The Owl of Minerva: Constitutional Discourse Before its Conclusion

Abstract

The rational conception of popular sovereignty that we inherited from the bour geois revolutionary tradition introduces a mute principal. The people would neither speak nor act if it were not for a legal structure that allows for the adoption of general and individual legal acts. For its realisation, popular sovereignty, ration ally understood, presupposes such a legally structured form. It is called a constitu tion. The constitutions legal structure is the product of a constituent power, which can also only be exercised with the aid of legal constructs, such as conventions, constituent assemblies or referenda. It is with the aid of such devices that people have come to adopt constitutions.1 The constituent power is for human practice what the activity of the thinking subject is for experience. Therefore, any constitutional doctrine that aspires to take seriously the distinction between pouvoir constituant and pouvoir constitue formulates an equivalent of transcendental philosophy for the political realm. While the rele vant type of analysis, where knowledge is concerned, is about reconstructing a priori conditions under which something can be validly known,2 constitutional doctrine explores how it is possible that certain acts ?judgements or instances of coercion ? can validly claim to bear the imprint of the people. Nothing minor is at stake here. According to one of the most elementary pre cepts of political modernity, private autonomy is possible only if, and insofar as, it is mediated by public autonomy. Accordingly, one is free only if one can regard oneself as the author of the laws governing ones life. We happen to share our world with others. We need to concede, then, to every other inhabitant of this space the same inherent right of self-legislation. In other words, the realisation of private autonomy ? leading a free life ? presupposes collective self-determination. For its own realisation, such self-determination depends on drawing the line between the constituted and what constitutes. A people need to establish rules according to which they determine, by taking one step after another, what they want collectively. This is not a necessary truth. But it is reasonable to assume that, were it not for this distinction, collective autonomy would materialize only