Constituent Power as Body: Outline of a Constitutional Theology

Abstract

ion, alienation, and the expropriation of the cooperative creativity of the multitude. Command is privilege: the fixed and unified appropriation of constituent power. It is constituted power and constitution. The world is thus inverted: command precedes cooperation. But this reversal and the rationality and logic that exalt it are in themselves contradictory and limited because they do not possess the force of their own reproduction. Negri’s words reveal here a deep-seated aversion to the idea of the rule of law. His model of absolute democracy is stripped of central features of liberal or republican democracy: the rule of law and the division 222 UNIVERSITY OF TORONTO LAW JOURNAL between private and political spheres. These principles entrench individual autonomy by securing the absence of the sovereign collective body. Democracy is particularly vulnerable to the expansionist attempts of the communal body. Like Schmitt, Negri advocates an understanding of popular sovereignty, which turned democracy into a hothouse for fascist ideas and movements. Contrary to Negri’s account, only democratic institutions that secure the transcendence of sovereignty allow for diversity of opinion and pluralism of conflicting loyalties. The more episodic and fleeting is sovereign presence, the safer are individual autonomy and human rights.