Constituent Power : A. Kalyvas

In 1573, François Hotman asserted, “that the People reserved to themselves all the power not only of creating, but also of abdicating their Kings.”³⁵ One year later, the French protestant Théodore de Bèze proclaimed the first principle of his new doctrine of legitimate (violent) resistance: “they who have the power to create a king, have the power to depose him,” as they also have “the power to judge him.” This supreme power to judge and overthrow rulers belongs solely to the people because “peoples do not come from the rulers . . . and that peoples accordingly, are not created for their rulers, but rulers rather for their peoples.”

Politically speaking, the people are above the monarch. The right to disobey and resist that the many possess results from the primacy of the constituent subject over the constituted order. It is because the people constitute their rulers that they have the right to resist and depose them. According to Bèze, a people cannot disobey and rebel against an unjust ruler if they did not first constitute him. Therefore, it is the power of constituting that confers to the people the sovereign right to resist.³⁶ His principle is unequivocal: only those who constitute have the right to disobey.

Five years later, in the Vindiciae contra tyrannos, Junius Brutus the Celt appealed to the same principle by further accentuating the elements of self-determination and externality in popular sovereignty.³⁷ He succinctly asserted, following Marsilius and Bèze, that “a people can exist of itself, and is prior in time to a king.” Their collective existence is superior to and does not depend on the state, because they give rather than receive. In fact, the life of the people proceeds immanently as they are capable of living apart from the state. By recognizing the people’s political externality to the instituted forms of government, Brutus exposed their autonomous, extra-institutional life as the sovereignty of the “populus constituens.”³⁸ He reached the conclusion that,

as kings are constituted by the people, it seems definitely to follow that the people is more powerful than the king. For such is the force of the word: one who is constituted by another is held to be lesser; and one who receives his authority from another is inferior to his appointer.³⁹

Brutus, like other Monarchomachs, treats the right to remove and depose any constituted authority and even to kill unjust rulers as derivative, emanating from the sovereign power of the people to constitute. He also anticipated the idea of the constitutional convention when he acknowledged the exceptional “proviso” according to which established rules and procedures of the normal order are suspended because, “should the need arise, either the whole people, or else a kind of epitome of the whole people, would be convened in extraordinary assembly.”⁴⁰

In the same year, George Buchanan proposed a democratic justification of the founding act in his vindication of the right to resist: “a decision should be taken in common in matters which affect the common good of all.”⁴¹ Likewise, the Calvinist jurist, Johannes Althusius, relying on the Monarchomachs’ doctrines, affirmed the same principle of popular sovereignty qua constituent power and provided the clearest formulation yet.⁴² In Politica, published in 1603, he defended active resistance on the grounds that,

It cannot be denied that the greater is that which constitutes the other and is immortal in its foundation, and that this is the people . . . By nature and circumstance, the people is prior to, more important than, and superior to its governors, just as every constituting body is prior and superior to what is constituted by it.⁴³

For Althusius, “the right of sovereignty . . . does not belong to individual members, but to all members joined together and to the entire associated body of the realm.” Sovereign power, therefore, when properly understood as the power to constitute, cannot conceivably reside in any individual or group of individuals less than the whole people. Moreover, as a power that founds/grounds a political and constitutional order, it remains irreducible to and heterogeneous from that order. It is this collective sovereign right that justifies the removal, deposition, and overthrow by the people of the constituted authorities when these become unjust and tyrannical. The exercise of the right of resistance pertains only to the people in their sovereign capacity as constituent power. Althusius, like the Monarchomachs, formulated a democratic theory of resistance based on the primacy of the sovereign power of the many to constitute, that is, their autonomous power of associating “for the purpose of establishing, cultivating, and conserving social life among them.”⁴⁴

^{35. François Hotman, Fraco-Gallia: Or An Account of the Ancient Free State of France (Cambridge: Cambridge University Press, 1972), 82 (emphasis added).↩}

^{36. Theodore de Bèze, “Rights of Magistrates” in Constitutionalism and Resistance, 124, 126 (emphasis added), 104 and 106.↩}

^{37. Junius Brutus, the Celt (most probably Philippe du Plessis-Mornay), Vindiciae, contra tyrannos or, concerning the legitimate power of a prince over the people, and of the people over a prince, ed. George Garnett (Cambridge: Cambridge University Press, 1994), 68-76.↩}

^{38. Brutus, Vindiciae, contra tyrannos, 71, 156, 99-102, 75, and 169.↩}

^{39. Brutus, Vindiciae, contra tyrannos, 74 (emphasis added), 68-74, 92, 94, and 130.↩}

^{40. Brutus, Vindiciae, contra tyrannos, 78 and 82.↩}

^{41. George Buchanan, A Dialogue on the Law of Kingship Among the Scots (Edinburgh: The Saltire Society, 2006), 72.↩}

^{42. Otto Gierke, Natural Law and the Theory of Society, 241, 244, and 257.↩}

^{43. Johannes Althusius, Politica methodice Digesta, trans. Frederick Carney (Indianapolis: Liberty Classics Edition, 1995), 72-73 (emphasis added), 93, 96-7, and 110-11. For Althusius’s theory of active resistance and tyrannicide, see Politica methodice Digesta, 191-200.↩}

^{44. Johannes Althusius, Politica methodice Digesta, 70, 72-3, and 17. Althusius’s refutation of Bodin in the name of popular sovereignty qua constituent power does not only challenge the monarchical paradigm of sovereignty, it also questions the legitimacy of the modern state. In fact, the development of sovereignty as the power to constitute forms of government passes through the rediscovery of the federation as a superior alternative to the unitary and indivisible authority of the modern state. Althusius is both a thinker of the constituent power of the people and the first modern proponent of federalism, understood as the mutual binding of families, cities, guilds, communities, and provinces that associate together through mutual promises into a constituting body, outside and prior to any state form. With Althusius, therefore, the federation becomes the most appropriate and natural expression of constituent politics; the state, by contrast appears as its enemy.↩}