Popular Sovereign Research Articles

What Is Democracy?

Abstract Modern democracies, including the United States, rely upon three normative elements: (1) rights expressing the dignity of the citizen; (2) law expressing a commitment to public reason; (3) elections as the method of selecting representatives. In each dimension, citizens are to see a representation of themselves as popular sovereign. Morality and law are not matters to be resolved at the polls. Yet, popular opinion, supported by contemporary social sciences, tends to reduce democracy to the third element. On this view, the higher the voter turnout, the better the democracy. In an age in which we worry as much about majority, as minority, tyranny, this view is not credible. A mob at the polls is still a mob even if it is a majority. An exclusive focus on quantification represents a profound misunderstanding of the meaning of democracy. Democratic politics includes an interpretive practice across the moral and the legal dimensions. It relies as much on persuasion as on proof. Recovery of a vibrant democratic life requires a renewed appreciation of a public humanities, not as a pastime but as way of living.

Https://vestnik.zqai.kz/index.php/vestnik/article/view/1413

The presented article gives the wording and justification of the methodological understanding of constitutionalism as the main paradigm of the vector of development of modern Kazakhstan in the context of the reform of the Constitution. The study considers the relationship of domestic constitutionalism with the realities dictated by the historical stages of the development of Kazakh statehood, authentication and ambiguity of constitutionalism; partisanship, universality, and a broad public interest in the value of constitutionalism as phenomena; constitutional imperatives and the correlation of legal and moral norms during the establishment of constitutionalism. The relationship between constitutionalism and popular sovereignty in the context of this article is the critical focus of political theory, jurisprudence, and constitutionalism. The authors suggests that the constitution can be more meaningfully understood by adopting a more complex concept of democracy—one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government. It establishes that underlying the bedrock doctrine of the basic structure of the constitution are fundamental questions about the relationship between constitutionalism and popular sovereignty. The article examines theoretical approaches to the concept of legal policy, considers the directions of legal policy and their inclusion in the constitutions of our country, as well as attempts to substantiate the role and influence of legal policy in the field of protecting the rights and freedoms of the individual in constitutional and other aspects, analyzes the historical process of Kazakhstan's acquisition of sovereignty, the formation and further improvement of individual institutions that make up the constructs of constitutionalization. The text is a conscious effort to institutionalize the country's revolutionary experience during its independent formation.

Popular Sovereignty After Brexit

AbstractThe Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty—or the failure to properly institutionalize popular sovereignty in a legal-constitutional form—represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilizing and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus, critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.

Mad Marx? Rethinking Emotions, Euroscepticism and Nationalism in the Populist Left

Much attention has been devoted to how right-wing populists in Europe challenge the consensus on the benefits of European integration, but left-wing resistance to the EU is less discussed. Existing analyses tend to distinguish between three constructions of political community: a postnational EU, the populist right invoking national sovereignty, and the populist left invoking popular sovereignty. However, empirical analyses struggle to find consensus on how left populists relate to the EU, and if they invoke claims to national or popular sovereignty. This article argues that this empirical impasse stems from that populism and Euroscepticism are performative categories and not simply analytical tools, and serve to produce exclusion. There are two dichotomies in this exclusionary frame: emotional populists/rational EU, and the postnational EU/nationalist populists. Through an analysis of Podemos in Spain and the UK Labour Party under Jeremy Corbyn, I show how the lines between the postnational EU, the national sovereign, and the popular sovereign are frailer than previously thought. The article concludes that these categories are less analytically astute than they are politically motivated, and analyses of the populist left in Europe must consider the performative dimension of its key terms.

Did David Murder Saul's Successors in 2 Samuel 21:1-14 and Does It Matter?

A semantic reading of this text alters the structure of the episode as a whole to reveal a story-within-a-story: the death of the seven Saulides and the expiation performed by Rizpah. The purpose of this sub-plot is to point to the perpetrator of the initial crime causing a famine, by presenting an analogous circumstance. By analogy we are directed to the conclusion that David is responsible for the famine after engineering the deaths of Saul and Jonathan. David’s exploitation of the differences between Ancient Near Eastern and Israelite law resulting in seven dead claimants to the throne of Israel, suggests that the episode has been compiled as a rejection of kingship; the centralization of worship, and the promulgation of the law-code. Fundamental to all these, is the rejection of the popular sovereign practice of murdering any potential successors to the throne.

When Sovereigns Stir

Richard Tuck’s recent study of Thomas Hobbes’ famous depiction of the ‘Sleeping Sovereign’ offers a reminder of the 17th century philosopher’s contribution to the political imaginary within which our modern conception of constitutional democracy would later emerge. Central to that imaginary is Hobbes’ distinction between sovereignty and government – anticipating the division between the constitutional ‘rules of the game’ established by the ‘people’ or popular sovereign, and the day-to-day conduct of government under these rules. In these terms, the ‘people’ remain ‘asleep’ except in the event of revolutionary renewal, or, more often, under strict conditions of constitutional amendment. The Hobbesian metaphor, extended to cover the ‘stirring’ of new forms of sovereigntist consciousness and practice, continues to offer a powerful perspective on the strengths and the limitations of a sovereignty-centred approach to the contemporary global political condition. We can illustrate these new stirrings, and how they are related, through the four ‘R’s. The Reassembling of sovereignty refers to how increasingly elaborate and inclusive procedures going beyond the normal menu of amendment techniques are being used today to achieve constitutional settlement or galvanize constitutional change. The Raising of sovereignty refers to new claims or the resurrection of old claims by sub-state or trans-state populations who dispute the present pattern of sovereign authority. The Rationing of sovereignty refers to the process by which certain supra-state entities, such as the EU, seek to split the sovereignty atom amongst overlapping and interacting and so no longer omnicompetent states. Finally, the Reassertion of sovereignty involves the reaffirmation of existing sovereign claims, often in response to and reaction against the challenges associated with reassembling, raising and rationing; and often, too, articulated in populist terms, downplaying many of the protections of political pluralism and individual rights that mark the modern constitutional condition.

Strong popular sovereignty and constitutional legitimacy

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper, I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in Section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet this constraint.

Surrender: An Essay on the Theory of Sovereignty and Alternative Possibilities

Paul W. Kahn, in Sacred Violence, stresses that the popular sovereign of liberal democracy remains sovereign nonetheless, and so the demand for sacrifice maintains a powerful hold on the civic conscience. A distinction in Hobbes’s Leviathan between contract and covenant provides the basis for a critique of the so-called social contract tradition, including its liberal variants, which argues that it persists in the mistake of characterizing as voluntary that which is not, and thus continues to justify a collective fantasy of transcendental authority. If we accept Kahn’s defense of an indissoluble theoretical link between sovereign power and sacred violence in the modern political imaginary, then an effort to move away from this bloody paradigm requires us to conceptualize an alternative to sovereignty or to the violent experience of the sacred or, likely, both. In the effort to re-imagine politics as a realm of freedom and power in direct opposition to sovereignty and violence, I take for granted both Arendt’s understanding of power and her critique of sovereignty; Bakunin’s materialist theory of anarchism and the fertile metaphysical speculations of novelist Henry Miller then provide inspiration for a principle of surrender that may act as alternative experience of the sacred.

Learning from success, learning from failure

The article has several theses. First we propose that there is a new method of constitution-making today, the two-stage, post-sovereign one perfected in South Africa. Second, we admit the path-dependent nature, and difficult pre-conditions, of this method. Third, we maintain that even when the full method is unlikely in a given context, its legitimating principles nevertheless can play a role through international dissemination. We explore that possibility in the context of the projected comprehensive reform of Turkey, and the constitutional revolution in Egypt. It is our belief that in these contexts one can learn both from successes of the new method and also from its failures typified by the Hungarian case that we briefly present. We are unfortunately not optimistic about the success of the new method especially where actors maintain their strong belief in the constituent power of the popular sovereign. This is likely to be the case in revolutions, but can happen in reform or even during the last state of the post-sovereign method itself.

From the ‘Stranger King’ to the ‘Stranger Constitution’: Domesticating Sovereignty in Kenya

ConstellationsVolume 19, Issue 2 p. 248-266 From the ‘Stranger King’ to the ‘Stranger Constitution’: Domesticating Sovereignty in Kenya Mateo Taussig-Rubbo, Mateo Taussig-Rubbo Associate Professor of Law at the University at Buffalo School of Law, State University of New York and a Fellow at the Schell Center for International Human Rights at Yale Law SchoolSearch for more papers by this author Mateo Taussig-Rubbo, Mateo Taussig-Rubbo Associate Professor of Law at the University at Buffalo School of Law, State University of New York and a Fellow at the Schell Center for International Human Rights at Yale Law SchoolSearch for more papers by this author First published: 19 July 2012 https://doi.org/10.1111/j.1467-8675.2012.00681.xCitations: 2Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume19, Issue2June 2012Pages 248-266 RelatedInformation

Torture and the Dream of Reason

The torture prohibition is not just one rule among many. Its status as an absolute prohibition in both domestic and international law suggests that it lies at the very foundation of the rule of law. Yet, the prohibition is oddly discontinuous with other practices of state sanctioned violence. I argue here that the prohibition functions as much as symbol as norm. To explain what it symbolizes, I deploy some of the interpretive methodology Freud used to interpret dreams. The torture prohibition is a kind of waking dream. As with other dreams, we must pierce the manifest content to reveal the unconscious meaning. The prohibition, I argue, comes less from a concern about victims than about torturers, for the right to torture was a claim of the sacral monarch. The affective weight of the prohibition emerges from the relationship of law to sovereignty, and to the violent, sacrificial demand of even a popular sovereign.

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

Private and Public Autonomy Revisited: Jürgen Habermas' Concept of Co-Originality in Times of Globalisation and the Militant Security State

This paper examines the concept of constituent power and constitutional form in Jurgen Habermas' legal philosophy. It argues that a concept of constituent power needs to be embedded in a constitutional theory that can explain the difference between legitimate law and a mere wielding of power. Theories operating with assumptions of a pre-legal and unbound constituent power are either pre-modern or a-historical. While Habermas' theory can convincingly spell out general terms for a legitimate constitutionalisation and legitimate law-making, however, it appears to be at the same time too thin and too thick with regard to two recent transformations of the democratic nation-state: Firstly, it cannot grasp the shift from enabling 'freedom' to upholding 'security' as the central description of the function of the nation-state. This shift has severe implications for the discourse on human rights and their a priori status as constraints on the popular sovereign: the security paradigm seems to trump the notion of inalienable individual rights and replace them with the rule that the end justifies the means. Secondly, the idea of a necessary internal link between public and private autonomy in Habermas' system of rights appears to be unable to explain the emergence of supranational and transnational law outside of a national legal community. In a different reading, however, it can serve as a normative yardstick for existing regulatory structures, and as an orientation for the elaboration of new forms and institutions that may reduce the obvious democratic deficits of supranational and transnational regulation.

Popular Sovereign Versus Government Institution Generated Constitutional Norms: When Does A Constitutional Amendment Not Amend the Constitution?

An elementary principle of constitutional law holds that a constitutional amendment alters or nullifies preexisting and conflicting constitutional provisions. Can we imagine a scenario in which ratification of a new constitutional amendment would leave preexisting conflicting constitutional provisions fully intact, unaltered, and undisturbed? This Article argues that the best understanding of fundamental adjudicatory principles compels us to recognize just such a possibility. The linchpin of the argument lies in the idea that constitutional provisions emanate from two distinct sources, and therefore are of two distinct classes, with one class hierarchically superior to the other. Under the extant constitutional orthodoxy, all constitutional provisions emanate from a single source -- We the People -- either via Article VII, the Constitution's ratification provision, or Article V, the Constitution's amendment provision. A major portion of this Article is dedicated to debunking the orthodox vision. An accurate description must admit that constitutional provisions emanate from two separate and distinct sources -- We the People and ordinary legislatures. Constitutional amendments are especially vulnerable to the charge that they emanate not only from We the People, but also from ordinary legislatures. Rather than directly consulting the popular sovereign, Article V employs state legislative bodies as agents through which We the People purportedly act to ratify new constitutional provisions. When Article V's principal-agent mechanism operates well, the state legislatures ratify amendments reflecting and embodying the popular sovereign's deliberated consensus sanctioning the creation of new higher law principles. In such cases, passage via Article V signals and formalizes We the People's act of constitutional textual norm generation. Principal-agent relationships, however, are always subject to agency problems. When Article V's principal-agent mechanism breaks down the state legislatures ratify amendments over which the popular sovereign has not reached a deliberated consensus, or even ratify amendments contrary to a deliberated popular consensus. In such cases, the formal satisfaction of Article V requirements does not signal an act of We the People. It instead signals the creation of a new constitutional provision by ordinary government institutions -- state legislatures -- which malfunction as agents through which We the People act. For this reason, at least some constitutional amendments are bound to lack a legitimate popular sovereignty pedigree. Once courts acknowledge that constitutional provisions spring from two separate and distinct sources -- both We the People and ordinary government institutions -- straightforward application of the adjudicatory meta-norms that govern all cases in which legal norms conflict leads to three related conclusions: Popular sovereign-generated and legislature-generated constitutional provisions (1) are different in kind, (2) are hierarchically ordered, and (3) when in irreconcilable conflict, the former must always and unconditionally trump the latter, regardless of which norm is of more recent vintage. As such, a preexisting constitutional provision bearing a true popular sovereignty pedigree should trump a conflicting newly ratified constitutional provision which lacks a true popular sovereignty pedigree.

Federal Law and Drug Addiction

The popular sovereign remedy for all crime problems is increased penalties. In recent years this is nowhere better illustrated than in the case of narcotic laws in the United States. Although Federal anti-drug laws are said to be revenue measures, the penalties for violations at present include the possiblity of a death sentence. The average sentence of the Federal offender against these statutes has increased by more than 300 per cent within the last decade, and with the denial of probation and parole many narcotic violators are now being punished more severely than the average murderer. While students of crime

Sufficiency Certification of Initiative Signatures in Oklahoma

The establishment of equitable rules whereby the constitutional rights of affected interests may be protected against arbitrary invasion from laws adopted by the electorate under the reserved legislative powers of the initiative and referendum remains the most important procedural question in the whole field of direct legislation. In reserving the authority to initiate constitutional and statutory measures without the approval or consent of the popular assembly, and to enact such measures through the medium of a popular referendum, the popular sovereign has created a mechanic of legislation coördinate in authority with the legislature. But in erecting barriers against fraudulent and corrupt practices upon the part of those engaged in the initiation of proposed measures, the state constitutions and laws present the possibility of obstructionist tactics by opponents of the proposals and undue delay in the presentation of the measures to the electorates for decision. The recent political imbroglio in Oklahoma over the adoption of an old-age-pensions amendment to the state constitution emphasizes the difficulties of reconciling these conflicting interests.