Constituent Power : A. Kalyvas

By contrast, Sieyès’s attempt to reduce the concept to a national homogenous and organic subject, “la Nation,” understood as a pre-political community inhabiting a normless state of nature, proved to be more successful.⁶⁹ By doing so, he inaugurated the doctrine of national sovereignty. As he famously stated,

the constituent power can do everything in relationship to constitutional making. It is not subordinated to a previous constitution. The nation that exercises the greatest, the most important of its powers, must be, while carrying this function, free from all constraints, from any form, except the one that it deems better to adopt.⁷⁰

There is, however, an important unresolved tension in Sieyès’s famous definition. Selectively blending elements from Rousseau’s and Hobbes’ political thought, he praised the constituent power’s instituting and revolutionary nature even as he juridified it into a purely legal force: “Its will is always legal, it is the law itself.” The constituent power becomes the general national will. Thus, on the one hand, he recognized the constituent power as free, unbounded by constituted norms, the extra-legal source of all legality, while on the other hand, he treated it as a juridical concept, with a fixed identity, always already mediated by representation.⁷¹ This ambivalence that resulted in undermining the key constituent/constituted distinction he had once formally endorsed played out politically in the self-authorized Constituent Convention (1789-1791) and the popularly elected National Convention (1792-1795) with pernicious effects.

In the end, Sieyès’s version not only displaced and defeated Condorcet’s democratic contribution but it also made possible the subsequent national-plebiscitary exploitation and populist disfiguration of the constituent power.⁷² With the French Revolution, the concept, caught in the realm of representation, became entangled with intricate logical paradoxes and puzzling legal formulations that produced politically suspicious appropriations and polemical refutations. Thus, in 1830 François Guizot asserted that “this power anterior, superior, and outside the Charter, that is to say, the constituent power, sovereign and absolute . . . was like a poison that had mingled with all goods and with all expectations.” Likewise, in 1842, he vilified the constituent power because,

If we pretend that there exists, or should exist, within society, two powers, one ordinary and the other extraordinary, one constitutional and the other constituent, we say something insane, full of dangers and potentially fatal . . . Be calm, gentlemen, we, the three constitutional powers, are the only legitimate and legal organs of national sovereignty. Beyond us, there is nothing but usurpation and revolution.⁷³

During the nineteenth century, in North America and Western Europe, the constituent power became misappropriated, domesticated, neutralized, or belittled. Its gradual absorption by the constituted order not only deprived it of its democratic and revolutionary attributes, but also degraded it into an abstract indeterminate ideology, malleable, at the mercy of ruling elites vying for power. Its impact, however, began to be felt elsewhere, in the anti-colonial independence movements of South America and the Caribbean, and in the Balkan corner of southern Europe, moving eastward into the Ottoman Empire.⁷⁴

These spatial trajectories suggest that concepts have histories and geographies. The political history of the constituent power became almost global in its reach. In fact, the idea that the final power to establish and alter the framework of government belongs to the people, in their sovereign capacity, to erect their own constitutions, unbound by prior instituted norms, has deeply marked the democratic, insurrectional, and anti-colonial consciousness of political modernity.

^{69. Emmanuel Sieyès, Qu’est-ce le Tiers état?, ed. Roberto Zapperi (Geneva: Librairie Droz, 1970), 180-91.↩}

^{70. Emmanuel Sieyès, “Reconnaissance et exposition raisonnée des droits de l’homme et du citoyen,” in Orateurs de la Révolution française: Les Constituants: Vol. 1, ed. François Furet (Paris: Bibliothèque de la Pléiade, 1989), 1013 (emphasis added).↩}

^{71. Emmanuel Sieyès, Qu’est-ce le Tiers état?, 180 and 184-86.↩}

^{72. On becoming Emperor in 1804, Napoleon declared that, “I am the constituent power.” Correspondance de Napoleon I: Vol. 3 (Paris, 1859), 314. However, it is under the rule of his nephew Louis-Napoléon Bonaparte that the constituent power was converted into national plebiscites from above and turned into a proto-populist instrument of ruling that became almost synonymous with Bonapartism.↩}

^{73. François Guizot, “L’esprit d’insurrection est un esprit radicalement contraire à la liberté,” in Discours à la Chambre des deputes (29 décembre 1830) (emphasis added); François Guizot, Le Moniteur universel (20 Août 1842), 1807.↩}

^{74. The modern rediscovery of democracy is anti-colonial. It predates the age of world conquests but, most importantly, it challenges normatively and analytically any attempt to impose a political order on those who do not participate in its establishment and institution. In fact, five centuries of Western imperial attempts to appropriate space demands the elaboration of a critical discourse, such as the one provided by the constituent power, to understand and oppose the democratic deficit of such imperial discretionary attempts at global command. In this sense, the doctrine of the constituent sovereignty of the people is deeply anti-imperial and anti-colonial at its core.↩}