Constituent Power : A. Kalyvas
“Democratic theory,” Schmitt argued, “knows as a legitimate constitution only the one which rests on the constituent power of the people.”92 Karl Marx had already expressed this view in prescient terms. “Democracy is the solved riddle of all constitutions,” he claimed, because,
In a democratic regime, legitimacy depends on how inclusive, free, and equal participation is during constitutional politics. Precisely because this concept of sovereignty recalls the normative ideal of political autonomy at the center of modern democratic theory, it points to a distinctive theory of political legitimacy, which focuses primarily on the making of higher law. Participation in the founding defines the modern experience of democracy. It is this primacy of participation over obedience that demands from the subjects of a political order to co-institute it. The constituent power evokes the general value of political autonomy: to be free is to live under one’s own laws. Popular sovereignty qua constituent power re-invents the ancient democratic principle of self-government. It is the explicit, lucid self-institution of society, in Cornelius Castoriadis’ apt formulation.94
At the same time, the relationship between sovereignty and constitutionalism, democracy and law, proves to be dialectical to the degree that the constituent power supersedes the constitutional universality of the instituted society. As Marx insisted, the “constitution is no longer equivalent to the whole” and does not monopolize the political because it corresponds to “only one facet of the people.” For the concept, there is an irreducible political outside of the formal organization of the state.
As the constituent power cannot be absorbed or consumed by the order of the constitution, politics escapes its total constitutionalization and full juridical “objectification.”95 It remains both below and next to the constituted powers as a force of innovation, alterity, contingency, and most importantly, as a democratic presence.96 The idea of the constituent power as the excess of constitutionalism is a reminder that politics cannot be reduced to abstract legality and that democracy exceeds its constitutional forms.
Finally, the constituent power enacts a rupture with theological and transcendent notions of power, politics, and subjectivity. A principle of immanence is present in the constituent power. For instance, this concept of power has always been placed underneath the civil and legal edifice, not above or over it, emanating from the bottom, from the many, those who compose a genuine collectivity. Its various names that designate it—‘the community’, ‘civil society’, ‘the multitude’, ‘the poor’, ‘the plebs’, ‘the commons’, ‘the demos’, ‘the people’—all suggest that, in the last instance, the many are the ultimate foundation of the political, the utter social limit of any politics that survives the dissolution of governments, the disruption of legal systems, and the collapse of instituted powers.
This persistent constitutional externality is due to the immanence of constituent power to social life. It is internal to concrete relations of mutual association, formed by actual pledges and promises; in exchanges, agreements, covenants, and contacts; in corporations, alliances, and federations. The concept is relational and plural and operates strictly on the plane of historicity and immanence. It is profane and material, the affirmation of the powers of this world, of change and contingency, of beginnings and ends, and the recognition that the political world is made by its participants.
Although it is true that during its long history this worldly concept was periodically tainted by elements of political theology, they remained extraneous, later additions, which never coalesced with the conceptual core to become a constitutive part. By the third quarter of the eighteenth century, Hamilton could proclaim in the opening lines of the Federalist Papers “that it seems to have been preserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for the political constitutions on accident and force.”97 Political authority, the grounds of ruling, the government itself, are not inaccessible, beyond judgment and contestation; instead, they are relativized and de-centered, regarded as human, that is, mortal artifacts, without extra-social support, lacking banners of truth or markers of certainty, open to questioning, and thus, provisional and revocable, conditional and frail.
Intractable as it may seem, the concept of constituent power possesses its own logic. Its immanent discursive principles define the democratic content of popular sovereignty, which is both revolutionary and constitutional. This reorientation of modern democratic theory toward the power to constitute initiates a shift from the logic of determination to the principle of self-determination, from immobility to movement, from the One to the Many, from the transcendent to the immanent, from heteronomy to autonomy. It is a shift that marks the modern birth of the democratic project and the “modern social imaginary of autonomy.”98
With the constituent power, democracy exists in the radical event of its self-alteration. It is a politics of becoming, the movement of political transformation and constitutional change. Hannah Arendt, following Machiavelli, described this constituent politics as the “augmentation of foundations . . . this notion of a coincidence of foundation and preservation by virtue of augmentation.”99 The constituent power inaugurates a fascinating, unprecedented exploration into the radical nature of democratic politics, that is, a politics that revisits its foundations and politicizes its origins. Democracy, in short, begins democratically.100
Andreas Kalyvas is Associate Professor of Political Science at the New School for Social Research. He is interested in democratic theory and the history of political ideas from ancient Greek and Roman to modern to contemporary continental political theory. He is the author of Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, Hannah Arendt (2008) and Liberal Beginnings: Making a Republic for the Moderns. Currently, he has oriented his research toward questions of constituent power and radical democratic politics on the one hand and on the overlapping of tyranny and dictatorship in Western political thought, on the other. He is completing a book manuscript provisionally titled Legalizing Tyranny: Constitutional Dictatorship and the Enemy Within, while working on a second one, Constituent Power and Radical Democracy.
92. Carl Schmitt, Constitutional Theory, 143, 112, 120-21, 136-39, and 255-67. To the question, “does the people have the right to make a new constitution?” Marx “unreservedly answered in the affirmative, for a constitution that has ceased to be the real expression of the will of the people has become a practical illusion.” Karl Marx, “Critique of Hegel’s Doctrine of the State,” in Early Writings (New York: Penguin Books, 1975), 120.↩
93. Karl Marx, “Critique of Hegel’s Doctrine of the State,” 87.↩
94. Cornelius Castoriadis, The Imaginary Institution of Society, 369-74.↩
95. Karl Marx, “Critique of Hegel’s Doctrine of the State,” 87, 88, 80, and 90.↩
96. Carl Schmitt, Constitutional Theory, 268-79.↩
97. Alexander Hamilton, “Federalist: no. 1,” 3. Madison concurred and explained “the improvement made by America on the ancient mode of preparing and establishing regular plans of government” as “a revolution by the intervention of a deliberative body of citizens.” James Madison, “The Federalist: no. 38,” 235 and 234. From the seventeenth century on, the term constitution came to designate a written document and a set of explicit superior, higher, fundamental legal norms and procedures instituted by human beings in opposition both to customs or conventions and to a transcendental natural law. Gerald Stourzh, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century,” in Conceptual Change and the Constitution, 43-44.↩
98. Cornelius Castoriadis, The Imaginary Institution of Society, 135-59 and 353-68.↩
99. Hannah Arendt, On Revolution, 201 and 202.↩
100. Today, with the project of a European constitution facing major challenges, the problem of democratic foundings is topical again. Similarly, the American appropriation of constituent power to establish new regimes demands the elaboration of a critical discourse against the democratic deficit of imperial attempts at global command. The democratic concept of popular sovereignty as constituent power prescribes that not any act can claim to be constituent and not any actor can contend to be a founder, even if the actor and the act have been successful, that is, effective in creating a new political order. Should a person or group appropriate the power to constitute a legal order at the exclusion of all those who will be its addressees, the government should be regarded as invalid, the result of an act of usurpation. Such an act is undemocratic, a repressive command, an expression of coercive imposition. As Friedrich correctly observed, “To make the constitutional decision genuine it is also necessary that it be participated in by some of those who are being governed as contrasted with those who do the governing. This differentiates such a constituent act from a coup d’ état. Carl Friedrich, Constitutional Government and Democracy, 128. ↩