Abstract
AbstractIn this article, I bring together three recent ideas from political theory and constitutional law. The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte. Complex polities such as supra-state federations should be understood as constitutional entities that combine two or more authorizing subjects. The default “mixed” conception is that of dual sovereignty, split between the federations’ member collectives and member individuals. The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power. The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum. I contend that, at a minimum, sovereignty referendums, especially lost ones, should be understood as strategies to bring about, shift or complement constituent powers, in achieving compound or mixed sovereignty. Finally, I venture into some ideas about the criteria of legitimacy for such endeavors, in distinguishing the activation of constituent powers from their articulation and exercise.
Highlights
The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte
The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power
The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum
Summary
I use the term “federation” in a broad sense. Some states are federations, but federations of states (féderation, Bund) are not themselves states.[6]. Where a federation of states historically develops into a state, its people absorb the respective constituent powers of the former units.[7] This shows that monism is not so much committed to stable and immutable assignments of constituent power, but rather to the view that there exists one and only one bearer of it at any given moment in time. The single unified citizenship status, manifested in political and other basic rights that flow from it, is crucial for the existence of a pouvoir constituant mixte It must be admitted, that the reconstructive method is both a strength and a weakness of recent writing on constituent power in that it neither allows for causal explanation or prognosis, nor does it commit to normative evaluations of polity transformation on the magnitude of Brexit. It is hard to see how one could use the method to advertise full-scale constitutional revision, and not at all how to argue for legitimate polity change
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