Constituent Power, Constituent Rights: Thinking Rights with Spinoza and Negri

The core promise of the modern concept of constituent power is to make the people-as-the-governed active participants in the shaping and ruling of political regimes. Its development was related to the consolidation of the modern state. Current circumstances, though, raise the issue of the possibility of a non-state based concept of constituent power, and of appropriate constituencies. The article argues that dominant views have made the people-as-the-governed capacity to act dependent upon state sovereignty, whereas the latter actually was informed by theses antithetical to popular sovereignty. In order to show how a non-state based concept of constituent power may be articulated, the article builds on a critique of Martin Loughlin’s attempt to capture the structure of beliefs that frames the idea of the state and the function of constituent power within that structure. The first part of the article focuses on the main elements of such a theory in order to situate its basic assumptions about constituent power. The second discusses the issues raised by such a conception, amongst other things as to the status granted to the structure of beliefs that frames the idea of the modern polity in Loughlin’s perspective; this discussion opens the way to an alternative conception of constituent power, one that stresses that the core fact of the political is that people are always already embedded in relations of power that are not restricted to the state, relations in the course of which they strive to achieve their civic freedom. Political power is not necessarily made public until the people-as-the-governed, in challenging the boundaries of the polity, claim it.

The article is a detailed review of the book, which examines the problem of the relationship between law and constituent power in the historical and political and legal context of the constitutional development of the institution of constitution-making in European countries and some Latin American states during the 18th — early 21st centuries. The huge scientific and intellectual pool that has formed in the space of constitutional thought about constituent power is an inexhaustible source for researchers of the intellectual tradition and content, procedures and boundaries, political opportunities, and legal principles of the institution of constitutional lawmaking. The concept of constituent power has a powerful generative potential that creates modern constitutions and constitutional legal order. Moreover, modern constitutional law owes its existence to constituent power; it maintains a legal connection with this authority and creates rules and principles for the operation of this authority. The doctrine of legal constitutionalism can create intellectual bridges for the constitutionalization of constituent power. Law and constituent power are in a complex and competing relationship. New methodological approaches to the study of constituent power are based on the idea that this form of public power is bound by specific legal and constitutional principles that have a constitutional and extra-legal nature and status. The desire to see in constituent power legal principles that require constitutional and extra-constitutional (supra-constitutional) understanding is an important guarantee of maintaining the constitutional worldview in creating a new constitution and adopting constitutional amendments. There is a threat to the constitutional worldview in the two extremes in the dilemma about the relationship between the constitution and constitutive power: a permanent constitution and a permanent constituent power. The article analyzes important issues of the relationship between the constituent power and law from the end of the 18th century to the beginning of the 21st century. The forms of these relations followed the path of gradual constitutionalization of the very idea and principles of the “work” of the constituent power, considering the experience of European states (France, Spain) and Latin American countries (Venezuela, Colombia). Constituent power, by virtue of its relationship to the material content of the constitution, can thus serve the function of protecting certain types of constitutional norms. At the same time, such restrictions are important but they do not guarantee it from a constitutional revolution or collapse because of a coup d’état or “color revolutions”.

This essay goes beyond the dominant conception of constituent power developed by Emmanuel Sieyès and Carl Schmitt by excavating an alternative through the practices of twentieth-century workers’ councils and the interpretations of council democracy by Cornelius Castoriadis and Hannah Arendt. Interpreters of the constituent power often agree on its fundamentally antagonistic relation to constituted power, hereby making constituent politics a momentary experience, which cannot be sustained in constituted politics. Council democracy, instead, discloses a modality of politics, which bridges the gap between constituent power and political form in order to provide institutional means through which the spirit of revolution can survive the founding moment. With this alternative concept of council democratic constituent power, this essay contributes to radical democratic theory by stipulating ways in which institutions can be rethought radically democratic as a way in which constituent power (creativity, novelty, freedom) can be institutionally approximated and continually reexperienced.

Parliamentary sovereignty should be understood as an institutionally oriented-doctrine and in this context the ‘political limits’ on parliamentary sovereignty can be understood. Challenges to Parliamentary sovereignty stem from the increasingly fragmented nature of authority in constitutional orders today. Such a problem is not unique to the UK. In this context, while Parliament can claim superior democratic legitimacy vis-a-vis constitutional authorities such as the courts, or the Monarch as was historically the case, the same is not necessarily the case in relation to other authorities such as the devolved institutions. In particular, parliament should be particularly aware of the limits of the democratic legitimacy of parliamentary sovereignty in relation to referendums and the emergence of ‘the people’ as an alternative source of authority. In this regard, the idea of ‘constituent power’ can illuminate many of the current challenges facing parliamentary sovereignty today. Parliamentary sovereignty performs much of the functions that ‘constituent power’—the unlimited power to create and establish a constitutional order—performs in other constitutional orders. However, while constituent power is often considered to be vested in ‘the people’ Parliament’s claim to the constituent power in the UK reveals a potential tension between Parliament and ‘the People’. Parliament must be aware of, and take account of this tension if its claim to the constituent power is to be maintained and legitimated. In turn, this concept of constituent power can illuminate discussion of who ‘the people’ in the UK actually are and whether the UK is a unitary or ‘plurinational’ polity.

Constituent power is for constitutional theory what god is for cognitive dissonance: a creation of legal consciousness that is necessary in order to make sense of phenomena that are not explainable nor justifiable in terms of positive law to which we are so helplessly bound. Today constituent power is, for that matter, an ex-post justification we ascribe to certain changes that occur in our legal systems. These changes used to be conceived as instances in which, as some claimed, norms were created in a god-like manner ex nihilo. They were willed into existence. The ex nihilo creation is a hallmark of traditional understanding of the role played by the concept of constituent power in constitutional theory. The unfetteredness of constituent power entails a danger of possibility that democratic states will backslide into authoritarian regimes where the citizens are treated as the objects, not the subjects of the state.The main claim of my dissertation is that the practice of constitutional and supreme courts indicates that the constituent power of free and equals cannot be understood as unlimited and that it should not be regarded as such in light of the theoretical justification I provide.Based on the practice of constitutional and supreme courts, the constituent power is not unfettered because there are principles and values based on which these courts strike down constitutional amendments. Courts declare the unconstitutionality of constitutional amendments which infringe upon certain principles and values that are claimed to be either sine qua non of a constitutional state governed by the rule of law, or belong to the fundaments of the constitution. Often these principles and values are not found among constitutional provisions. Moreover, the courts establish those limits regardless of whether such an authority has been provided to them by constitutional framers or without there being any substantive entrenchment provision on which the courts could ground their decision.I propose a theoretical account of constituent power that is limited. It is limited because its ultimate aim is creating a constitution which makes a claim to legitimate authority. Legitimate constitutional authority requires that the norms establishing basic procedures, institutions and substantive rules that claim authority over someone must be reasonably justifiable to them as free and equals endowed with human dignity. According to the theory I am proposing there exists a ‘core of constitutionalism’ which consists of normative presuppositions that condition how the constituent power of free end equals can be exercised. In my project I intend to argue that we can conceive of how and in what way the exercise of constituent power of free and equals produces constitutional law which makes claim to legitimate constituent authority.

Despite recent criticisms ably presented by Sergio Verdugo, the concept of constituent power seems essential to explain how irregular constitutional changes—those brought about by processes not authorized by the constitution in place—are or become legally binding. Properly understood, the concept of constituent power is not used properly either “in the moment” or prospectively, that is, as partisans advocate for irregular changes or implement irregular processes to put such changes in place. Rather, the concept is properly used only retrospectively, not as Verdugo suggests to support a claim that a unified people actually endorsed the changes when they first occurred, but rather to identify those irregular changes that “stick”—that a nation’s people come over time to accept as legally binding.

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism.

In his Foreword, Sergio Verdugo presents Schmitt’s account of constituent power as the conventional understanding of this concept. At the same time, he shows that Schmitt’s views are contested and hardly accepted as a matter of convention. Verdugo’s critiques of constituent power are leveled mainly against Schmitt’s (“conventional”) understanding of the concept. If Schmitt’s account is relaxed, various criticisms of constituent power seem overstated. We have good reasons to abandon Schmitt’s conception of constituent power as unlimited and permanently active. Several flaws of Schmitt’s model of constituent power have to do with its failure to account for the contribution of constituent power to world-building. A restless and omnipotent constituent power cannot contribute much to the construction of a public world. Schmitt’s unruly constituent power entraps society in a state of permanent worldlessnes (Arendt) or communitas (Turner). In order to allow for the reproduction of the public world, constituent power has to be limited and discontinuous. A theory of the constitution that is based on Kantorowicz’s account of the corporate body politic sheds light on the legal construction of public space and public time.

This chapter develops a distinction between sovereignty and constituent power. It argues that when distinguished from constituent power, sovereignty appears not as a constitution-making force, but as the ability to create any legal content without being subject to the separation of powers. A sovereign, in this sense, is best understood as an individual or entity who enjoys an uncontrollable jurisdiction to transform its will into law. The exercise of constituent power, in contrast, only involves a constitution-making authority; it can only produce constitutional norms. Part I examines Jellinek’s conception of constituent power, which he developed in the context of his discussion of the theory of the organ. In his work, constituent power usually appears as an extra-legal force, inseparable from the notion of an omnipotent law-maker. Part II contrasts that conception with that of Carré de Malberg, who tried to avoid the risks of a constitution-maker attributed with the totality of political power by conceiving the nation as a sovereign entity that could only act and will through state organs who never enjoyed sovereign authority. Part III argues that it is in Schmitt’s work where the distinction between sovereignty and constituent power (between sovereignty and sovereign dictatorship) appears more clearly. Part IV considers examples of entities that, in the 20th and 21st centuries, have understood themselves as the means for the exercise of constituent power and have assumed sovereign authority. The emphasis will be on the Colombian Constituent Assembly of 1991 and in the Venezuelan Constituent Assembly of 2017.

This article analyses the Treaty of Waitangi in light of Carl Schmitt's concept of constituent power – the idea that in a democracy the people hold the power to make fundamental political decisions to determine their form of political existence. It finds that in 1840, Māori, as the holders of constituent power, made a fundamental political decision to share authority between themselves and the Crown. This fundamental political decision is a key element of the New Zealand constitution; limiting potential constitutional changes that would override the substance of the decision, and requiring changes to the current legal framework in order to comply with the decision to share authority. This article focuses solely on the conservative implications of characterising the Treaty as a fundamental political decision. It concludes that only a further exercise of constituent power by Māori can legitimately override or significantly change the fundamental political decision in the Treaty.

ABSTRACTThis article engages with the concept of constituent power and its viability in times of transnational constitutionalism. After discussing systems-theoretical, procedural and sovereignist approaches, it argues that constituent power in transnational contexts has to be reframed as negative device and countervailing power. The article resurrects a line of constitutional thought which can be traced back to Machiavelli and the young Karl Marx. Here, constituent power is primarily a matter of revocatory scenarios which open up avenues for a re-negotiation of existing orders. In our contemporary world, the question resurfaces what kind of legal and political communications articulate such revocatory scenarios and exert destituent effects on existing hegemonies within transnational constitutionalism.

In the context of the American Revolution, alongside the influential notion of constituent power advocated, for instance, by the Federalists, emerged an alternative and potent perspective about this concept. This perspective, which was particularly strong in revolutionary Pennsylvania, had at least two distinctive features. First, rather than limiting constituent power to a sort of ante-room of constitutional authority, this view conferred primacy to the constituent process over the institutional machinery. Second, instead of exclusively assigning the exercise of constituent power to a few specialists, this perspective invented ways for the multitude to exercise its power directly. This article examines this particular vision of constituent power. This investigation, as I argue, can both assist in demystifying some common assumptions entrenched in the concept of constituent power and provide insights for contemporary reflection on the limits of representative democracy.

This chapter examines two related traditions of thought that reject the existence of an extra-legal constituent power or deprive it of one of its main features. The first of these traditions, the doctrine of the historical or internal constitution, presented a direct challenge to the theory of constituent power. In Spain, the main exponent of this doctrine during the 19th century was Gaspar Melchor de Jovellanos, who held that rather than the result of an act of will, constitutions emerged through long historical processes and could not be simply created and recreated. The second (and related) line of attack against the concept of constituent power during the 19th century came from the French and Spanish doctrinaires. The doctrinaires rejected the idea that the people (or any other individual or group) had a right to create new constitutional orders. For them, sovereign authority belonged to reason itself, not to the monarch or the community. The chapter examines the practical implications of these ideas by exploring the debates that took place during the adoption of the Spanish Constitution of 1845.

Carl Schmitt’s concept of constituent power, grounded in his engagement with the constitutional theory of the French Revolution, has recently attracted renewed scholarly attention. Existing research has largely focused on the connection Schmitt draws between Sieyès’s notion of constituent power and the modern concept of dictatorship, particularly in relation to the National Convention (1792–1795). This article advances a different perspective by examining Schmitt’s study notes, written between 1923 and 1926, on the constitutional debates of the National Constituent Assembly (1789–1791). It argues that Schmitt’s constitutional theory was shaped more profoundly than previously acknowledged by the constitutional-monarchical current of these early debates, and that his engagement with Sieyès reflects a significant continuity of ideas rather than a selective or instrumental appropriation. Drawing on materials from Schmitt’s personal archive (Nachlass), the article shows how this early engagement informed key concepts in his constitutional theory – most notably constituent power, representation, and monarchy – while also clarifying the monarchical foundations of his later conception of the head of state (Reichspräsident). It further demonstrates that Schmitt’s reading of the French Revolution was mediated by a critical dialogue with the work of the German jurist Karl Loewenstein, published in 1922.

Los principales esfuerzos que se han hecho por examinar la cuestión de la legitimidad de la Constitución y la necesidad de cambio constitucional están atados a una concepción soberanista o revolucionaria del poder constituyente que resulta inadecuada para el caso chileno. Esta forma de entender la cuestión constitucional ha llevado a que el debate sea presa tanto de una exagerada fijación con la herencia política y económica de la dictadura, como de un excesivo localismo que, al sobredimensionar las particularidades del caso chileno, impide apreciar sus afinidades con fenómenos más extendidos y mejor estudiados. El abandono de esta concepción del poder constituyente es, así, un primer paso para entender mejor el carácter de la así llamada ‘crisis constitucional’ y del proceso de cambio constitucional que Chile enfrenta. Es más, como se muestra en este artículo, el concepto de descomposición constitucional ofrece una perspectiva más apropiada para entender y discutir la experiencia constitucional chilena.