Constitutional Latency: Migrants and Future Generations as Stress Tests of Membership

Every society that governs itself relies on a fundamental agreement: a group of people decide to live together under a shared set of rules. This agreement, often written down in a constitution, is supposed to be a conversation among equals. It assumes that everyone affected by the rules has a say in making them, or at least a way to challenge them if things go wrong. But there is a persistent problem with this idea. Before a group can decide how to talk to each other, they must first decide who counts as part of the group. This creates a difficult circle: the rules for deciding who belongs are made by the people who are already inside, leaving those on the outside with no voice in the matter. This dilemma is not just about who is a citizen today; it also concerns those who will arrive tomorrow and those who will arrive in the future.

A new study by Francesco Rizzi Brignoli from the University of Bologna explores a specific zone that exists between being fully included and being completely shut out. The author argues that we often mistake this middle ground for simple exclusion, but it is actually something different and more fluid. He calls this state "constitutional latency." Imagine a person standing on a threshold, fully visible and affected by the rules of the house, yet unable to knock on the door or speak to the people inside. They are not yet locked out, but they are not yet let in. This condition is not a mistake or a temporary glitch; the author suggests it is an unavoidable feature of any system that draws a line to define itself. The study investigates how this state of waiting affects two very different groups: migrants crossing borders and future generations who have not yet been born.

The paper begins by distinguishing this state of latency from permanent exclusion. Exclusion is a solid, hardened wall where a person is definitively outside the system, treated as a non-member with no rights to participate. Latency, however, is the dynamic and unresolved condition that comes before that wall is built. It is the moment when a person is normatively relevant—meaning public decisions shape their life and future—but they are institutionally deferred. They exist within the reach of power but outside the language used to justify that power. The author uses three specific lenses to examine this condition: membership (who is part of the deciding group), voice (the ability to contest decisions), and recognizability (whether a person is seen as a partner in conversation or merely an object to be managed).

When the author applies these lenses to migrants, a clear picture emerges. Migrants are often physically present within a country's borders, subject to its laws and police, yet legally treated as if they are still outside. They may have a nominal right to speak or appeal, but these channels are often so restricted or ignored that their voice does not actually change the outcome. They are seen by the system, but often only as a problem to be managed or a risk to be contained, rather than as a person whose story and reasons must be heard. In contrast, future generations face a different kind of latency. They are not physically present to be managed, but they are profoundly affected by decisions made today, such as those regarding climate change or debt. They cannot speak because they do not exist yet, and the current generation makes choices that will lock in their future conditions. While society often speaks of "protecting" future people, the author notes that this protection is usually one-sided. Future generations are treated as objects of care, not as partners in a dialogue. They are the recipients of a debt, not the author of the reasons behind the decision.

The most striking part of the research occurs when these two forms of latency overlap in a single person: the unaccompanied minor. This is a child who has crossed a border without a parent. Here, the spatial latency of the migrant and the temporal latency of the child merge. As a child, their ability to speak for themselves is naturally delayed until they reach adulthood. As a migrant, their ability to speak is already blocked by their legal status. The result is a unique form of invisibility. The system sees them clearly, but only as a double object: a child to be protected and a migrant to be processed. They are surrounded by guardians and procedures, yet they lack a direct voice. The protections meant for them often depend on a legal status that is unstable, meaning the very mechanisms designed to help them can vanish if their migration status changes. In this specific case, the two forms of waiting reinforce each other, creating a situation where the child is fully visible as a subject of care but almost entirely invisible as a subject with a voice.

The study concludes that the legitimacy of a constitutional order does not depend on whether it can eliminate these thresholds. The author argues that it is impossible for any group to define itself without leaving someone on the edge. The real test of a fair system is not who is included, but how the system treats those who are waiting. A legitimate system keeps the door open; it treats the condition of latency as a temporary state that can be changed through debate and institutional choice. An illegitimate system, however, turns that waiting period into a permanent fact. It treats the position of the migrant or the future generation as if it were natural and unchangeable, rather than the result of a specific decision that could be made differently.

The research suggests that the difference in how we talk about these two groups is not due to a fundamental difference in their situations, but rather a difference in how we imagine them. We tend to view future generations as "ours," a natural extension of our own community, which makes it easier to accept duties toward them. We tend to view migrants as "others," coming from the outside, which makes it harder to grant them membership. The paper argues that this distinction is a choice, not a fact. By recognizing that both groups stand in the same relationship of latency—affected by power but excluded from the justification of that power—we can see that the boundary between them is not as fixed as it seems. The goal, the author proposes, is not to rush to include everyone immediately, which is a complex political task, but to ensure that the system never forgets that the line it draws is a human creation, one that can be redrawn. The health of a democracy is measured by its ability to keep its own margins open to question, ensuring that those on the threshold are never turned into permanent outsiders.