Concept Of Constituent Power Research Articles

Constituent power: From Schmitt to Kantorowicz—Afterword to the Foreword by Sergio Verdugo

Abstract 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.

Who, the people? Rethinking constituent power as praxis

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.

The Invisible Hand of History: Governmentality, the Providential Machine, and Historical Materialism

The article is devoted to one aspect of the genealogy of Soviet governmentality. Michel Foucault, who elaborated the original theory of different types of governmentality, rejected the idea that socialism could arrive at its own practices of management. From his point of view, real socialism ties into the already existing police and liberal versions of governmentality. The “police-administrative” aspect of politics in socialist countries is well known, but its liberal component is only beginning to be systematically studied. In the theoretical canon, a revolutionary project nevertheless comes close to a liberal one: the Marxist criticism of bourgeois political economy shared the same epistemes with it. Some interpreters assume that this commonality also extends to concepts of history, that both Marxism and liberalism see economic rationality as a driving force in the historical process. Economic governmentality can be interpreted not only as a peculiar, historically determined disposition of power but also as a principle —both ontological and epistemological — that governs history itself. That interpretation was disputed by the most prominent Marxist philosophers. In particular, Walter Benjamin and Louis Althusser criticized social-democratic “economism” and “progressism” as they rehabilitated the key concepts of sovereign policy. “Intervention,” “state of exception,” “the exception becoming the rule” — all these concepts refer not to regulation by policing practices but precisely to the model of sovereign decision. Any such revival of sovereignty in liberation politics is certainly problematic, especially when both sovereignty and governmentality belong to the same “providential machine” of theological “oikonomia” as recent studies by Giorgio Agamben have made clear. The article points out the paradoxes in suspension of the “laws of history” by the sovereign using the example of the debate among Soviet historians (which was studied in depth by Andrey Yurganov) about the true nature of the Russian late medieval state. In conclusion, the author analyzes Antonio Negri’s concept of constituent power as a force that can suspend the operation of the providential machine.

Las claves conceptuales del debate constitucional chileno: poder constituyente, legitimidad de la Constitución y cambio constitucional

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.

Between Constituent Power and Political Form: Toward a Theory of Council Democracy

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.

Sièyes and Marx in Paris

Work occupies a central place in most people’s lives, yet a secondary one in most of political philosophy. This article attempts to show the negative theoretical consequences of this neglect by taking the example of the concept of constituent power as it appears in the writings of Emmanuel Joseph Sieyes and Karl Marx. Both authors conceived it as made up of the working classes. This, however, makes them both run into the same paradox: how to politically represent a class that is characterised by a non-political activity – work? I argue that neither of them gives a satisfactory response since both rely on an implausible account of objective class interests based on fragile grounds. I conclude by showing that the political representation of workers is a theoretical and practical problem that the concept of constituent power is unable to resolve.

Public Administration and Constitutional Affairs Committee on the role of Parliament in the UK Constitution Inquiry

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.

From constituent to destituent power beyond the state

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 Praise of Rebellion: Constituent Power and Dissent in the American Revolution

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.

Against reconciliation: Constituent power, ethics, and the meaning of democratic education

Starting from autonomist theorist Antonio Negri’s concept of constituent power and from decolonial philosopher Enrique Dussel’s notions of obediential power and the ethics of exteriority, this study outlines key principles for democratic education in the present. The article contrasts these philosophical starting points with the work of John Dewey and offers a critique of his theory of democracy, showing that a critical conception of democracy should begin from the emphasis on relationality and collaboration that Dewey shares with Negri and Dussel, but should be developed in a way that is sensitive to the insurrectionary imagination and ethics that are foregrounded in the latter theorists. Specifying these emphases for the educational context, the author argues that we should rethink democratic education in the first instance in terms of trauma, rather than reconciliation; that we should look past familiar senses of criticality toward an affirmation of the agency of students and communities; and that we should center revolutionary desire within the framework of a pedagogy of longing.

The return of constituent power: A reply to Mattias Kumm

This comment takes issue with Mattias Kumm’s original and ambitious attempt to recast the concept of constituent power in thoroughly normative terms as a way of extending its significance from the national to the transnational domain. It argues that Kumm’s approach, by treating actually emergent patterns of transnational political consciousness as irrelevant to our understanding of the normative impetus of transnational constituent power, neglects constituent power’s modest but vital role in providing a base point of orientation in the development of collective forms of self-recognition and self-projection. It follows that Kumm’s thesis cannot satisfactorily account either for the motivational basis for transnational legal and political authority or for the appropriate division and interplay of jurisdiction between national and transnational constituencies. A better approach to questions of the relationship between state-centered legal and political authority and cosmopolitan justice would start from a firmer sense of the gap between the actual and the ideal, of the significance of that gap, and of the difficulties and possibilities attendant upon efforts to bridge that gap.

Constituent power and people-as-the-governed: About the ‘invisible’ people of political and legal theory

AbstractThe 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.

Constituent Power on Trial: Extra Constitutionem Nulla Salus.

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.

Constituent Power beyond the State: An Emerging Debate in International Political Theory

In this review article, I suggest that the books under review should be conceived of as trailblazers of an emerging debate in international political theory. They all innovatively apply the concept of constituent power to the international realm and thereby contribute to establishing a new principle for the democratic legitimacy of international institutions. I argue that we should aim to develop a systematic theory of constituent power beyond the state because such a tool could considerably enhance the analytical categories of our research on democratic legitimacy beyond the state. Furthermore, I propose research questions for this new field of study, concerning conceptual, methodological and institutional aspects, and in turn apply these to the different conceptions of an international pouvoir constituant presented in the volumes under review in order to discuss their strengths and weaknesses.

Contemporary constitutionalism and the dialectic of constituent power

AbstractThis article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

The Treaty of Waitangi as an Exercise of Māori Constituent Power

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.

At the Origins of Constitutional Review: Sieyes' Constitutional Jury and the Taming of Constituent Power

Even though he is mainly known for his concept of constituent power, Sieyes was one of the first constitutional theorists to ask for a guardian of the constitution which closely resembles contemporary constitutional courts. This article reconstructs the main tenets of his proposal, puts them in the larger context of his constitutional theory and then assesses the constitutional nature and functions of this institution. The judgment is mixed: as an organ, Sieyes’ constitutional jury is a hybrid institution, neither a real third chamber nor a full-fledged constitutional court; however, its functions not only are a clear anticipation of the control of constitutionality, but are also intended to tame constituent power and to protect the rights of man in case of legal gaps.

Between Constitutional Mo(nu)ments: Memorialising Past, Present and Future at the District Six Museum and Constitution Hill

This article explores the powers and potentialities of imaginations of political community at the site of the museum in contemporary South Africa. Taking the District Six Museum (Cape Town) and Constitution Hill (Johannesburg) as the empirical backdrop, I explore the ways in which memorialising practices at these sites bolster or deflate the exaltation of the post-1996 constitutional moment. This argument aligns closely with contemporary discussions by South African constitutional theorists about the role of monumentalism and counter-monumentalism. Indeed, I argue that memorialising techniques employed at the District Six Museum offer a practice of memory-making that resists the fixed and limited boundaries proffered by the new South African constitutional discourse exalted at Constitution Hill. However, my critique does not include a call for a reform of the latter. Instead, I argue that the continuation of monumental memory practices at Constitution Hill, in juxtaposition to counter-monumental practices at District Six, serves a key role in revealing the limits of fixed notions of law and subjectivity in imagining past and future political communities. Drawing on Antonio Negri’s concept of constituent power, I argue that the juxtaposition of monumental and counter-monumental memorial practices exposes the illusion of the division between transcendent Power (potestas) and immanent power (potentia). Finally, I turn to Emilios Christodoulidis’ conception of ‘strategies of rupture’ to consider ways in which this contradiction might be made to ‘persist’ through the site of the museum. Indeed, if the goal is to illuminate the illusion of transcendent power, the juxtaposition of memorialising practices between the two sites (a museological form of ‘tapping of contradiction’) may serve as a platform for the truth of constituent power to be realised.