Abstract
Abstract
Constitutional orders are commonly described as either including or excluding those they affect. This article argues that the vocabulary of inclusion and exclusion misses a condition lying between the two, and proposes the term constitutional latency to name it: the position of subjects who are normatively relevant to a constitutional order, because public decisions shape their situation, yet remain institutionally deferred, only partially able to enter the channels of participation and contestation the order makes available. Latency is distinguished from exclusion, which names the stable outcome in which such liminality has hardened. The concept is developed through two stress tests of the premise of membership that underpins constitutionalism, one spatial and one temporal: migrants and future generations, examined not as morally analogous groups but as the two points at which that premise reveals its own justificatory tension. A tripartite lens of membership, voice and recognizability is applied to both axes, and then to unaccompanied minors, in whom the two forms of latency overlap within a single subject. The article concludes that the legitimacy of a constitutional order does not turn on whether it produces latency, which it cannot avoid doing, but on whether it keeps that latency contestable rather than reifying it into exclusion.