Constituent Power : A. Kalyvas

Noticeably, for the first time since Marsilius laid the conceptual foundations and Lawson imagined its institutional shape, the constituent power was finally actualized and given political form in the revolutionary conventions, established outside the colonial legal framework, as irregular bodies with an authority superior to the ordinary legislatures.58 Starting with Virginia, North Carolina, Pennsylvania, and Massachusetts, conventions sprang up throughout North America with the special task of drafting the new constitutions. These political forms superseded royal charters, were often elected by free men, and fell back on the town hall meetings for consultation and legitimacy. They transformed the colonies into independent states, culminating in the 1787 Grand Convention in Philadelphia that drafted the federal constitution, which it then submitted to the state conventions for ratification.59

The vexing problem of the Convention’s self-authorization, its illegality and arbitrariness, was resolved by an appeal to “the original constituting power” of the people in their sovereign capacity.60 James Madison, for instance, defended the decision of the Philadelphia Convention to meet without a previous authorization, against the rules established by the Articles of the Confederation. He did so, in the name of a power superior to positive norms, emanating from “the precious right of the people to ‘abolish or alter their government as to them shall seem most likely to effect their safety and happiness’.”61 The principle of the constituent power generated the democratic legitimacy that was needed to compensate for the legal deficit of the revolutionary break. In the words of James Wilson,

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.62

The conclusion of the American Revolution saw the first examples of codification and integration of the principle of the constituent power qua popular sovereignty in a series of founding legal documents, such as the preambles to several revolutionary State Constitutions and the US Federal Constitution itself (and its amendment provision).

This original constitutionalization, however, revealed some dilemmas. While the newly founded republic recognized the sovereignty of the people as constituent power, it also sought to freeze and neutralize it. In particular, a critical debate ensued over the issue of constitutional revision, that is, of a legally regulated self-alteration, whereby the constitution incorporates the constituent logic by inscribing it within a juridical norm. It was a debate around the post-revolutionary survival of the constituent power outside the constituted rules.

The main question was whether popular sovereignty, that is, democracy, can exist only as a form, a regime, and a constitution or, rather, must retain its informal disobedient, eruptive, and revolutionary powers. This is the dilemma between revolutionary amnesia and a permanent revolution. To address this vexing problem, Jefferson and Paine rethought afresh the constituent power in terms of temporality and inter-generational justice between the “living” and “the dead,” while Madison rejected their proposals and instead defended the stability and lasting promises of the newly constituted order.63 And as Alexis de Tocqueville keenly observed, although “the principle of the sovereignty of the people . . . is always to be found, more or less, at the bottom of almost all human institutions . . . [it] remains there concealed from view . . . [and] if for a moment it is brought to light, it is hastily cast back into the gloom of the sanctuary.”64

With the closing of the revolutionary era the first reactions against the constituent power were voiced against popular sovereignty and its insurrectional, seditious, unruly, unstable, and brief nature. Democracy is revolutionary and, therefore, defective in the long term, because of its “subverting the foundation of civil government.”65 It is in this way that the constituted order turned against the constituent power. The new republic absorbed the constituent principle to sanctify its foundations, but it did so by repressing its own beginnings and by objecting to the extra-constitutional survival of the power of the many to constitute.66

A few years later, the concept, now enriched by the experience of the American Revolution, resurfaced on the European continent to shape the discourse and politics of the French Revolution. It was the Marquis de La Fayette and Antoine-Nicolas de Condorcet but, most notably, Emmanuel Sieyès who ardently propagated the doctrine of constituent power. This rediscovery initiated by La Fayette had a decisive impact on the conceptual history of constituent power and its subsequent ambiguous legacy.67 Condorcet’s effort, in particular, is remarkable because he sought to institutionally realize the democratic content by advocating popular ratification, citizens’ initiatives, multiple primary assemblies, recurrent conventions, and the right of insurrection.68 In so doing, he sought to formalize the democratic drive of popular sovereignty. His influence was decisive in the 1793 Constitution, but its permanent suspension indicates the unfortunate fate of Condorcet’s theory of the constituent power.

58. Thomas Paine, “Common Sense,” in Thomas Paine: Collected Writings, 32-34; Thomas Paine, “The Forester, Letter IV (May 8, 1776),” in Thomas Paine: Collected Writings, 85-90; Thomas Paine, “Rights of Man, Part I,” 469; Thomas Jefferson, “Notes on the Virginia Constitution: Query XIII,” in Jefferson: Political Writings, ed. Joyce Appleby (Cambridge: Cambridge University Press, 1999), 327-31; James Madison, “The Federalist: no. 37,” in The Federalist Papers, 224-32.

59. John Alexander Jameson, The Constitutional Convention: Its History, Powers, and Modes of Proceedings (New York: Charles Scribner, 1867); Clinton Rossiter, 1787: The Grand Convention (New York: W.W. Norton, 1987); Michael Allen Gillespie, Ratifying the Constitution (Lawrence: University Press of Kansas, 1992).

60. James Madison, “The Federalist: no. 40,” in The Federalist Papers, 250-59. On this point, see Hannah Arendt, On Revolution, 179-214; Jacques Derrida, “Declarations of Independence,” New Political Science 15 (1986): 7-15; Bruce Ackerman, “Neo-Federalism?” in Constitutionalism and Democracy, ed. Jon Elster (Cambridge: Cambridge University Press, 1988), 153-94; Frank Michelman, “Constitutional Authorship,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 64–98; Andrew Arato, Civil Society, Constitution, and Legitimacy (New York: Rowman & Littlefield Publishers, 2000), 170-75; Jason Frank, “Unauthorized Propositions: The Federalist Papers and Constituent Power” Diacritics 37:2-3 (2007): 103-120. On “the original constituting power,” see Thomas Paine, “Rights of Man, Part II,” 579, 537, 545-58, 572-79.

61. James Madison, “The Federalist: no. 40,” 39, in The Federalist Papers, 257, 258, 243 (emphasis added).

62. James Wilson, quoted in Jonathan Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, Vol. 2, ed. James McClellan (Cumberland: J. River Press, 1989), 432.

63. Thomas Jefferson, “Letter to James Madison (January 30, 1787)”; “Letter to William Stephens Smith (November 13, 1787)”; “Letter to James Madison (September 6, 1789)”; “Letter to John Wayles Eppes (June 2, 1813); “Letter to Major John Cartwright (June 5, 1824)”; in Jefferson, Political Writings, 107-11, 593-604, 382-88; Thomas Paine, “Common Sense,” 16; Thomas Paine, “Rights of Man: Part I,” 438-42 and 518.

64. Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New York: Vintage Books, 1990), 55.

65. James Madison, “Letter to Thomas Jefferson (February 4, 1790)” in Jefferson: Political Writings, 608; James Madison, “The Federalist: no. 49-50,” in The Federalist Papers, 327-355.

66. Hannah Arendt, On Revolution, 215-81; Antonio Negri, Insurgencies, 1-35, 103-36; Horst Dippel, “The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking Away from European Patterns,” Journal of the Early Republic 16:1 (1996): 21-45.

67. La Fayette, Mémoires, Correspondance et Manuscrits: Vol. 4 (Paris, 1837-1838), 36; Vol. 2, 263; Vol. 5, 445.

68. Marquis de Condorcet, “On the Influence of the American Revolution on Europe,” “Essay on the Constitution and Functions of the Provincial Assemblies,” “On the Principles of the Constitutional Plan Presented to the National Convention,” in Condorcet: Selected Writings, ed. Keith Michael Baker (Indianapolis: The Bobbs-Merrill Company, 1976), 71-83, 84-87, and 143-82; Marquis de Condorcet, “Sur la nécessité de faire ratifier la Constitution par les citoyens” in Oeuvres de Condorcet, Vol. 9 (Paris: Firmin-Didot, 1847-1849), 413-30.

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