Constituent Power : A. Kalyvas

Second, the concept also consists of a generative principle. By underlying the second component of the verb to co-institute, theories of the constituent power saw in sovereignty a creative form-giving power. Popular sovereignty is presented in its instituting capacity, with the faculty to ‘instaure’ new political orders, to bring into being novel constitutional forms, to enact new beginnings. Sovereignty establishes political and legal orders and determines constitutional forms. In a word, it is a productive power, often portrayed as the extra-legal source of all legality. This positing aspect of the constituent sovereign is fully captured by Schmitt’s definition of sovereignty as a “founding power” (die begründende Gewalt).80 The second immanent principle of the concept of constituent power is positive and generative, a productive and instituting norm.

Correspondingly, the power to constitute pertains to relations of mutual association and self-constitution. The subject of the constituent power is not prior or external to the act of constituting. Rather, it constitutes itself as it constitutes for itself.81 By framing the political forms of its collective existence, it also produces its own public identity.82 This process of self-formation is immanent to the degree that the constituent power makes both the subject and the object of politics in the absence of an antecedent, external causality.

It is best captured by Althusius’s definition of constituent politics as “symbiotics,” that is, as a horizontal practice of freely associating and dissociating with others, the forming of a commonality through reciprocal promises and pledges for the sake of “mutual communication of whatever is useful and necessary for the harmonious exercise of social life.”83 For the concept, the people are not a natural, homogeneous unity credited with an organic collective selfhood. Rather, they constitute a combined, artificial body, formed outside the instituted commonwealth, inclusively, and vested in common with certain “things, acts, rights, privileges, interests.”84

The concept, fourthly, consists of a revolutionary principle.85 It is forged during extreme situations of crisis, conflict, and transformation, designed for resistance and revolution, an exhortation to rebel. It is the principle of disruption: self-authorized, unruly, against the fixity and permanence of the statist nomos. There is here a strong “desire for alteration.”86 The concept indicates discontinuities and ruptures in the constitution of the political, it ponders alterity and otherness against legal closure, and is attentive to accelerated temporalities with sudden unpredictable and contingent outcomes. Theories of constituent power expand the boundaries of politics as to include its own foundations and beginnings. Since Marsilius’ original formulation, the people arrive at the moment of a rupture, staging a dispute, in times of exception, to constitute anew its political existence and to renew its constitutional identity.87 For the modern reinvention of democracy, popular sovereignty is revolutionary.88

As surprising as it may sound to some, this revolutionary principle coexists with the constitutional dimension of the concept. Democratic revolutions are constitutional, that is, moments of popular sovereignty and genuine constitutional making. The constituent power is certainly one of the main foundations of modern constitutionalism and public law. It consistently treats politics in terms of constitutional politics; the constitution is understood politically and politics, in turn, is analyzed constitutionally, thereby bridging the unconvincing and politically suspicious distinction between politics as the field of factual power and the constitution as the realm of pure normativity.

Any meaningful and compelling distinction between higher, ordinary laws in fact presupposes the constituent power of the people. This distinction, which corresponds to one of the main principles of modern constitutionalism, emanates from popular sovereignty: the people are sovereign by virtue of their power to constitute.89 The fundamental constitutional law, “the law of lawmaking,” enjoys higher and greater legitimacy than normal legislation because it is a sovereign expression of constituent power.90 This is the modern idea of democratic legitimacy and the democratic foundations of the constitutional state.91

80. Carl Schmitt, Die Diktatur, 134 and 137-38; Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker und Humblot, 1993), 21 and 23-24. Accordingly, the French constitutional scholar Maurice Hauriou has described the constituent power as “a founding legislative power.” Maurice Hauriou, Précis de droit constitutionnel (Paris: Sirey, 1929), 246.

81. Sheldon Wolin, “Collective Identity and Constitutional Power,” in The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins University Press, 1990), 8-31.

82. Antonio Negri, “Political Subjects: On the Multitude and Constituent Power,” 109-10.

83. Althusius, Politica, 17.

84. George Lawson, Politica Sacra et Civilis, 24.

85. Thomas Paine, “Common Sense,” 42 and 52; “The Last Crisis XIII,” 348-54; Thomas Paine, “Rights of Man,” 512-13, 536-40, 547-51, and 572-79; Thomas Jefferson, “Letter to James Madison (January 30, 1787)” and “Letter to Stephens Smith (November 13, 1787),” 107-11.

86. George Lawson, Politica Sacra et Civilis, 227.

87. Even contemporary liberal thinkers have come to realize that democratic legitimacy presupposes a break with the inherited legality. John Rawls, for instance, has acknowledged that the “constituent power of the people sets up a framework to regulate ordinary power, and it comes into play only when the existing regime has been dissolved.” John Rawls, “The Idea of Public Reason,” in Political Liberalism (New York: Columbia University Press, 1993), 23.

88. Pierre Rosavanlon, “Revolutionary Democracy,” in Democracy Past and Future, ed. Sam Moyn (New York: Columbia University Press, 2007), 79-97; Sheldon Wolin, “Norm and Form: The Constitutionalizing of Democracy,” 29, 37-41, 47-48, and 53-57.

89. For a detailed distinction of this point, see Raymond Carré de Malberg, La Loi, expression de la volonté générale (Paris: Economica, 1984), 103-39.

90. Frank Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999), 48.

91. According to Maurice Duverger, “It is the constitution that derives its authority from the constituent power and not the constituent power that derives its authority from the constitution.” Maurice Duverger, “Légitimité des gouvernements de fait,” Revue du Droit Publique (1948), 78.

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