Constituent Power and Constitutional Order

Above, Within and Beside the Constitution

M. Spång

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137383006
• Topic: History
• Subtopic: Modern History
• Index: History

Constituent power of the people is a core concept of modern politics but what does this concept actually mean? This book addresses this question, sketching how constituent power of the people has been conceived since the early modern revolutions.

1

The Constituent Power of the People in the Age of Revolutions

Introduction

When Kant (1798: 95ff) reflected on the significance of the French Revolution, he argued that it lay in the sympathy it created among those observing it. This sympathy, close to enthusiasm, came from a revolution that demonstrated that political freedom is possible. The revolution is a sign of future politics (Foucault 1983a: 93ff). The revolution will inspire others to seize the opportunity it has opened: to begin again when the conditions are right. Kant (1798: 95ff) argued that the importance of this sign is not diminished by the revolution going astray; even though that shows that it is not desirable to begin again in the same way. To begin and begin again, although not in the same way, is in many ways the leitmotif of modern reflections about the constituent power of the people. Sieyès (1789: 133) had, ten years before Kant’s reflections, claimed that although human beings dread to begin again because of all previous failures, it is better to do so than ‘having to remain at the mercy of events’.

To begin in order to seize what is otherwise destiny is to act. It is an act of freedom. It is also about establishing a framework for freedom, where freedom is not only a single act, or event, but a recurring possibility. The latter has, since antiquity, been regarded as one of the main purposes of the polity. The polity is a place where people can be free and elaborate on their life together as free beings. This holds not only for thinking in antiquity but also for modern political thought. To engage in this endeavour of constituting freedom, to begin and begin again, is central to modern reflections about the constituent power of the people. The early modern revolutionary context plays a crucial role for the elaboration of this concept. In its revolutionary context, constituent power is about establishing a constitution: a process that Carl Friedrich (1937: chapter 9) regarded to be essential for defining what revolution is and what makes it different from revolt and rebellion. Echoing this view, Hannah Arendt (1963: 35) argued that, strictly speaking, we can speak of revolutions only when they aim at establishing a constitution:

[O]nly where change occurs in the sense of a new beginning...to bring about the formation of a new body politic, where the liberation from oppression aims at least at the constitution of freedom can we speak of revolution.

This connection between revolution and the constituting of institutions and practices that sustain freedom – and fundamentally constructs a world – are the reasons for Arendt’s appraisal of the American Revolution as successful in this regard, and for her thinking that the French Revolution was a failure. Whatever may be the merit of this assessment of the two revolutions (see Habermas 1966), it directs attention to the interconnection between revolution and constitution. Arendt was not only arguing that revolution aims at constituting freedom through establishing new political institutions but implicitly, also the reverse: there are no constitutions that are not born out of revolutions. And only when constitutions are created in this way can they help in achieving freedom. As Arendt (1963: 32f) remarked, liberation is not the same as freedom but freedom cannot be achieved without liberation.

It is in this context of revolution and constitution, of liberation and freedom, that the notion of constituent power of the people was articulated in the early modern period. Constituent power was formulated in the revolutionary context in ways that designate it as a power above constituted powers; as such it legitimized revolutions against royal power and aristocratic privilege. Constituent power of the people is also about the basis for the constitution; it is a power that is supposed to be at work within the constitution (Schmitt 1928: § 8 and 16–18). What the revolutions set in motion was, however, not easily stabilized and the combination of revolution and constitution was broken up. Two ways of engaging with the concept emerged: the revolutionary and constitutional approaches. Some argued in favour of continuing revolutions in order to fulfil their emancipatory promises. I illustrate this by discussing the Sans-Culottes, but similar views about making revolution permanent, or something that again is possible, have been voiced at several occasions during the past two hundred years (see Hutchinson and Colón-Ríos 2011). Others advocated the need for constitutionalizing revolutionary gains. The latter view was to a large extent informed by worries concerning the destructive consequences of continuing revolutions, not the least the risk that it would undermine respect for law and the fundamentals of the economic order, such as property rights. However, it was also advocated by those who thought that emancipation had been completed. An example of the latter is the statement of Le Chapelier, who was member of the French National Assembly: ‘The Revolution is finished… [since] there are no more injustices to overcome, or prejudices to contend with’ (cited in Jaume 2007: 71).

The splitting of the concept of the constituent power into revolutionary and the constitutional interpretations provides the focus of this chapter. I consider the nexus of revolution and constitution in the early modern period and outline some of the basic features of the concept of constituent power. This is fleshed out by discussing the late eighteenth-century revolutions in North America, France and Haiti. Whereas the war of independence and constitution-making in North America, and the revolutionary events in France, are often focused upon in this context, there has been less attention paid to the revolution in Haiti. The Haitian Revolution, however, is central among the eighteenth-century revolutions because it combined in new ways liberation from slavery with independence from colonial power (Dubois 2004a; Geggus 2002). Moreover, it influenced thinking and action focused on ending slavery and liberation from colonialism in the nineteenth and twentieth centuries (James 1938/1962).

I begin this chapter with some propaedeutic considerations concerning the constituent power of the people, considerations that set the stage for the rest of the book. More specifically, I address questions about the relation between medieval and modern ideas of politics, and consider Schmitt’s argument that modern political concepts are secularized theological concepts. The implications of this are considered and Schmitt’s thesis is discussed critically by addressing thinkers like Blumenberg and Lefort. Lefort argued that the symbolic centre of society was opened up by the early modern revolutions and that it can no longer be closed. Democracy, Lefort argued, is a form of government that is predicated on this openness. It is within this context that I will consider the concept of constituent power of the people.

Fullness of Power and the Empty Symbolic Centre of Society

It is difficult to determine when the notion of constituent power was first articulated. Egon Zweig (1909: 1ff) pointed out in his minor classic that the distinction between constituent and constituted power builds on distinguishing between constitution and law, between higher law and ordinary laws. This distinction opens up for the question of constituent power to appear because it builds on the difference between establishing higher law and enacting ordinary laws. Zweig thought that the latter difference can be traced back to Greek antiquity, but also acknowledged that the Greeks did not conceive of politics and the political community in terms of constituent power. As Charles McIlwain (1940: 26ff) argued, the Greeks did not think of law as a framework for politics but looked upon law as intimately connected with the ethico-political concerns of citizens engaged in politics:

[T]he Greeks thought of the law in a state only as one part or rather as one aspect of the whole polity itself, never as something outside or apart from the state to which that polity must conform, nor even as any special provision within the state to which other laws are subordinate. (McIlwain 1940: 35)

The importance of distinguishing between constitution and ordinary laws, and the way in which the constitution is the basis of laws, makes it clear that it is less the Greek polis than the Roman republic that provides the historical background for the development of constituent power. The Roman focus on the founding of the state is central in this regard, since constituent power is related to the founding of the polity. The Romans, furthermore, clearly distinguished between constitutional and ordinary law (McIlwain 1940: 26ff). Zweig’s (1909: 21ff) focus on this distinction meant he did not consider the medieval discussion to be so important, although noting the relevance of the relation between natural and positive law in this regard. Others have argued, however, that the more immediate background for what in the modern era becomes the focus on constituent power is found in medieval political discussions (Schmitt 1928: § 6).

Medieval discussions focused on God providing a transcendental anchoring of the political order, while this order at the same time was a relation specifically between kings and their subjects. On the basis of claiming ‘fullness of power’, popes argued that they had the right to intervene in the affairs of secular rulers, but the extent to which they should be authorized to do so was much discussed (Ullman 1965/1975: chapters 1–5). Several clerics argued against papal supremacy and, with John of Paris and Marsilius of Padua in the late thirteenth and early fourteenth centuries, steps were taken to assert the idea that government depends on the people and the compact between people and kings (McIlwain 1940: chapters 4 and 5; Ullman 1965/75). John of Paris argued that although government was traceable to God, since God had created nature and the state was part of the natural order, it more immediately was linked with the people. The function of the king was to preserve the social and natural order, which John thought (making use of Thomas of Acquinas’s arguments) was distinct from the supra-natural and spiritual order administered by the Church (Ullman 1965/75: 200ff). Kings had their power from the people, John argued, and this idea was further elaborated by Marsilius of Padua. Marsilius’s decisive step was to more clearly separate the natural and the supra-natural realm, arguing that he was only investigating the former. By not venturing into questions about how the natural order was constituted Marsilius could focus on political issues, viewed to be part of the natural order, without having to consider their relation to the supra-natural order. This demarcation of the natural order and its severing from questions about its existence, helped Marsilius to make the state into an object of inquiry. Moreover, Marsilius viewed the state as an end in itself, which did not require any interference from without (which papal arguments had built on) in order to be perfect. Those composing the state were citizens, and there was no distinction between clerics and laymen in this regard. Citizens should be legislators; their concern was what mattered (Ullman 1965/75: 204ff). The function of laws ‘was to provide “good living” in this life and world, that is, they aimed at the human well-being of all citizens. For this reason also the citizens were best qualified to make their own laws, because they knew best what they wished to achieve’ (Ullman 1965/75: 208).

These examples show the turning around of the descending view of power – power descending from God – into what Walter Ullman (1965/75) called the ascending view: that power comes from the people. The ascending view provides the background for the developments during the revolutionary upheavals of the early modern era, in which ideas about popular sovereignty and constituent power of the people was articulated (Bendix 1980; Morgan 1988). Relating to the break that the ascending view entailed are two major controversies about the nature of constituent power and its relation to medieval discussions. One of these controversies concerns the question to what extent constituent power was initially tied to both prince and people; the second concerns the relation between theological discussions about God and modern, political, conceptions of the people.

Schmitt (1922; 1928: 52ff) claimed that constituent power was initially thought to belong to both prince and people. It was essential for Schmitt that this shift from princely sovereignty to popular sovereignty entailed that the kernel – sovereignty – was kept intact, popular sovereignty mirroring princely sovereignty. The source of power differs and there is a shift in who is the constituent subject, but, Schmitt (1928: 51) contended, the structure of constituent power and sovereignty remains the same. This conceptual move allowed him to argue that democratic sovereignty includes the monarchical principle, more specifically reflected in the popularly elected president acting as custodian (Hüter) of the constitution. The president is the modern equivalent of princely sovereignty and the monarchical principle is thus present in the midst of democracy (Cristi 2011; Kelly 2004; Maus 1980; 2011: 8f).

However, as critics have pointed out, popular sovereignty is no mere reflection of princely sovereignty. There is a major difference between these two ideas of sovereignty, claims Ingeborg Maus (2011: 8f and 108ff). Whereas princely sovereignty is connected to executive power, popular sovereignty entails a focus on legislative power. This is reflected in the different ways in which the two doctrines emerged and were contrasted with each other in the early modern era. Popular sovereignty emerged as an idea or set of ideas that was related to parliament and legislative processes, parliament seen either as sovereign or as representing the sovereign people (see also Morgan 1988). This claim to sovereignty was articulated against the claim to sovereignty made by kings and princes, who argued that by their holding of executive power they had ultimate authority in the realm. The struggles for popular sovereignty entailed that executive power should be subordinated to the power of parliament qua legislator. For this reason, popular and princely sovereignty also entail significantly different ideas about the relation between different state powers. Popular sovereignty, Maus (2011: 108ff) argues, is internally connected to separation of power and the rule of law because executive power and administration must be subsumed to law in order to secure the structuring effect of popular sovereignty. Unless the executive and the administration follow what law stipulates, citizens cannot effectively control these branches of government. Self-legislation is undermined, or destroyed, if the executive and the administration do not apply law, that is, follow the fundamental principle of the rule of law. The notion of popular sovereignty is thus different from princely sovereignty; the latter is attached to the executive and branches out from this point to the other state powers, whereas popular sovereignty is connected to legislative power and citizens’ control of this power (Maus 2011: part 2).

The question of similarities and differences between princely and popular sovereignty resonates with a more far-reaching and deeper controversy regarding the constituent power of the people. This concerns the impact of theological discussions on modern debates about the people and the political order. Schmitt (1922) famously asserted that the background of modern political concepts is found in medieval theological discussions. It has, in particular, been common to think of the power of the people as analogous to that of God (see Isensee 1995). Schmitt (1922: chapter 3; 1928: 77ff) argued that the omnipotent God is reflected in the idea of the omnipotent lawgiver. Arendt (1963: 155ff) argued similarly that early modern revolutions were characterized by a search for an absolute, and that, especially in the revolutionary context, it was common to emphasize the creative, almost demiurgic, power of the people.

Central to arguments about the analogies between theological concepts and modern political notions is that the power of God, which provided the transcendental anchoring of the political order in medieval thought, was rendered immanent in modernity. Schmitt (1922 [1985]: 49f) expressed it in the following way:

To the conception of God in the seventeenth and eighteenth centuries belongs the idea of his transcendence vis-à-vis the world, just as to that period’s philosophy of state belongs the notion of the transcendence of the sovereign vis-à-vis the state. Everything in the nineteenth century was increasingly governed by conceptions of immanence. All the identities that recur in the political ideas and in the state doctrines of the nineteenth century rest on such conceptions of immanence: the democratic thesis of the identity of the ruler and the ruled, the organic theory of the state with the identity of the state and sovereignty…

At the end of this process of rendering immanent is the doctrine of the constituent power of the people, in which the people are considered to be the ultimate source of political legitimacy. The power of the people is the ‘unorganized organizing’ of political relations, claimed Schmitt (1921: 139). The people constitute new forms, which at the same time always can be broken up because the power of the people is unlimited.

The underlying principle of this constituting relation is self-legislation. Self-legislation or autonomy is the key concept of modernity. In giving themselves a constitution, the people expresses their freedom in a twofold way, being free to set up the constitution they see fit, and binding themselves through this constitution. The self-binding element is an expression of the freedom of the people because it entails that the people formulate what is obligatory for them (Schmitt 1921: 137ff; 1928: § 8 and 18). As Lindahl (2008) points out, Schmitt’s views about the centrality of self-legislation in modernity and the analysis of analogies between modern political concepts and theological thinking, resonate with Martin Heidegger’s understanding that self-legislation is the central metaphysical principle of modernity. Heidegger (1938) argued that secularization is a twofold process of transforming Christianity to a world-view (among other world-views) and the simultaneous Christianization of the world. Secularization is both a break with Christian concepts and a transmutation of these concepts. As Heidegger formulated it, through emancipation from Christianity freedom could be defined anew:

The claim originates in that emancipation of man in which he frees himself from obligation to Christian revelational truth and Church doctrine to a legislating for himself that takes its stand upon itself. Through this liberation, the essence of freedom, i. e., being bound by something obligatory, is posited anew. But because, in keeping with this freedom, self-liberating man himself posits what is obligatory, the latter can henceforth be variously defined. The obligatory can be human reason and its law; or whatever is, arranged and objectively ordered from out of such reason… (Heidegger 1938 [1977]: 148).

Heidegger brought out the central principle of self-legislation by stressing that what is freedom, that is, what is obligatory, is posited by the subject. The constituent power of the people entails that freedom consists in the people taking a stand upon themselves, by establishing a constitutional order that express their freedom. The self-binding element of the constitution stems from the power of the people to ground their existence, a grounding or foundation that takes place by establishing the constitution. The analogue between this positing of the constitutional order and theological notions is that the people being the cause of the constitutional order is the rendering immanent of God being the cause of what exists. Moreover, this also entails that the people are the uncaused cause, the causa sui. The people are the cause that is not in turn caused by something or somebody else. Through this dimension of being a ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 The Constituent Power of the People in the Age of Revolutions
• 2 The Reflexive Constitution and Its Critics
• 3 People and State Form: Identity and Representation
• 4 Constituent Power, Sovereignty and Government
• 5 Constituent Power and Public Opinion
• 6 Dialectics of Constituent Power
• Notes
• References
• Index