Whose Constituent Power Is It?

Ferrara maintains that constituent power – i.e., the power to issue a constitution – needs a sovereign actor endowed with singular intentionality, because neither a law nor a constitution can establish itself. At least fifty-three actual constitutions around the world claim authorship on behalf of “the people” for their articles. The question arises: is that actor – the people – an actual subject or, as argued by Juergen Habermas and Hans Kelsen, a merely fictional one? An argument is presented to the effect that it cannot but be fictional. The argument draws on a celebrated result due to Condorcet and generalised by Kenneth Arrow, showing that a plurality of rational subjects, such as a people, is bound to be sometimes irrational, in so far as it  harbours cyclical preferences. This is a serious obstacle to holding that an actual people could be endowed with intentionality, which presupposes the possession of, among other things, will, memory, preferences and also rationality.