I have discussed in more detail the role of global social movements in claiming rights
across borders and generating cosmopolitan citizenship in SEYLA BENHABIB, Claiming Rights
Across Borders: International Human Rights and Democratic Sovereignty, in DIGNITY IN
ADVERSITY, supra note 10, at 117.