The modern idea of democracy says the political order should reflect the âvoice of the peopleâ and assure this capacity via law. But what happens when people demand changes that threaten to overturn the political order itself? If a political system provides the medium through which democratic preferences are transmitted, then pulling down an existing order amounts to demolishing the structure that makes collective voice discernible. Politics would then be like shouting in a vacuum; no matter how many were shouting, it would be equally ineffective. Yet the voice of the people is precisely the element counted on to fill the vacuum and restore the mediating function of politics. So how does the vox populi dictate its own transfiguration?
This impasse forms the paradox of constituent power â the collective power of the people precedes representative politics yet remains inarticulate without it. Politics cannot be legitimate without the voice of the people, but as soon as it is mediated into existence, legitimacy issues ensue. While it seems like a formula for paralysis, from a historical point of view the dynamic looks quite different. Modern states and regimes regularly use an announcement or communiquĂŠ to mark their arrival in the political world, and most look back on key authorizing moments. Despite its paradoxical qualities, a declaration of independence has become the default hallmark of newfound sovereignty in the modern era (Armitage 2007). A properly authorized declaration â meaning one that is accepted by its own populace and the wider international order â therefore looks like the answer to the question of renewing the political order in speech.
But there are at least two problems with this solution. The first is that declarations of independence are not generally considered constitutional documents. Assuming a constitution represents the core of a political order, then writing one should probably be considered the real founding moment. Indeed the famous âWe the Peopleâ expression often associated with constituent power appears not in the American Declaration but in its constitution, written a decade later. The Declaration in fact begins with a reference to time, reading: âWhen in the affairs of man.â A declaration of independence might mark the end of the old system then, signaling a time for change, but the real action is still pending. Is it fair to regard such a document as a pivotal expression of constituent power? The declaration of independence has an ambiguous relationship to constitutionalism in part because law, by its very structure, externalizes the question of beginnings, either by excluding it entirely or by assigning it to an exogenous force. So while constitutions struggle to account for their own origins, declarations of independence have, at best, incomplete legal qualities.
This leads to the second reason that declarations of independence are a deceptively simple answer to a deceptively simple question. They are generally taken to be a kind of performative utterance, yet performatives play upon prevailing structures of power for their operation, making them an awkward fit for an operation conducted in the absence of such authority. Since performatives cannot provide instantaneous authorization and since they may actually signify the absence of a constituting subject, they are linguistically and politically unsuited to the conditions that founding involves. Founding speech, in contrast, is generally thought of as originating outside of prevailing structures of power, provides a source of immediate authority, and signals the presence of an especially significant subject. So what explains the readiness to accept declarations of independence as a perverse form of performative â one that apparently works by not working at all? More to the point, if they have questionable legal provenance and prove a distinct misfit in terms of linguistic coherence, whatâs actually happening in a declaratory founding?
Constituent Power
The theory of constituent power that made the people an inexhaustible font of political authority in periods of change may date back to English constitutional crises of the seventeenth century (Loughlin 2008, 27) or even to a Machiavellian encounter between fortune and virtĂš in the sixteenth century (Negri 1999, 60). The most celebrated statement of the theory, articulated by AbbĂŠ Sieyès (1987) during the French Revolution, does not so much account for, as name, a form of popular sovereignty that stands behind and prior to political order. The people in Sieyèsâ account are more than just âpeopleâ in the sense of a populace; they are a collective entity that takes the form of a nation or âpeopleâ understood as a singular noun (Canovan 2005). By communicating its wishes Sieyèsâ people-as-constituent-power provides the originary legitimacy behind political authority. When ordinary politics falters, a population falls back upon this primordial and indestructible form of political life from whence the process can begin again. The defining feature of the constituent power, then, is that it survives.
Questions around constitutionalism, and frictions between âthe peopleâ and the law since the 1990s, have brought Sieyèsâ formula back to the fore in legal and political theory. A wave of constitution-making that followed the fall of the Soviet Union renewed questions around constituting authority. The idea that with the end of the Cold War history had arrived at fulfillment in a liberal order (Fukuyama 1989) meant there was only one fit language for the vox populi to speak and it turned out to be a language best spoken by legal and political experts: liberal constitutionalism. But if liberalism ended the twentieth-century triumphant, the achievement was fleeting. The rise of non-state actors â from terrorists to supra-state conglomerations and global industry â closed in on the sphere of political authority associated with the nation-state until sovereignty itself was in doubt, undermined from below by decentralizing forces like sub-state nationalism and from above by the increasingly globalized dimensions of everyday life. If the popular sovereign could only speak one constituent language in this new order, it could say less than ever before.
Yet as persistent change placed fundamental structures in play, questions around authority and authorization became unavoidable. Sieyèsâ âpeopleâ proved reluctant to resign their position of authority and unwilling to accept the role of silent partner in the project of liberal ascendancy. Without adequate popular credentials, new political structures accumulated a deepening democratic deficit (ColĂłn-RĂos 2012, 2), a problem that manifested in repeated EU treaty defeats and the rise of euroskepticism (Startin and Krouwel 2013; FitzGibbon 2013), abortive attempts to renew constitutions (Russell 2004), and the rise of populist politics (Mudde 2004; Roodujin and Akkerman 2017). But with power increasingly locked down into domestic law and international regulation, popular consultation among restive populations looks like an increasingly ill-advised gamble, making the missing legitimacy element ever more difficult to address.
While he gave only the broadest outlines of the concept, Sieyès suggested a special assembly could meet the requirements of constituent power, which he insisted âhad to be exercisedâ through representatives (Sieyès 1987, 173; Tuck 2015, 164). Yet at the heart of Sieyèsâ claim was the idea that no body smaller than the national population could be taken as a genuine manifestation of constituent power, revealing a dangerous tension between the conceptâs populist core and its representative practice. Constituent power, it turns out, solves the problem of democratic authority and authorship at the cost of daunting problems of mediation. Embedded in the representational concept are problems of time. Even if an entire population could be assembled or represented, no population remains static. The people is more than the sum of its living electors, however comprehensive (Tuck 2015, 242). Constituent power thus invites a common complaint made against social contract theory â that it privileges the wishes of a single generation. But thereâs an important difference to be noted. In social contract theory, diverse individuals compact together to create a political unity. In the case of constituent power, unity is taken as preceding the action, which leaves something of a mystery. If political practices and mediating representative institutions are the creation of constituent power, then how can a collective express itself before their arrival? Indeed, can a demos, however primordial, even exist in their absence?
Jacques Derrida framed this question with regard to the American founding by asking simply, âwho signs?â its founding document. His answer â that âthe signature invents the signerâ in an act of âfabulous retroactivityâ (1986, 8, 10) â does little for the intelligibility of the concept. If it takes a constituent power to constitute (in the sense of render or make present) the all-powerful constituent power, then we face a self-defeating incongruity. And if the success of this operation ultimately rests on adaptive self-delusion, then the temporal and representational challenges surrounding the concept remain entangled in a single ugly knot. The difficulty in representing the constituent power therefore lies at the heart of the conceptâs credibility. The credibility issue must be defused before the idea of constituent power can be useful in addressing current crises in political authority. Much of the new work on the topic is therefore focused on how this expressive element works. Two thinkers have been especially influential in the recent revival, shaping the direction of the debate around two poles, one focusing on populist leadership, the other on popular engagement.
Carl Schmitt favored a purist idea of the constituent power as a pre- or extra-legal force. For Schmitt, problems of representation were solved through leadership, which channeled the national people as a kind of secularized god into a political order centered on one ultimate decision-maker (2005). Against the Schmittian view â although she is sometimes read alongside him (Kalyvas 2008; Wenman 2013) â Hannah Arendt argued that the human capacity for absolute beginning needs no special representation but does have a characteristic form of expression. It appears in the form of spontaneous action and finds stabilization through grassroots communicative institutions of political life, such as the small republican-style councils that preceded the American Revolution (Arendt 1963). The only representational system politics requires, in an Arendtian view, is that which we provide for ourselves by living and acting among others.
Debates in American constitutionalism have largely trended in a Schmittian direction, leading to an emphasis on exceptionalism, populism, and personal leadership that tends to enlarge executive authority (Arato 2000, 1746). Arendtâs participatory politics, in contrast, leans toward a more democratic solution (Wenman 2013), although her celebration of pure beginning has been criticized for minimizing the violence and contingency that attends anything revolutionary (Honig 1991). Indeed both thinkers mystify the founding moment to some degree. Political beginning is for Arendt a âriddleâ (1971a, 1, Thinking:214) and for Schmitt a kind of âmiracleâ (2005, 36). The problem of Sieyèsâ representational mechanism has not been solved in these accounts so much as forced into a tight singularity. Despite its mystification and intensification, however, one element remains common between these accounts â that of voice. Decisionist or democratic, to become manifest constituent power must first find its voice.
By expanding Sieyèsâ work in two quite different directions, Schmitt and Arendt refined the representational issue into a new set of problems focused around time, participation, and law. But efforts to work on these problems have led to fresh questions. Understood as an extraordinary event that breaks the temporal order, constituent power becomes difficult if not impossible to evaluate since, by definition, normal rules are suspended (Kalyvas 2008; Tuck 2015). Yet the closer a theory approaches the ideal of constant presence and immediate expression, the more it generates its own opposition (Negri 1999, 304), leading some to conclude that constituent power must come to terms with constitutionalism (ColĂłn-RĂos 2012, 112). But institutionalizing this force carries its own dangers, including constraining the possibility of radical change (Wenman 2013). If some constitutionalist and democratic readings of the constituent power risk pacifying necessary sources of transformative democracy, populist formulations run an equally troubling risk of dangerous romanticism because the people-as-singular-noun exists only at the level of political abstraction. Real people may really assemble, of course, and offer preferences of all kinds. The abstraction comes in when this cacophony is taken as a common, transgenerational voice. The multitude is real enough, but hearing the expression of constituent power from a multitude takes some form of aggregation or mediation, and that has yet to be accounted for. By insisting that a representational instrument could be created, Sieyès averted the problem of abstraction at the last moment, without addressing how this representation can be rendered legitimate.
One candidate for this mediating force has been the idea of law. In Schmittâs view, this works in certain ways but eventually comes up short until it is necessary to work beyond it, something only a powerful leader can do (2005, 66). But an executive empowered to act beyond the law creates the danger of a runaway mechanism capable of undermining both law and constituent power and destroying the people that put him in place. Keeping constituent power vital therefore requires caretaking the interaction between law and those it governs (ColĂłn-RĂos 2012). The problem with a hybrid legal-political solution to constituent power, however, is that law inhabits a different conceptual order than politics â one centered on coherence and integrity in contrast to politicsâ immersion in pluralism and difference. While politics is constantly coming up against the new and strange (Lindahl 2015, 172), the tendency is for law to turn inward in pursuit of completeness and may end by excluding constituent power as something redundant to liberal constitutionalism (Dyzenhaus 2008).
Sieyès maintained that constituent power remains distinct from the constituted power to which it gives rise, meaning it cannot be entirely absorbed into the constitution-making process. If it could, it wouldnât have the capacity to outlast the constitution, and its contribution to the problem of lawâs origins would be null. Only through the assumption that law is without beginning and end can the legal viewpoint be sustained. Constitutions exclude declarations of independence then, not because constitutionalists want to claim the mantle of founding speech, but because thereâs no language for founding â for raw beginning as opposed to delegated and authorized actions â that can be made coherent within law.
Framing founding as constructed doesnât avoid problems either, because we still need to explain how this construction happens if we want to avoid the kind of âEdenicâ thinking that John Seery detects in post-structuralist efforts to engage foundations (1999). Martin Loughlin believes constituent power is simply âmessyâ and distinguished by its capacity to keep open the question of who speaks and for what community (2014, 299, 234), although this still doesnât explain how messiness ensures openness. An account...
