This is a course at the intersection of constitutional and political theory. Its central question concerns the conditions of legitimacy of constitutional democracy. We will ask the legitimacy question from a particular perspective – that of the (ir)relevance of the source and the original authorship of the legal and political order. Who makes the first rule, on the basis of what authorization, when and how? Does it matter at all, say for us who care about democratic legitimacy?
Early modern political theory assumed the relevance of these questions for legitimacy of law and politics. One set of classical guidelines came in the form of the social contract theories. But contractarianism did not address the specific sub-questions of the institutional origin, composition and authorship of the first author and first rule; neither did it ask about the relevance of the original authorship and choice for the established legal and political regime. An important attempt to address these questions came in the form of the theory of constituent power. In its classical 18th century expositions (Abbe Sieyes, Federalists, deep differences between them notwithstanding), the constituent power is presented as the source of the constitution (the constitution-making power). In addition to being the highest legal act, the constitution is seen as the rule of recognition for the whole legal and political regime. It follows that the constituent power is not ‘merely’ about writing and enacting a constitution. Rather, it is a power that establishes political community, by creating and institutionalizing its membership (citizenry), the relationships among members (basic rights), and political authority bound by the requirements of constitutionalism (the ‘constituted power’ under the rule of law).
Theories of the constituent power imply dualism between the original power and the constituted powers. These theories often assume that the constituent power remains beyond the limits of the established constitutional democracy. While they typically argue that the holder of this original and uncontainable power is the people (nation) as a pre-legal category, constitutionalism sees the people as the legally established and constrained entity. This leads to the problem of the circular reasoning (‘the paradox of the constituent power’): the ultimate author of the constitution is itself the constitutional creation. Such and related ambiguities of the concept – combined with the insight that the concept has been used by radical thinkers of different persuasions (e.g., Sieyes, Schmitt, Negri) - pushed the constituent power to the sidelines of the interest of liberal democratic theory. However, the question remains of the theoretical practical-political importance, especially after the regime change. As the democratic transitions in the second part of the 20th century have shown, the fall of the old regime leads directly to the puzzle of the founding act and the rule of recognition of the new regime. The theoretical and practical relevance of the question has been recently reiterated by democratic social movements that have proposed to revive the concept of constituent power as a core feature of an alternative social and political constitution of democracy.
We will explore some of the best-known theoretical attempts to conceptualize the constituent power, or – alternatively – to deny its relevance. We will first discuss the questions of identification, authorization, timing, and the ways of acting of the constituent power. Second, by focusing on the ‘paradox of the constituent power’ we will analyze radical democratic responses to the question of agency of the constituent power; these approaches (Sieyes, Schmitt) reject the constitutionalist idea that an established democratic regime can legitimately constrain the original sovereign. Third, we will read theories (Arendt, Ackerman, Habermas, Kumm) that acknowledge dualism between ‘constitutional’ and ‘normal’ politics, while trying in different ways to show that this dualism does not lead to the legitimacy trap of the constituent power. Fourth, we will discuss arguments that the constituent power and legitimacy of constitution-making process are not (at least not primarily) relevant for the proper understanding and legitimacy of constitutional democracy (Kelsen, Michelman, Dworkin).