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contract theory. That political authority rests on our consent and that we are obliged to abide by it on account of our own will has been the point of contractarian arguments from Hobbes onward. Kant thinks that there is something deeply unsatisfactory in this idea: how can the consent of private individuals, each of whom after all acts on his own particular will, produce a public authority? The issue at stake is not simply a matter of enforcement as Hobbes would want to have us believe when, for example, he famously maintains that “covenants without the sword are but words.”²³ For Kant, there is a deeper issue at stake, and it is one of perspective.

      The fundamental distinction between private will and public authority is that while the former indicates a partial (or unilateral) point of view, the latter is by definition bound to proceed from an impartial (or omnilateral) one.²⁴ A contractarian theory representing the state as the product of an agreement between private wills is defective as a way of understanding the normative structure of the state because a coalition of partial perspectives, no matter how inclusive and voluntary such coalition might be, does not in itself add up to impartiality. This is precisely why Kant argues—strictly following Rousseau on this point—that public authority could only be based on the united will of “everyone (omnes et singuli) within a people.” A united will of this sort, in its turn, requires each person (singuli) to take the perspective of the whole (omnes) and thereby to adopt an impartial point of view. Thus, in the Kantian framework, the original contract does not so much stand for a hypothetical act of promise making. Rather, it is first and foremost a hypothetical act of perspective taking. It is meant to articulate what everyone would consistently agree to if each of them were to take the standpoint of the whole.

      On this view, then, to express it in the language of consent, public authority is legitimate and compatible with freedom not because we give our consent to it whether explicitly or tacitly, but because it is worthy of our consent on account of the impartial perspective from which it is structured.²⁵ Accordingly, constitutional claims of popular sovereignty do not rest on the people themselves. They are anchored in the hypothetical voice of the people, which speaks in terms of generalizable interests alone, thereby setting the rational principle of public law as such. In this way, Kant claims to have countered the aforementioned objections made by Filmer and Hume.

      What Is the Problem with Hypothetical Popular Sovereignty?

      This hypothetical conception of popular sovereignty has nonetheless become deeply problematic in the contemporary world. To give an overview of the problem, I want to distinguish between three ways in which it comes in for criticism. Let me call them “philosophical,” “deliberative,” and “pluralist” objections, respectively. The philosophical objection has to do with the metaphysical background against which hypothetical arguments are justified. In the Kantian scheme, the impartial perspective from which a “civil constitution” ought to be framed is not something we achieve ourselves in the real world through opinion exchange and political debate, through contestation, deliberation, and persuasion. Rather, it is already there, objectively and universally, set by practical reason alone in an a priori fashion. It is claimed to be accessible to all rational beings in the same way.

      This means that the “original contract” designates a criterion of legitimacy which transcends all time and place. In Kant’s telling formulation, it is a “Platonic ideal (respublica noumenon), which is not an empty figment of the imagination, but the eternal norm for all civil constitutions whatsoever.”²⁶ A claim of this sort, however, is of course notoriously resistant to proof like all arguments about “first principles,” “natural law” or “self-evident truths.” Insofar as they appeal to an independent order of verification, which is beyond and above our temporal reality, such arguments are met with profound skepticism today. This is why prominent neo-Kantians such as Rawls and Habermas opt for, in their own ways, a philosophical program of intersubjective validation instead of a metaphysics of practical reason.

      Hypothetical accounts of popular sovereignty come in for further criticism from a deliberative point of view. Notice that, for Kant, the legitimacy of public law is not related to what real citizens actually have to say on the subject of their constitution, on the forms and principles of their own political organization. Legitimacy is detached from the deliberative agency of citizens at a fundamental conceptual level, and tied instead to a formal test of consistency: “if it is only possible that a people could agree to it,” Kant writes, “it is a duty to consider the law just, even if the people is at present in such a situation or frame of mind that, if consulted about it, it would probably refuse its consent.”²⁷ While the hypothetical voice of the people, speaking in terms of generalizable interests alone, sets the rational principle of public law as such, the actual voices of the people are stripped of their constituent capacity.

      It is important to realize that this problem applies to all models of hypothetical agreement whether or not they rest on metaphysical assumptions. Rawls’s “original position” is a case in point.²⁸ Unlike the Kantian “original contract,” the Rawlsian model does not involve any transcendental grounding. However, it leads to a similar deficit insofar as rational agreement is not the outcome of actual deliberation but a function of the theoretical design of the original position. This is one of the central challenges posed by Habermas in his critical encounter with Rawls. Consider the following remark:

      From the perspective of the theory of justice, the act of founding the democratic constitution cannot be repeated under the institutional conditions of an already constituted just society, and the process of realizing the system of basic rights cannot be assured on an ongoing basis. It is not possible for the citizens to experience this process as open and incomplete, as the shifting historical circumstances nonetheless demand. They cannot reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place within the theory; and they find the results of the theory already sedimented in the constitution.²⁹

      At a fundamental conceptual level, Habermas’s criticism turns on the meaning of political autonomy. “Citizens are politically autonomous only if they can view themselves as the joint authors of the laws to which they are subject as individual addressees.”³⁰ By severing constitutional essentials from actual processes of political will-formation, however, Rawls’s hypothetical model brings a substantive limitation to the quest for political autonomy. Consequently, as the Rawlsian “veil of ignorance” is raised step by step, citizens “find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control.”³¹ There is a sense in which models of hypothetical agreement are inherently prone to compromise the promise of political autonomy.

      Finally, in the contemporary world, hypothetical conceptions of popular sovereignty face the further challenge of pluralism. In an age of cultural diversity and struggles for recognition, the counterfactual picture of “the people” speaking in a single voice has increasingly come in for criticism as a hegemonic vision of political community, one which is imposed on a diverse population. Accordingly, statements in the name of “we the people” are claimed to be inherently difference-blind, to ignore diversity and heterogeneity, while at the same time fostering partial interests, particular conceptions of the good and dominant ways of life under the guise of cherished democratic ideals. Of course, this is not to say that the people don’t speak. The point of the matter is rather that they speak in a plurality of voices—and crucially, everyone wants to be heard in her own voice.

      This poses a pressing problem for contemporary democratic theory. If there is no “we the people” speaking in a unified voice, or if the voice of the people is more like a cacophony than a symphony, then what do we make of constitutional claims of popular sovereignty? Or, to put it differently, how can we account for the democratic legitimacy of a new constitution if there is no privileged and uncontestable vantage point from which to discern the supposedly “real voice” of the people? Simone Chambers sums up the problem succinctly: “on the one hand, we need a ‘people’ to be able to speak as one to fulfill the voluntarist aspirations of modern constitutionalism; on the other hand, creating a ‘people’ through assimilation and

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