Constituent Power : A. Kalyvas
II. Acts of Resistance
Two and a half centuries after Marsilius’ ‘discovery’ of constituent power, in the aftermath of the 1572 St. Bartholomew’s Day massacre—another time of intense conflict—several French Huguenot writers, known as the Monarchomachs (‘those who fight kings’), renewed this democratic discourse of popular sovereignty in order to defend their radical doctrine of tyrannicide.31 By radicalizing aspects of Marsilius’ philosophy, they brought together active resistance and constituent power to advance their doctrines of sovereignty, and eventually laid the foundations for later theories of rebellion, revolt, insurrection, and revolution.32 With the Monarchomachs constituent power becomes revolutionary.
Active, even violent resistance is treated as a legitimate extra-legal force of political change, rightfully exercised by the people or their representatives in exceptional cases of necessity and self-defense. Relying on Marsilius’ suggestion that the multitude can depose unjust rulers and suspend the law in times of crisis, the Monarchomachs went further in exploring the disobedient and seditious effects of constituent politics and rethinking the conflictual and revolutionary nature of popular sovereignty.
In fact, their rethinking anticipates the right of democratic revolution. The right of a people to disobey, resist, depose, or kill their (tyrannical) rulers derives from their sovereign power to determine the political forms of their common life. Resistance against tyrannical rule is a manifestation of constituent politics and an affirmation of popular sovereignty. The Monarchomachs, in fact, put forward a new justification, based on the democratic logic that “those who constitute one Form, may abrogate it,” that is, on the principle of popular sovereignty, according to which the people as constituent power are prior and superior to the forms they constitute, including kings.33
This collective right that trumps monarchical legality rests on the power of the many to constitute. It offers normative and political validity to the exceptional recourse to legitimate resistance on the part of the people. For the Monarchomachs, it is the sovereign people who decide on the extreme situation of tyrannicide. In this way, they can rightly be credited for inventing the first modern democratic theory of resistance.
The emphasis on the revolutionary excess of constituent power carries a double meaning. On the one hand, it reveals the conditional and authorized existence of all constituted powers. It therefore puts limits on the subjects’ duty of obedience, which is a conditional obligation that depends on the ruler’s performance. Political forms are de-naturalized to the extent that they are regarded as human historical creations, the result of collective action, reversible and revocable, to be amended, transformed, and/or replaced. On the other hand, it argues for an extra-constitutional check on the constituted authorities, a just device for maintaining the reign of law and limiting the dangers of arbitrariness and tyranny.
Thus, rulers are subject to limitations and constraints established by the many in their constituent capacity. The first traces of modern constitutionalism are already visible in this seditious attempt to determine the limits of power and to set up political safeguards against the transgressions of the constituted order. Here, the notion of a limited government, ruled by law appears internal to the democratic doctrine of active resistance, that is, intrinsic to the power to constitute.34
31. The Scottish Catholic jurist William Barclay coined the name ‘monarchomach’ in his polemical pamphlet, De Regno et Regali Potestate adversus Buchanum, Brutum, Boucherium et reliquios monarchomacos (Paris: G. Chaudière, 1600).↩
32. Julian Franklin, Constitutionalism and Resistance in the Sixteenth Century (New York: Pegasus, 1969), 11-12; Antonio Negri, “From the Right to Resistance to Constituent Power,” in The Porcelain Workshop: For a New Grammar of Politics (Los Angeles: Semiotext(e), 2008), 109-26.↩
33. This is Sidney’s classical version, almost a century later, which exemplifies the normative meaning of popular sovereignty based on the power to constitute. It also testifies to its discursive permanence beyond and after the Monarchomachs. Algernon Sidney, Discourses Concerning Government, ed. Thomas West (Indianapolis: Liberty Fund, 1996), 20.↩
34. Julian Franklin, Constitutionalism and Resistance, 37 and 42-45.↩