Constituent Power : A. Kalyvas

III. Revolutions

By the time of the English civil war (1642-1651) and the Glorious Revolution (1688), the basic conceptual attributes of the doctrine of constituent power were set in place and deployed during the heated debates among Royalists, Levellers, and Parliamentarians.⁴⁵ It is during this critical period that the concept became widely diffused, was sharpened, and adapted to very concrete and tense political situations. The doctrine of popular sovereignty qua the power of the people to constitute was politically asserted and widely disseminated in numerous revolutionary pamphlets and theoretically enhanced in the writings of George Lawson, Algernon Sidney, and John Locke.⁴⁶ It erupted on the political scene, exerting a tangible influence over the structures of political rule and the normative development of modern constitutionalism as the “power to constitute,” that is, the sovereign power to “abolish, alter, reform forms of government . . . [and] to form a state, where there is none, and if after a form once introduced, the order be not good, to alter it.”⁴⁷

From that time on, the distinction between constituent and legislative (constituted) power attains its central and indispensable place in constitutional thought, setting the foundation for the superiority of constitutional law over ordinary legislation. While, on the one hand, the delegated power to legislate is conditionally exercised by an elected representative assembly within prescribed limits, on the other, the power to constitute, that is, to form, alter, or dissolve the government, is absolute, vested in the entire community and in the people acting outside the parliament. As one anonymous author put it a few years earlier, it was “beyond the power of the constituted, and only in the Constitutors to make such an alteration in the fundamental Constitution.”⁴⁸

From this distinction grew the idea of a temporary and extraordinary convention, a political device for the institutional expression of popular sovereignty, set against parliamentary supremacy. Lawson is the first to develop a systematic theory of the constituent assembly, empowered by special and temporary mandates to “model a state,” because, as he stated, “What may be done in extraordinary cases is one thing, what may be done in an ordinary way another.”⁴⁹

Locke, likewise, argued that below and prior to the “Constituted Commonwealth” there is a higher extra-legal power, vested in the self-organized original community or civil society, situated between the natural and political state, “which begins and actually constitutes any Political Society.”⁵⁰ Surprisingly, it was Hobbes who had explicitly recognized as early as 1642 that all deliberate foundings are democratic in nature, independently of the political forms they erect, because they emanate from the constituent power of the people. Democracy lies beneath all regime forms. There is, he wrote, a mode of political beginning that “originates in the determination and decision (a consilio & constitutione) of the uniting parties, and that is the origin by design (origo ex instituto).”⁵¹ And when this happens and “men have met to erect a commonwealth, they are almost by the very fact that they have met, a Democracy.”⁵²

Ten years later Hobbes repudiated this earlier position to advocate instead the institutional and political impossibility of democracy. But it will reappear in Locke’s description and defense of “the People as Supream Power” with the unalienable right to decide the structure of government. His work renews and strengthens the classic distinction between constituent power and constituted order by drawing a clear line between the “Dissolution of the Government” and the “Dissolution of Society”: the first does not affect the second because society exists independently and apart from the state. For Locke, popular sovereignty is a founding power, an irregular and exceptional insurgent force, antecedent to positive law and external to any state form, justifying legitimate resistance and revolution on the part of the people.⁵³

In the following century, the doctrine of constituent power migrated across the Atlantic and found fertile ground in the North American colonies, inspiring the American War of Independence and the revolutionary making of the federal republic.⁵⁴ Once more, it was evoked in the language of popular sovereignty and, as a right to revolt, it supplied the normative resources for the revolutionary war against the British Empire and the political legitimacy for the new republican government.

As early as April 1777, Thomas Young, a radical patriot from Pennsylvania, in an open letter addressed to the inhabitants of Vermont, urged them to establish their own government and frame a constitution, because “They are the supreme constituent power and, of course, their immediate representatives are the supreme delegate power; and as soon as their delegate power gets too far out of the hands of the constituent power, a tyranny is in some degree established.”⁵⁵

Most probably, he was inspired by the 1776 Declaration of Independence, written in the language of constituent power: governments are instituted to secure the life, liberty, and the pursuit of happiness and “whenever any form of government becomes destructive to these ends, it is the right of the people to alter and abolish it, and to institute a new government, laying its foundation upon such principles, and organizing its powers in such forms, as to them shall seem most likely to affect their safety and happiness.”⁵⁶ A few years later, Thomas Paine articulated the democratic logic of constituent power with his exemplary formulation: “A constitution is not the act of a government, but of a people constituting a government. And a government without a constitution, is power without right.”⁵⁷

^{45. Edmund Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton and Company, 1989), 55-121; Martin Loughlin, “Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice,” in The Paradox of Constitutionalism, 27-48.↩}

^{46. George Lawson, Politica Sacra et Civilis, ed. Conal Condren (Cambridge: Cambridge University Press, 1992), 21-30, 41-76, 88-125, and 218-51; Algeron Sidney, Discourses Concerning Government, 20-23, 30-32, 46-52, 69-76, 91-92, and 97-107; John Locke, The Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1991), 318-74, and 406-28.↩}

^{47. George Lawson, Politica Sacra et Civilis, 47 and 46 (emphasis added).↩}

^{48. Anonymous, Exercitation Concerning Usurped Powers (London, 1650), 8 and 73 (emphasis added). See also, A Plea for Non-Scribers (London, 1650), 26-27.↩}

^{49. George Lawson, Politica Sacra et Civilis, 48-49, and 107-8.↩}

^{50. John Locke, The Second Treatise of Government, 333.↩}

^{51. Thomas Hobbes, On the Citizen, 74. See, Myrray Forsyth, “Thomas Hobbes and the Constituent Power of the People,” Political Studies 29, no.2 (1981): 191-203.↩}

^{52. Thomas Hobbes, On the Citizen, 94.↩}

^{53. John Locke, The Second Treatise of Government, 366-67, 427-28 (emphasis added), 406-28.↩}

^{54. R.R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America, Vol. 1 (Princeton: Princeton University Press, 1959), 213-38; Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill: The University of North Carolina Press, 1998), 306-389; Richard B. Morris, The Forging of the Union (New York: Harper and Row Publishers, 1987), 115-6; Hannah Arendt, On Revolution, 145, 154, 165-71, 179-85; Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2005).↩}

^{55. Thomas Young, “To the inhabitants of VERMONT, a Free and Independent State, bounding on the River Connecticut and Lake Champlain (April 11, 1777),” in Zadock Thompson, History of Vermont, Natural, Civil and Statistical, In Three Parts (Burlington: Chauncey Goodrich, 1842), 106 (emphasis added). ↩}

^{56. U.S. Declaration of Independence (July 4, 1776) (emphasis added).↩}

^{57. Thomas Paine, “Rights of Man: Part II,” in Thomas Paine: Collected Writings, 572 (emphasis added).↩}