Popular Sovereignty, Democracy, and the Constituent Power

Andreas Kalyvas

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. James Wilson1 Si la puissance de la morale n est pas, pour ainsi dire, le pouvoir constituant d une rpublique, la rpublique n existe pas. Germaine de Stal2 It is the constitution that derives its authority from the constituent power and not the constituent power that derives its authority from the constitution. Maurice Duverger3

There is not much sympathy for the concept of sovereignty. A central category in the history of political thought, occupying a privileged place in the institutional and intellectual explorations of Western modernity, it is today seriously contested, or simply ignored. Whether it is dismissed as anachronistic a relic of an early modern secularized theology and/or as dangerous an unpredictable, lawless force of pure factuality sovereignty is often treated as the cause of the many wrongs that have marked modern politics. Several complex reasons may account for this transmutation of value. The ongoing process of globalization and its corrosive effects on state sovereignty have certainly contributed to the negative attitude toward sovereignty.4 In addition, the tension between popular sovereign power and universal human rights that has cut across most of the political debates during the last two centuries seems to have finally been resolved in favor of the
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latter.5 The rediscovery of cosmopolitanism has further undermined the principle of national sovereignty and it is in this context where the vision of an exodus from sovereignty finds its validity as an appealing alternative to the current political order.6 The normative assumptions, however, that inform these recent critiques of sovereignty are not truly new. They were powerfully articulated in the last century in the work of Hans Kelsen, Hannah Arendt, and Michel Foucault, among others. All pointed to the theological, absolutist, hierarchical, and even fictional nature of this sovereign power of command. Kelsen, for instance, argued against what he labeled the exclusive quality of sovereignty. Because of its designation as a supreme, omnipotent power and the unconditional priority its assigns to its national legal order, Kelsen asserted that, The sovereignty of one State excludes the sovereignty of every other State.7 This dogma of sovereignty, he added in another context, is the main instrument of imperialistic ideology directed against international law.8 For Kelsen, the sovereign nation-state frequently takes the form of a predator, envious of all other states, and possessed by solipsistic phantasies of total domination. Arendt, in a similar vein, denounced the arbitrary, inegalitarian, and even totalitarian effects of sovereignty, which divide between superiors and inferiors, those who command and those who obey.9 She also warned against the homogenizing drive of sovereignty that destroys the constitutive multiplicity, the very plurality, of the public space by violently imposing the dangerous fiction of a unitary macro-subject, the People-as-One.10 And, like Kelsen, she abhorred the voluntaristic and decisionist nature of popular sovereignty, tracing it back to a deistic theory of the will, which celebrates the people as one supernatural body driven by one superhuman, irresistible general will.11 Foucaults depiction of the juridical model of sovereign power is no more flattering: it is an anti-energy, he wrote, a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits. Foucault even proclaimed the death of sovereignty with the definitive closure of the classic age and its replacement by new dispersed and diffused modalities of power relations.12 By famously defining sovereignty as the highest power of command, Jean Bodin seems to retrospectively confirm the validity of these criticisms.13 His definition of sovereignty, transmitted into different legal traditions, appeared frequently in the work of subsequent thinkers, from Thomas Hobbes to Samuel Pufendorf to John Austin to Max Weber, and even to Benedict de Spinoza who, like many others, wrote that the sovereign is he who has the sovereign right of imposing any commands he pleases.14 The historical and conceptual origins of the sovereign command, however, lie elsewhere further back in history. They can be discerned in the Roman title of the emperor who, as a general was the chief holder of military command. Gradually, such power became identical to the sovereign, absolute power of the imperial command.
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 225 After the collapse of the Roman Empire, the concept of sovereign power as command nevertheless survived the Middle Ages as the Kaiser of the Holy Roman Empire proudly claimed the plenitude postestis of a Roman emperor.15 This higher instance of command reappears afresh in Bodins absolutist theory of sovereignty, but this time, deprived of its imperial title. As a result of these conceptual passages, sovereignty indeed looked like an arbitrary, limitless act of command, still carrying the traces of its martial origins, not subject to anything and anybody, beyond the law, stubbornly seeking to enforce obedience.16 It is this centrality of command and obedience that accounts for Austins formulation that the relation between the sovereign and its subjects is purely that of sovereignty and subjection, in which all the members of a society are dependent and subject to the supreme free will of the sovereign, thus foreshadowing Arendts description of the inegalitarian, vertical structure of sovereignty.17 For these criticisms of sovereignty to be right, however, one has to assume that there is and has always been one exclusive concept of sovereignty. This is the idea of sovereignty as supreme command, which was born on the battlefields of the Roman imperial armies and transmitted to modernity through Bodins legacy. If there were such a single concept, these assessments would likely be irrefutable. But this is hardly the case. Sovereignty as the command of a superior and the obedience of an inferior is one among various meanings to be proposed and acted on in the long history of this term. An alternative definition, one that significantly differs from the paradigm of command and formed in the modern era, can be traced to the writings of George Lawson, John Locke, Thomas Paine, Emmanuel Sieys, and Carl Schmitt, for whom sovereignty was understood not as the ultimate coercive power of command but instead as the power to found, to posit, to constitute, that is, as a constituting power. It is this alternative conceptualization of the sovereign as constituent power that I will seek to recover as a more attractive and relevant form of sovereignty. Free from the flaws and excesses of the other, more hegemonic, but now weaker, version and more attuned to the emancipatory promises of popular sovereignty, the notion of the constituent sovereign, I argue, avoids the limitations and paradoxes associated with a sovereign commander. Such a retrieval is also necessary because as pivotal as it was in the American and French revolutionary and postrevolutionary republican constitutional theories of the eighteenth and nineteenth century, the capital problem in public law according to Carr de Malberg, the idea of the constituent sovereign has been virtually obliterated since then.18 Indeed, it barely appears in contemporary constitutional theory and when it is mentioned, it is quickly denounced and rejected.19 It is as if the constituting power differs little from Bodins voluntaristic, discretionary, and normless sovereign. Like the supreme command, the constituting power bears the marks of an unconstrained, undivided, and limitless force that verges, once again, on violence, arbitrariness, and raw facticity.
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As early as the mid-seventeenth century, George Lawson attributed the title of real majesty to the power to constitute, abolish, alter, reform forms of government, that is, to the power to model the state.20 Respectively, he located the right of command to the inferior, delegated, and constituted personal majesty of the Kings executive powers.21 John Locke walked in Lawsons footsteps arguing that below and prior to the Constituted Commonwealth is a higher form of power, possessed by the original constituting community. This is the Supream Power to determine, alter, and overthrow an existing form of government.22 In the following century, James Madison defended the decision of the Philadelphia Convention to meet without the authorization from the constituted powers established by the Articles of the Confederation, in terms of a power superior to established norms, the power of the transcendent and precious right of the people to abolish or alter their government as to them shall seem most likely to effect their safety and happiness.23 This supreme instituting power attained its full theoretical formulation and conceptual content in the revolutionary writings of Thomas Paine and Emmanuel Sieys. It erupted on the political scene with the invention of modern constitutionalism, in the form of an original constituting power, which founds/grounds a constitutional order while remaining irreducible to and heterogeneous from that order.24 This positing aspect of the constituent power is the first fundamental trait of the alternative conception of sovereignty. From the perspective of the constituting act, the sovereign is the one who makes the constitution and establishes a new political and legal order.25 In a word, the sovereign is the constituent subject.26 For this reason, I define the sovereign as the one who
determines the constitutional form, the juridical and political identity, and the governmental structure of a community in its entirety.

The sovereign is the original author of a new constitutional order and sovereignty qua constituting power manifests itself in a genuine process of constitutional making as a supra-legislative power enacting fundamental laws, the laws of lawmaking, in Frank Michelmans phrase.27 This instituting aspect of the constituent sovereign is fully captured by Carl Schmitts definition of sovereignty as a founding power (die begrndende Gewalt), with the figure of the sovereign reminiscent of the classical Lawgiver.28 To better grasp this definition of sovereignty as the constituent founder it is useful to consider how it differs from the paradigm of command, how, in other words, the concept of sovereignty as the creative, founding act of the constituent subject departs from the traditional notion of sovereignty as the higher and final instance of command. First, while in the traditional formulation the emphasis is on the moment of coercion, which often occurs within an established order (repressive), in this alternative version, the emphasis is on the moment of the
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 227 original creation of a new order (productive). Here the modality of sovereignty is expressed in its instituting powers to establish new systems of fundamental laws, to instaure new political orders, and to bring into being novel constitutions. The sovereign constituent subject is not a repressive force, but a productive agency. Second, whereas the criterion of command is based on the model of ruling, the constituent sovereign is derived from that of legislating. The sovereign is no longer an absolute ruler but a founding legislator: the mission of the sovereign is not to exercise power, but to design the higher legal norms and procedural rules that will regulate this exercise of power. Finally, instead of stressing the discretionary power of a superior command emanating from the top, the notion of the constituent sovereign redirects our attention to the underlying sources of the instituted reality located at the bottom. In all its theoretical expressions, the constituent power has always been placed underneath the civil and legal edifice. The various names used to designate it the multitude, the Community, the People, the Nation suggest, in the last instance, the utter limit of any politics, a politics that survives the dissolution of governments, the disruption of legal systems, and the collapse of instituted powers. This brings me to the second fundamental trait of the constituent sovereign: its tense and ambivalent relation to the constitutional order it founds. The sovereign moves uneasily inside and outside the constitution, escaping, sometimes resisting, its total absorption by the instituted reality. Both Lawson and Locke understood this sovereign constituent power as external and prior to any established system of positive laws, located in the gray zone between the natural and political state. Paine took up this view, arguing that the constituent power is always antecedent to and distinct from the government and the constitution. It was Sieys and Schmitt, however, who radicalized this idea in claiming that the original site of the sovereign power is a normless state of nature and not an intermediary original community. Sieyss reasoning brought the logic of the constituent power to its ultimate conclusions. Since the power to constitute refers to the origins of higher constitutional norms, the very foundation of any valid legal system, it cannot be traced back to any juridical norm, simply because such a norm does not yet exist. Since a legal system is necessarily subsequent to the constituting act that brings it into being, the origins of the latter must be located outside any juridical norm, in an extra-legal zone. As Sieys famously stated,
the constituent power can do everything in relationship to constitutional making. It is not subordinated to a previous constitution. The nation that exercises the greatest, the most important of its powers, must be, while carrying this function, free from all constraints, from any form, except the one that it deems better to adopt.29

Similarly, Schmitt argued that in moments of genuine constitutional creation, the constituent power is an absolute beginning, and the beginning (understood as h) . . . springs out of a normative nothingness and from a concrete disorder.30
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By describing the constituent sovereign as an independent determining moment, as the highest, legally independent, underived power,31 Schmitt shed light on the elective affinity between the constituent act and the exception, thus exposing the revolutionary and unpredictable potentialities of sovereign power. Echoing Sieys, he asserted that given that the law, and the constitution as the highest legal document, is the creation of the constituent power, it is conditional upon and subordinate to it, vulnerable to being changed by its volitions. The sovereign constituent power may initiate a change in the law in violation of the instituted positive juridical order. Because sovereignty refers to the genuine creation of a new legal and constitutional order it is assumed to operate solely during exceptional moments, in the legal vacuum of a natural state.32 For theories of the constituent power, therefore, the fundamental norms and rules (and institutions) have no other ground than the groundless instituting sovereign act. A true sovereign act always escapes subsumption under any rule or norm because, in fact, it constitutes their ultimate origin. And as their ultimate cause, it will always elude them. Hence, the instituting sovereign act cannot be reduced or traced back to anything external or posterior to itself. It signifies a new legal beginning. In other words, the constituent act occurs outside a given constitutional horizon to radically redefine the very contours and content of that horizon. If the constituent power were to be determined by the previous legal order or if it were to derive its legality from a pre-existing constitution, it would not be a constituent power but rather a constituted power. This amounts to a logical impossibility that effaces the very meaning and existence of the term constituent power. In such a case, there is no constitution of an order but only a partial transformation, a re-constitution and re-articulation, that is, a revision of an already existing order.33 This formulation, which stresses the instance of the exception as legal discontinuity, in the form of a gap, is a reminder that while the old system is abrogated, the new one is not yet in place. From the perspective of the constituent power, sovereignty becomes visible only during exceptional circumstances, when a constitution is destroyed and another is not yet born. During the moment of original constitutional making, there is a rupture, a dislocation, which makes possible the re-activation of the constituent power. For this reason it is often portrayed as emerging ex nihilo, and described as extra-legal or pre-juridical rather than illegal.34 Obviously, there are more concrete reasons for why the constituent power cannot be constrained by established rules or procedures. First, the exception is the condition of possibility of sovereignty, not its essence. It is only at the moment of an organic crisis, to use Gramscis formulation, where the closure of the social explodes to bring about a displacement among its different structural levels, including the legal system, that there is the possibility for a radical change in the political and juridical organization of society.35 The exception denotes this openness and contingency. In Derridas terms, it is the undecidability of an institutional structure that provides the available space for the re-activation of the constituent
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 229 power, which up to that moment remains in a dormant and subterranean form. This affinity with the exception represents little more than a conventional sociological and historical truism, according to which, as Jon Elster has noted, new constitutions almost always are written in the wake of a crisis or exceptional circumstances of some sort. . . . By and large . . . the link between crisis and constitution-making is quite robust.36 A second reason for associating the sovereign constituent power with the exception has to do with the failure and collapse of the previous regime. Again, Elsters observation helps to clarify this point: Almost by definition, the old regime is part of the problem that a constituent assembly is convened to solve. There would be no need to have an assembly if the regime was not flawed. But if it is flawed, why should the assembly respect its instructions?37 Several important implications for constitutional and political theory follow from this formulation of the sovereign as the holder of the constituent power. The first and most obvious is that a theory of the constituent sovereign operates strictly on the plane of immanence. Although it is still tainted by certain traces of political theology, which evoke the image of the demiurgical, transcendental divine creator, it is nonetheless deeply profane, rooted in the spirit of modernity, a sense of historical contingency, and the affirmation of the powers of this world. Thus, for Madison the improvement made by America on the ancient mode of preparing and establishing regular plans of government was to bring about a revolution by the intervention of a deliberative body of citizens rather than to rely on mythical lawgivers.38 From the perspective of the constituent power, the constitution is a human political construction. It denotes the moment, in Cornelius Castoriadiss terms, of the self-institution of society. A constitution represents a tentative, precarious attempt to freely and consciously organize the political form of a collective existence. It is not a natural given, an unavoidable necessity, or the pitiful simulacrum of a fictional eternal natural law that provides the ideal transhistorical prototype for all constitutions.39 Second, any meaningful and compelling distinction between higher and ordinary laws that assumes the superiority of constitutional essentials vis--vis normal legislation, and which corresponds to one of the most fundamental principles of modern constitutionalism, has to assume the presence of the constituent power.40 Otherwise, the constitutional text becomes vulnerable to the capricious will and partial interests of party politics and interest groups, which are endemic to an impoverished majoritarian and monistic concept of democracy. Likewise, the notion of the constituent sovereign discredits any sovereign ambitions that the legislative branch may entertain. Parliamentary sovereignty finds in the constituent power its own impossibility. It is exposed as a usurpation of the constituent power by a constituted power, which reduces popular sovereignty to parliamentary representation and to the powers of elected officials. Furthermore, a related implication is the central role theories of the constituent power assign to constitutionalism. They have consistently treated politics in terms of constitutional politics. The constitution is at the core of a normative political theory and emerges as the highest and most important dimension of
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politics. There is an outstanding evaluation of constitutional politics and an appreciation of the central, architectonic importance of the juridical system. Theories of the constituent sovereign present a unique case for the constitution as understood in political terms and politics, in turn, is analyzed in constitutional terms, bridging thereby the artificial and politically suspicious distinction between politics as the field of factual power and the constitution as the realm of pure normativity. Finally, at the same time, this appreciation of constitutionalism avoids with remarkable dexterity the traps of legal fetishism. By locating the sources of higher fundamental norms the constitutional identity of a political association itself outside the constitution, it breaks with the impasses of pure proceduralism, allowing for more spontaneous, extra-institutional forms of political mobilization. In Castoriadiss words, The instituted society is always subject to the subterranean pressure of the instituting society.41 Similarly, Sheldon Wolin has claimed that, Democratic action, or the demos as autonomous agent, might be defined as collective action that initially gathers its power from outside the system.42 The idea of the constituent power as the excess of constitutionalism is a reminder that politics cannot be reduced to abstract, mechanical legality. In fact, the constituent power shifts the focus from an internal, and sometimes rather technical, examination of a constitution to how constitutions relate to its addressees, who, as its creators as well, at times exceed and transgress the constituted order and its higher authority. Sovereign constituent politics is uniquely attentive to moments of legal disruptions and discontinuities and avoids the problem of a total juridification of politics. Instituted reality does not exhaust and should not consume all forms of political action, which often involves a confrontation and a rupture with existing legal structures. From the point of view of the constituent power, phenomena such as civil disobedience, irregular and informal movements, insurgencies, and revolutionary upheavals retain all their dignity and significance even if they directly challenge the existing constitutional structure of power. In assuming that a constitutional order confronts an irreducible outside, theories of the constituent power expand the boundaries of politics so as to involve more direct and effective forms of political participation. Such a constitutional outside, therefore, does not necessarily have to be exclusively populated by beasts or gods. Nor does it amount to a war of all against all.

II Despite these positive implications, the constituent sovereign has found neither the recognition it deserves in contemporary constitutional jurisprudence nor its proper place in our political vocabulary. There are many reasons for this scandalous absence, but here I will limit myself to a few. Hannah Arendt, especially in her comparative study of the American and French Revolutions, has brilliantly articulated two such reasons (although they were ritualistically invoked since the end of
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 231 the eighteenth century to find their most vocal advocate in Kelsens pure theory of law). Both echo the unsettling issue about the extra-legal, pre-juridical, factual nature of the constituent power. The first refers to the arbitrary dimension of the constituent power and to its unauthorized character. The constituent subject presupposes that it has the legitimate authority to draft a new constitution. But since it operates outside the instituted legality it necessarily lacks this authority, which can be given to it only retroactively by a new constitution that acknowledges it as the legitimate supreme authority of the constituted republic. In this case, the foundations of a new constitution are arbitrary, purely factual, based perhaps on the strength of the stronger group(s) able to impose its will, designating itself the constituent power, for no authorization was given to draft a new higher law. Is it the unconstituted constituent power that creates the constitution (but on what legitimate grounds?) or is it the constitution that gives concrete juridical and political life to the abstract category of the constituent power (but in that case who creates the constitution)?43 This anxiety regarding what Malberg de Carr famously described as a vicious circle between the constituted and the constituting,44 resonates in Arendts study of the first modern revolutions:
those who get together to constitute a new government are themselves unconstitutional, that is, they have no authority to do what they have set out to achieve. The vicious circle in legislating is present not in ordinary lawmaking, but in laying down the fundamental law, the law of the land or the constitution, which from then on, is supposed to incarnate the higher law from which all laws ultimately derive their authorship.45

Derrida asks the very same question: How are we to distinguish between the force of law of a legitimate power and the supposedly originary violence that must have established this authority and that could not itself have been authorized by any anterior legitimacy, so that, in this initial moment, it is neither legal nor illegal?46 Like Arendt, Derrida points to the paradox of foundations, where the authority of the newly established powers is derived from an extra-constitutional source, the constituent power.47 Does it make sense to speak of genuine constitutional making without assuming an existing institutional framework of mutually recognized rights and duties that coordinates and guarantees the valid scope of constitutional politics and channels the entire process of higher lawmaking, that is, without a secondary rule of recognition to identify when the constituent sovereign has really spoken?48 How can, in other words, higher lawmaking be justified if the legal and institutional principles of validity necessary for assessing the rightness or fairness of constitutional creation are absent at the very moment of founding?49 Arendt voiced a second reservation as well. If the constituent power creates ex nihilo, if the constitution emanates out of the normative and legal void of a natural
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state, in a condition of pure facticity, how will it ever obtain the required stability for a lasting political order? What will stop the constituent power from perpetually emanating novel constitutional norms, thus ceaselessly destroying its previous creations? If the constituent sovereign can never limit itself, it will by no means establish an enduring constitutional order. Consequently, it will be trapped in its own illusionary omnipotence, remaining in a perpetual exception, stuck forever in a normless state of nature. Unregulated and faced with no limitation, shapeless and boundless, the constituent power would always be vulnerable to its own transient and fluid dispositions. Its shaky and volatile nature is antithetical to order and stability. Moreover, the originary groundlessness of the constituent power is most likely to survive within a constitutional order, thus depriving this order of its own necessary grounding. Arendt concluded these critical remarks by gloomily commenting that, the so-called will of a multitude (if this is to be more than a legal fiction) is ever-changing by definition, and that a structure built on it as its foundation is built on quicksand.50 In these comments one can discern a third doubt, in fact a true skepticism about the very existence of the constituent power. In Kelsens later work, this skepticism receives its full theoretical articulation. The constituent act is a fiction, a hypothetical presupposition that enables the jurist to conceive of the origins of the validity of the Grundnorm. This constitution-creating act, Kelsen argued, is logically indispensable for the foundation of the objective validity of the positive legal norms, but it can only be the meaning of an act of thinking and not of a real act of the will.51 Likewise, the constituent authority from which the basic norm emanates is admittedly, a fictitious authority.52 Kelsen reluctantly recognized the constituent power but only as the necessary transcendental presupposition of legal validity, a fictitious authority required for grounding the basic norm.53 In a more radical version, the constituent power is nothing more than a foundational myth that endows with legitimacy the extra-legal origins of legal norms and covers up its factual beginnings with might and violence.54 But either as a transcendental presupposition or as a myth, the constituent act is reduced to a mere allegory, a useful metaphor in a fable of foundations. The sovereign power to constitute is nothing but the noble lie of modern constitutional thinkers a falsehood Kelsen confessed to at the same time as he defended it. Undoubtedly insightful, these qualms do strike at the core of the constituent power. They expose the most serious difficulties with this notion of sovereignty. But the concept of the constituent power itself allows the possibility of three responses, all of which are related to its juridical nature. Although associated with extra-legality, antecedent to any established legal form, the constituent power is a juridical category par excellence in two separated though interrelated ways. But before presenting the implications stemming from the juridical nature of the constituent power, I will first address the last objection, regarding the so-called fictional and metaphorical character of the constituent power.
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 233 This critical approach, which questions the very existence of the constituent power, is, in fact, the least convincing of all. For it to be right, one has to assume that constitutions are not human constructions. I consider this assumption unconvincing. From the seventeenth century on, the term constitutio came to designate a written document and a set of explicit legal regulations instituted by human beings in opposition both to customs or conventions and to a transcendental natural law.55 This positive understanding resounds in Hamiltons assertion in the opening lines of the Federalist Papers, that it seems to have been preserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for the political constitutions on accident and force.56 But if the constitutional document is a human creation and a political invention, as is today fully recognized, one has to accept that it is the result of an actual deed, which brought it into being. In the words of a contemporary constitutional scholar, a constitution in each and all of its various parts, is the yield of political acts of a certain sort: acts intended to establish not merely particular configurations of words but, ultimately, particular norms.57 The constituent power names and identifies these instituting acts in the same way as the legislative, executive, and judicial functions in a modern government are designated as the exercise of a respective form of instituted power. Thus, whenever a person, a special assembly, a roundtable, a committee of lawyers, or an existing legislature drafts a new constitution, it inevitably engages in a particular kind of activity, exercising a very special, real, and visible form of power the supreme, sovereign power to write and determine the higher laws and regulative principles of a political association. Simply put, constitutional making is as genuine an act of (law) making as any other form of productive, positing activity, bearing the characteristic of Rechtsmacht, that is, the power to create juridical norms. This de-mythologizing of the constituent power is in accord with Lockes definition of political power as a Right of making Laws, where the constituent power indicates the sovereign political right to make the higher laws. I will now address Arendts two concerns. The first points at the illegal and lawless nature of the constituent power. However, the constituent sovereign in a strict sense is a purely teleogical concept in that it realizes itself by creating novel constitutional norms. As a supreme legislative power, a founding legislative power as the French constitutional scholar Maurice Hauriou put it, the telos of the constituent power, its true finality, is manifested solely through the higher laws it originally creates or subsequently amends.58 The constitutional order is the destiny of the constituent power. It is not that the former is imposed as an external check on the latter, as some liberal theories tend to assume (in a paradoxical agreement with versions of direct democracy). The juridical character of the constituent sovereign, its true finality, is to fulfill the idea of law.59 As the constituent sovereign speaks through the generality of the law and as higher
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constitutional norms are the final cause of the constituent power, a failure to invent and institute them will amount to the inability of the constituent power to realize itself. Although it is often seen as populating a lawless natural state, it does not mean that it is lawless or normless itself, but rather that it is the only source of legal power, the sole voice of right, which can produce juridical norms in a situation of disorder. The constituent power is the full immediacy of a legal power not mediated by laws, a type of law that precedes the state.60 For this reason, it can neither command nor rule. This also explains why in some cases, the very act of laying down the foundations of higher law was regarded as a legal act dressed in the juridical form of a social contract. Even Sieys circuitously recognized that the national constituent will is always legal, it is the law itself, despite the fact that it was he who relegated it to a state of nature in the first place.61 In the twentieth century this legal character of the constituent power reappears in the writings of Hermann Heller and Ernst-Wolfgang Bckenfrde. Heller pointed to the juridical supra-positive character of the constituent power, which he described in terms of the ethical principles of law and of extra-juridical norms.62 Bckenfrde has further developed this line of inquiry by arguing that the concept of the constituent power is not normatively or legally empty because it is permeated by legal considerations and driven, overdetermined, by a final legal objective.63 To say, therefore, that the constituent power is a juridical power is to recognize that although it is outside established law, it is nevertheless of the law. The constituent power is the potentiality of law, while the constitution is law in its actuality. This is the ultimate paradox of the constituent sovereign: as a juridical concept it manifests itself in moments of lawlessness to wane in times of legality. Still, this juridical form of the constituent sovereign power does not successfully address the problem of arbitrariness. The sovereign could lose sight of its purpose, unguided as it is by any existing regulative principle or a secondary rule of recognition. As Arendt noticed, the constituent power is hopelessly confused sometimes, disoriented, unguided, thrown into an ocean of uncertainty, where the lack of positive norms becomes an impediment for consistent or principled action.64 For Arendt, actions are consistent when they are guided by principles that inspire and inform them.65 These principles, she argued, are neither transcendental norms remaining vestiges of the declining Western metaphysical tradition nor rational, universal precepts with a cognitive content imposed on the public sphere from the outside.66 This problem associated with the arbitrary potentialities of constituent action propelled Arendt to investigate the idea of immanent principles. The constituent power may avoid arbitrariness and violence, while remaining free from pre-existing legal determinations and transcendental grounds, if guided by some general, clear, and stable principles. But not by any kind of principles. They must be immanent. They must be distilled and reconstructed from within instituting action itself at the very moment of its performance. In Arendts words, the constituent act carries its own principles
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 235 within itself, instead of being subsumed by external norms, which would threaten the autonomy and dignity of the realm of human affairs and destroy the in-between space shared by all the participants. If, therefore, the main task of principles is to channel and regulate the constituent venture, they must not confront the founding actors as external constraints but must be forms of selflimitation, dictated by the instituting act itself. As she categorically put it, What saves the act of beginning from its own arbitrariness is that it carries its own principle within itself.67 Principles of action are immanent as they emanate solely from the constitutive practice.68 Arendt understood these principles in terms of an implicit standard that becomes explicit through the performance of the constituting act itself, that is, during the very moment of founding a new constitutional order. Arendts references to principled action, though infrequent and vague, are of critical importance to a theory of the constituent sovereign. She introduced the notion of the immanent principles of action as the main check against the arbitrariness of new constitutional beginnings because as they protect the constituent power from losing sight of what it has to accomplish, thus preventing it from turning into either a self-defeating whimsicality or a self-deceiving permanent revolution.69 As Andrew Arato has aptly put it, principles have the advantage of being able to draw on resources that have not been formalized and that are available when appeal to legal resources would inevitably turn circular at moments of foundation. Principles can break this circle without resort to violence or arbitrary threats of force.70 In this sense, Arendts immanent principles might be considered laws of action.71 But what are these immanent principles? Arendt mentions honor, glory, distinction, excellence, the love of equality, and even justice.72 Why, however, did she view these principles as immanent to constituent action? She never explained how they emerge out of the constituting practice.73 And how do they authorize the constituent power? This remains a mystery. Aside from some scattered references, Arendt does not say much about what a principled action entail. One needs to look beyond her theoretical framework in order to answer these questions. To do so, I shall bring the etymology of the Latin word constituere to bear on Jrgen Habermass recent writings on higher lawmaking and constitutional making. The term constituere, to constitute, is a combination of the prefix con- and the verb statuere. The prefix con- has numerous grammatical meanings, one of which is with or together. The verb statuere on the other hand, comes directly from statuo, which means to cause to stand, to set up, to construct, to put, to place, to erect. The word constituere, therefore, literally denotes the act of founding together, founding in concert, or creating jointly. For this reason, it was also used in Latin to designate in the economic vocabulary of exchange relations an agreement with another on something, an accord among a plurality of actors. Thus, contrary to the paradigm of the sovereign command that invites personification and can better be exercised by an individual who represents and embodies the unity of authority from the ancient imperatore to the king to the modern
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executive the constituent power points at the collective, intersubjective, and impersonal attributes of sovereignty, at its cooperative, public dimension. It is here that Habermass recent theory of constitutional making is significant. His starting point is the reconstruction of the conditions of a collective genesis of law.74 Moving a step beyond Arendt, Habermas asks what are the inescapable procedural presuppositions of the practice of original self-constitution, whereby citizens view themselves as the authors of the law of which they also are subjects as addressees.75 By attempting to deduce the constitutional principles from the formal process of constitutional making, he renews Arendts quest for the immanent norms of action. The very act of founding a new legal order, from which the constitution of a self-governing political community originates, contains, for Habermas, implicit principles that are spelled out and substantiated during the historical framing and ordering of a new constitutional document.76 In the beginning, there is a multitude of individuals who participate in the process of constitutional lawmaking, based upon which they will decide which legal rights and higher laws they must mutually concede to each other in order to establish a democratic association of free and equal persons through the medium of positive law. Despite the many differences among the founding participants, they possess a common minimal orientation, namely, that they are all involved in the process of con-instituting a new order, of instituting jointly that order. The adjective jointly is of a paramount importance as it evokes the etymological meaning of constituere and brings into relief its political and normative consequences. The con-instituting act is acting in concert, an act of a plurality of actors who engage with each other in creating the higher laws. In this collective legislative moment, the parties can rely only on the process itself and its implicit presuppositions, such as symmetry, autonomy, equality, mutuality, disagreement, discussion, and inclusiveness. They are all involved in the same activity of establishing new juridical foundations despite the fact that they may disagree on many other substantive issues. They have, therefore, to rely on the reciprocal process itself if they want to institute an inclusive constitution that will appeal to all the participants.77 For this reason, the participants try to make explicit the norms of equality and reciprocity that are already implicit in the constituent process and are practiced by all those equally involved in this founding process.78 Here one can discern Paines argument that, a charter is to be understood as a bond of solemn obligation, which the whole enters into, to support the right of every separate part.79 Constitutional making looks, therefore, like a process of discovery, excavation, and reconstruction.80 Since the participants operate with the juridical category of the constituent power, they make use of the grammar of law.81 In doing so, they realize they must first include in the new constitutional document those same norms that they have been abiding by all along, and that are the implicit presuppositions of constitutional making. These include the rights and duties they automatically performed, thus affirmed, during the constituting process and subsequently voluntarily grant to each other. For Habermas,
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The performative meaning of this constitution-making practice already contains in nuce the entire content of constitutional democracy. The systems of rights and the principles of the constitutional state can be developed from what it means to carry out the practice that one has gotten into with the first act in the self-constitution of such a legal community.82

The act of constituent higher lawmaking enacts those principles that are also the very conditions of its possibility already performed during the manifestation of the constituent act. They are immanent, though amorphous and unthematized, to the founding act itself, and independent of any particular social-cultural context and shared identity. These enter into the picture only later to determine the particular content of the norms. Thus, while the form of the higher constitutional principles is always already presupposed in the very manifestation of the constituent power, their substantive content is contingent upon the hermeneutical self-understanding and volitional attitudes of concrete historical collectivities that aim to constitute themselves into a political organizational form, according to their particular needs and their conceptions of the good.83 III But where does democracy fit into all this? How does it relate to the constituent power? What are the grounds of Bckenfrdes claim that the concept of the constituent power is, because of its origin as well as of its content, a democratic and revolutionary concept, of a democratic constitutional theory;84 or Negris assertion that, To speak of the constituent power is to speak of democracy. In the modern age the two concepts have often been related?85 This intimate relationship between democracy and the constituent power is best illustrated with respect to the question of legitimacy. The constituent power answers the need for democratic legitimacy and allows for a rethinking of the problem of the legitimation deficit that unavoidably plagues the normal politics of all modern constitutional, representative democracies. Democratic theory, Schmitt powerfully argued, knows as a legitimate constitution only the one which rests on the constituent power of the people.86 Schmitts reasoning points at the collective origin of constitutional laws. In a democratic regime, the legitimacy of the fundamental norms and institutions depends on how inclusive the participation of the citizens is during the extraordinary and exceptional moment of constitution making.87 Precisely because the concept of the constituent sovereign resituates the normative ideals of political freedom and collective autonomy at the center of democratic theory, it points at a distinctive theory of democratic legitimacy. Constituent politics might be seen as the explicit, lucid self-institution of society, whereby the citizens are jointly called to be the authors of their constitutional identity and to decide the central rules and higher procedures that will regulate their political and social life.88 The politics of democratic
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foundings illustrates the popular origins of the basic structures of society, whereby its higher regulative principles and central institutions are conceived as the purposeful product of a collective practice based on conscious political willformation. The constituent sovereign evokes the extraordinary moment of the direct manifestation of collective autonomy and popular mobilization during those rare periods of political innovation and original constitutional making, where there is growing mass intervention and participation in the process of establishing a new constitution. Political freedom as the will to live under ones own laws is best actualized when those laws are the higher, fundamental laws of a free government. This formulation of popular sovereignty in terms of the constituent power of an expansive political community is a more sophisticated re-statement of the old, fundamental democratic principle of self-government and selfdetermination, according to which the people are the authors of the laws that govern them. As a consequence, a theory of the constituent power provides a critical lens by which to evaluate existing political practices and choices, and particularly, various forms of constitutional making. It posits a rule of recognition, in H.L.A. Harts famous formulation, which supplies authoritative criteria for the identification of valid rules of democratic constitutional making.89 The notion of a popular constituent sovereign facilitates the distinction, from a normative-democratic point of view, between legitimate and non-legitimate constitutions, just and unjust political and legal orders. It advances a normative criterion, the constituent popular power, with which one can judge the legitimacy of an existing constitution and of the basic structures of society to which it gave birth. A theory of the constituent power represents an ideal and pure type of democratic constitutional making in accordance with which we can measure and assess, that is recognize, the legitimacy of existing practices of constitutional founding in relation to whether and how much they approximate or depart from its participatory and inclusive method. For instance, the identity of the constituent subject, the people, becomes the defining standard by which the validity of democratic constitutions and institutional arrangements should be evaluated. For Schmitt, It belongs to the essence of democracy that every and all decisions which are taken, are only valid for those who themselves decide.90 This theory of democratic legitimacy is in accord with a definition of democracy as the regime in which the people is the subject of the constituent power and gives to itself its own constitution.91 It is the immanent principles of the term to constitute that prescribe that the founding of a new constitutional order must involve all those who will obey it. Correspondingly, the normative content of the constituent sovereign is one of participation. This constituent power demands that those who are subject to a constitutional order co-institute it. It grants validity to the constitutional document on condition of full participation of its prospective addressees. Consequently, the document that embodies the first constitution is a valid constitution, a binding higher law, only if the act that created it complies with the immanent principles of participation and inclusion, that is, if it has been performed
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Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 239 according to the normative prescription of its semantic meaning. Not any act can claim to be constituent and not any actor can claim to be a founder, even if the actor and the act have been successful, that is, effective in creating a new constitutional document. Should a person or group appropriate the power to constitute a legal order at the exclusion of all those who will be its addressees, the ensuing constitutional document should be regarded as invalid, unauthorized, the result of an arbitrary act of usurpation that violates the normative prescription of the constituent act. Such an act would not only amount to an incorrect use of the term to constitute, but it would also violate the normative content of its semantic meaning. It would not be a constituting act at all but rather an act of imposition, whereby a part illegitimately and with no authorization decides for the whole. This crucial distinction was captured by Carl Friedrich, who correctly observed that,
To make the constitutional decision genuine it is also necessary that it be participated in by some of those who are being governed as contrasted with those who do the governing. This differentiates such a constituent act from a coup d tat.92

The mere fact that somebody has prevailed in establishing a text claiming it to be the higher positive law is no reason to regard it as valid democratic law, as a law binding the individuals at whom it is directed. If the collective and inclusive meaning of the constituent act is not observed and preformed in accordance to its semantic meaning, valid legal norms do not come into existence, and the laws created in this way are void. They are simply an expression of might disguised as right.

NOTES I would like to thank Andrew Arato, Jay Bernstein, Richard Bernstein, Jean Cohen, Ann Kornhauser, David Plotke, Gunther Teubner, and Nadia Urbinati for their comments and suggestions. 1. Quoted in Jonathan Elliots Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, ed. James McClellan and M.E. Bradford (Cumberland, VA: J. River, 1989), vol. 2, 432. 2. Germaine de Stal, Des circonstances actuelles qui peuvent terminer la rvolution et des principles qui doivent fonder la rpublique en France, ed. Lucia Omacini (Paris-Genve: Librairie Droz, 1979), 39. 3. Maurice Duverger, Lgitimit des gouvernements de fait, Revue du Droit Publique (1948): 78. 4. For example, see Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996). 5. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999) and Jrgen Habermas, The Postnational Constellation. Political Essays, tr. Max Pensky (Cambridge, MA: The MIT Press, 2001). 6. For two telling examples, see Giorgio Agamben, Means Without Ends. Notes on Politics, tr. Vincenzio Binetti and Cesare Casarino (Minneapolis: University of Minnesota Pres, 2000) and Antonio Negri and Michael Hardt, Empire (Cambridge, MA: Harvard University Press, 2000). 7. Hans Kelsen, General Theory of Law and State (Cambridge, MA: Harvard University Press, 1945), 3878.
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8. Hans Kelsen, Introduction to the Problems of Legal Theory, tr. Bonnie Litschewski Palson and Stanley L. Paulson (Oxford: Clarendon, 1992), 124. 9. Hannah Arendt, On Violence, Crises of the Republic (New York and London: Harvest/ HBJ, 1972), 139. 10. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 57, 2345; On Revolution (London and New York: Penguin, 1963), 76, 77; The Origins of Totalitarianism (New York and London: Harvest, 1978), 4656. 11. Arendt, On Revolution, 60. 12. Michel Foucault, The History of Sexuality: An Introduction, vol. 1 (New York: Vintage, 1990), 85. 13. Bodin, On Sovereignty, tr. Julian Franklin (Cambridge: Cambridge University Press, 1992), 1. 14. Benedict de Spinoza, A Theologico-Political Treatise, tr. R.H.M. Elwes (New York: Dover, 1951), 207. 15. For the conceptual overlapping of the emperor and the sovereign, see Otto Gierke, Political Theories of the Middle Ages, tr. F.W. Maitland (Cambridge: Cambridge University Press, 1958), 1421, 3037 and Marcel David, La souverainet du people (Paris: PUF, 1996), 812. 16. It is this insight that informs Hardts and Negris concept of imperial sovereignty. Hardt and Negri, Empire, xixii, 3941, 8790, 13742, 160203. 17. John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (Indianapolis and Cambridge: Hackett, 1998), 194. 18. Raymond Carr de Malberg, Contribution la Thorie Gnrale de ltat, vol. II (Paris: Librairie de la socit du Recueil Sirey, 1922), 483. For an account of the disappearance of the constituent power from contemporary constitutional discourses, see Olivier Beaud, La puissance de ltat (Paris: PUF, 1994), 2104 and Antonio Negri, Insurgencies: Constituent Power and the Modern State (Minneapolis: University of Minnesota Press, 1999), 135, 30336. 19. Bruce Ackerman, for instance, explicitly distances his theory of constitutional politics from any affinity it may have with the constituent power. Ackerman disclaims the arbitrary character of acts of constituent power, because they imply that where the law ends ... pure politics (or war begins). Bruce Ackerman, We the People II. Transformations (Cambridge, MA: Harvard University Press, 1998), 11, 425. Likewise, Ulrich Preuss dislodges the constituent power from democratic foundations, though not in favor of populist presidential initiatives but in the name of negotiated processes among plural social groups. Ulrich K. Preuss, Constitutional Revolution: The Link between Constitutionalism and Progress, tr. Deborah Lucas Schneider (New Jersey: Humanities Press, 1995), 95 and The Roundtable Talks in the German Democratic Republic, The Roundtable Talks and the Breakdown of Communism, ed. Jon Elster (Chicago: University of Chicago Press, 1996). For Habermas, the popular constituent power may entail an organic, substantive, ethnic homogeneity to bind a community together and, as such, it can lean towards a militant ethnonationalism and a voluntaristic and essentialist model of nationalist politics. Jrgen Habermas, The Inclusion of the Other: Studies in Political Theory, eds. Ciaran Cronin and Pablo De Greiff (Cambridge, MA: MIT Press, 1998), 148 and Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, tr. William Rehg (Cambridge, MA: MIT Press, 1996), 46290. 20. George Lawson, Political Sacra et Civilis, ed. Conal Condren (Cambridge: Cambridge University Press, 1992), 47. 21. Ibid., 4750. 22. John Locke, The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1991), ch. 13, par. 149, 3667. For a discussion of Lockes theory of the constituent power, see Julian Franklins still unsurpassed study, John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right of Resistance in the Political Thought of the English Revolution (Cambridge: Cambridge University Press, 1978). 23. James Madison, The Federalist No. 40, The Federalist Papers, ed. Clinton Rossiter (New York: Modern Library, 1938), 257, 258.
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24. Thomas Paine, Rights of Man, in Paine: Collected Writings, ed. Eric Foner (Library of America, 1995), 579 and Emmanuel Sieys, Quest-ce le Tiers tat?, ed. Roberto Zapperi (Geneva: Droz, 1970), 180191. 25. Beaud proposes the following formulation: Constituent sovereignty signifies that, in contemporary states, the Sovereign is he who makes the constitution. La puissance de ltat, 208. Negri defines the constituent power asthe source of production of constitutional norms that is, the power to make a constitution and therefore to dictate the fundamental norms that organize the powers of the state. In other words, it is the power to establish a new juridical arrangement, to regulate juridical relationships within a new community. Insurgencies, 2. 26. For a helpful historical presentation, conceptual analysis, and comparative discussion of the concept of the constituent power, see Negri, Insurgencies and Claude Klein, Thorie et Pratique du pouvoir constituant (Paris: PUF, 1996). 27. Frank Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999), 48. 28. Schmitt, Die Diktatur (Berlin: Dunker & Humblot, 1994), 134, 1378. 29. Sieys, Reconnaissance et exposition raisonne des droits de lhomme et du citoyen, Orateurs de la Rvolution franaise. Les Constituants, vol. I, ed. Franois Furet and Ran Halvie (Paris: Pliade, 1989), 1013. 30. Schmitt, ber die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker und Humblot, 1993), 21, 2324. 31. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, tr. George Schwab (Cambridge, MA: MIT Press, 1988), 30, 17. 32. Carl Schmitt, Verfassungslehre (Berlin: Duncker und Humblot, 1989), 79. 33. Ibid., 88. 34. Even contemporary liberal thinkers have come to realize that democratic legitimacy presupposes a break with the inherited legality. For example, John Rawls has acknowledged that the constituent power of the people sets up a framework to regulate ordinary power, and it comes into play only when the existing regime has been dissolved. The Idea of Public Reason, Political Liberalism (New York: Columbia University Press, 1993), 231. 35. Antonio Gramsci, Selections from the Prison Notebooks, ed. Quintin Hoare and Geoffrey Nowell Smith (New York: International, 1971), 26, 210218, 318. According to Georges Burdeau, the constituent power is not a mechanism of peaceful times but an actor of critical periods. Trait de science politique: le statut du pouvoir dans ltat, vol. IV (Paris: Librairie gnrale de droit et de jurisprudence, 1983), 177. This dialectic between crisis and creation has been carefully examined by Negri, who maintains, that the act of suspending far from being defined in negative terms, founds and inheres to the possibility of positivity. The more the first decision shows itself to be negative, the more radically it opens a number of grounding, innovative, linguistic, and constitutional possibilities. With this the constitutive act opens positively. Negri, Insurgencies, 20, 319. 36. Jon Elster, Forces and Mechanisms in the Constitution-Making Process, Duke Law Journal 45, no. 2 (November 1995): 370. 37. Ibid., 375. 38. Madison, The Federalist Papers, no. 38, 235, 234. 39. As Arendt wrote with respect to the constituent power, it was only in the course of the eighteenth-century revolutions that men began to be aware that a new beginning could be a political phenomenon, that it could be the result of what men had done and what they could consciously set out to do. On Revolution, 467. 40. For a detailed distinction of this point, see Raymond Carr de Malberg, La Loi, expression de la volont gnrale (Paris: Economica, 1984), 10339. 41. Castoriadis, Philosophy, Politics, Autonomy. Essays in Political Philosophy, ed. David Ames Curtis (New York and Oxford: Oxford University Press, 1991), 1523. 42. Sheldon Wolin, Transgression, Equality, and Voice, Demokratia: A Conversation on Democracies Ancient and Modern, ed. J. Ober and C. Hedrick (Princeton: Princeton University Press, 1996), 64. 43. For a similar point, see Jacques Derrida, Declarations of Independence, New Political Science 15 (1986): 715. For an insightful comparative discussion of Arendt and Derrida related to
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the perplexities of foundations, see Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca and London: Cornell University Press, 1993), 86109. 44. Malberg de Carr, Contribution la Thorie Gntale de ltat, vol. II, 494. 45. Arendt, On Revolution, 1834. 46. Jacques Derrida, The Force of Law: The Mystical Foundations of Authority, Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson (New York and London: Routledge, 1992), 6. 47. As Arendt perceptively put it in her discussion of the French Revolution, the authority . . . of the new power, the pouvoir constitu... could not be guaranteed by the Constituent Assembly, the pouvoir constituant, because the power of the Assembly itself was not constitutional and could never be constitutional since it was prior to the constitution itself. On Revolution, 163. For a detailed discussion of this problem, set against Derridas and Honigs versions of the perplexities of foundations, see David Ingram, Novus Ordo Seclorum: The Trial of (Post) Modernity or the Tale of the Two Revolutions, Hannah Arendt. Twenty Years Later, ed. Larry May and Jerome Kohl (Cambridge, MA: MIT Press, 1996), 22150. 48. Frank Michelman, Constitutional Authorship, Constitutionalism. Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 77. 49. For an exposition of the constituent paradox, see Sheldon S. Wolin, Collective Identity and Constitutional Power, The Presence of the Past (Baltimore: Johns Hopkins University Press, 1989), 123. 50. Arendt, On Revolution, 163. This is precisely the case with Antonio Negris appropriation of the constituent power. Negri undoes the ties between the constituent act and constitutionalism. Any constitutional arrangement is totally opposed to the constituent power. Constitutionalism is the worst enemy of the constituent power. In fact, Negri says, it was devised and implemented to imprison and disempower the constituent power. Constitutionalism is a negative and coercive force (e.g. checks and balances) unleashed against the productive and creative power of the constituent multitude. Such an approach perceives the constituted order as a source of alienation, neutralization, and depoliticization. It seems as if the constituent power in order to protect itself, it has to remain in a perpetual condition of becoming and in an everlasting confrontation with any form of constituted arrangement. It is this logic that condemns the constituent power to an unending, infernal revolutionary movement. But in this case, the constituent power not only would fall into a state of legal nihilism, during which any legal determination would be open to continuous changes and modifications determined by the fleeting balances of power, it would also be inimical to any form of selflimitation and self-binding. A limitless constituent power does not only verge on dictatorship and arbitrariness; it also threatens its own existence by eschewing all determinations and figurations, which imply a degree of restrain and limitation. Here, Arendts qualms with some versions of the constituent power are fully legitimate. Negri, Insurgencies. 51. Kelsen, Pure Theory of Law, 2e, tr. Max Knight (Gloucester, MA: Peter Smith, 1989), 204 and General Theory of Norms, 256. 52. Kelsen, Pure Theory of Law, 256. 53. Beaud, La puissance de l tat, 213; Norberto Bobbio, Essais de thorie du droit (Paris: Bruylant L.G.D.J., 1998), 236; Ernst Wolfgang Bckenforde, Die verfassungsggebende Gewalt des Volkes-Ein Grenzb, egriff des Verfassungsrechts, Staat, Verfassung, Democratie. Studien zur Verfassungstheorie und zum Verfassungsrecht (Frankfurt/Main: Suhrkamp, 1991), 923; and Stanley L. Paulsen, Introduction, in Kelsens Thorie gnrale du droit et de ltat (Paris: Bruylant L.G.D.J, 1997), 7 54. Klein, Thorie et pratique du pouvoir constituant, 1929. 55. For example, see Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, Conceptual Change and the Constitution, ed. Terence Ball and J.G.A. Pocock (Lawrence: University of Kansas Press, 1988), 434. 56. Alexander Hamilton, The Federalist Papers, no. 1, 3. 57. Michael J. Perry, What Is the Constitution? (and Other Fundamental Questions), Constitutionalism. Philosophical Foundations, 100.

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58. Maurice Hauriou, Prcis de droit constitutionnel, 2e (Sirey, 1929), 246. Also, see Bernard Groethuysen, Philosophie de la rvolution Franaise (Paris: Gallimard, 1956), 247. 59. Burdeau, Trait de science politique, 203. 60. Carl Schmitt, The Nomos of the Earth, tr. G.L. Ulmen (New York: Telos, 2003), 73, 82. 61. Sieys, Reconnaissance et exposition raisonne des droits de lhomme et du citoyen, 1013 and Quest-ce le Tiers tat?, 180. 62. Hermann Heller, Staatslehre (Leiden: A.W. Sijthoff, 1971), 255, 222. 63. Bckenforde, Die verfassungsggebende Gewalt des Volkes Ein Grenzbegriff des Verfassungsrechts, 111. 64. Arendt, The Concept of History, Between Past and Future. Eight Exercises in Political Thought (New York: Penguin, 1993), 88, 63, 87 and What is Freedom?, Between Past and Future, 152. 65. Arendt, What is Freedom?, 152. 66. If this were the case, the radical freedom of the constituent actors would be seriously compromised and the constituent act to unpredictably start something new without being determined or conditioned by outside rules fatally undermined. If the principles of action are deduced from a metaphysical appeal to nature, reason, history, or divinity to become binding on political actors during constitutional politics acting with banisters, to paraphrase Arendt we could no longer view founding acts as a manifestation of the constituent power. And it would make no sense to speak of the power to voluntarily constitute itself in an legally organized political association without the mediation of external, restraining forces. It would no longer be a constituting power at all. 67. Arendt, On Revolution, 212. 68. Ibid., 203 and What is Freedom? 1523. 69. Arendt, On Revolution, 213. With this argument, she further developed her more theoretical statement that political power . . . is always limited power and since power and freedom in the sphere of human plurality are in fact synonyms, this means also that political freedom is always limited freedom. Willing, The Life of the Mind (San Diego and New York: Harvest, 1978), 201. 70. Arato, Civil Society, Constitution, and Legitimacy (New York and Oxford: Rowman & Littlefield, 2000), 333- 39f. 71. Arendt, On Revolution, 212. 72. Arendt, What is Freedom?, 152. For the principle of justice, see Hannah Arendt, Some Questions in Moral Philosophy, Social Research 51, no. 12 (1984): 741. 73. Kateb, Hannah Arendt, 1213. 74. Habermas, Between Facts and Norms, 28. 75. Ibid., 289. 76. Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, Political Theory 29, no. 6 (December 2001): 7767. 77. Habermas, Between Facts and Norms, 133. 78. Habermas, Postscript, Between Facts and Norms, 457. 79. Thomas Paine, Common Sense, in Paine: Collected Writings, 43. 80. Habermas, Between Facts and Norms, 1567, 185. 81. Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, 776. 82. Habermas, Postscript, 453. 83. Arendt, On Revolution, 213. This reinterpretation of Arendts notion of principled action by way of a selective reading of Habermass contribution to the literature of constitutional politics has, I believe, some considerable advantages. First, it avoids any reference to a developmental framework, which would approach the politics of foundations in terms of the gradual evolution of a fundamental norm. Neither Arendt nor Habermas view immanent principles as prior to the founding moment. Second, once detached from the theory of the ideal speech situation and discourse ethics, this strategy of retrieval avoids the danger of a quasi-transcendental derivation of these original principles and thus bypasses the resurrection of linguistic foundationalism that would have avoided the vicious circularity of the founding act only to transform language into a ground of politics. In addition, it confronts successfully the arbitrariness of political action and the specter of legal nihilism. Constituting politics can be as principled and consistent as normal politics even if they operate in an indeterminate and unstable environment where formal, legal constraints have been weakened
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by an audacious, disruptive constituent power, reclaiming its primordial, instituting powers. Although the extraordinary is not guided by existing legal norms it does obey an inner, principled logic. Thus, the constituent power is understood as a self-limiting and norm-oriented power, which although located outside the instituted reality, is still able to avoid the abyss of absolute voluntarism and the violence of a normless natural state without appealing to extra-political rules. Moreover, it bypasses with remarkable dexterity the dualism of universalism and contextualism. Principles of action are neither universal and trans-historical nor local and reflective of the dominant cultural ethos of a historical community. Rather, they are embedded in the founding act itself. Finally, the concept of principled or consistent action takes us back to the idea of public deliberation and argumentation, though not in Habermass strong version. Widespread, informal, and extra-constitutional processes of persuasion are necessary to apprise the participants of these immanent principles, whose existence are not intuitively apparent to the actors but require actual pre-constitutional procedures of public discussion among all involved parties. If the American Revolution was more successful that the French, according to Arendt, this was also partially due to the fact that it was, what we might call, a principled revolution. 84. Bckenforde, Die Verfassungsggebende Gewalt des Volkes, 112. This normative dimension of the constituent power was captured by a liberal constitutional thinker, Carl Friedrich, who though avoided any direct reference to Schmitt, recognized, in a reluctant tone, the intimate link between a theory of democratic legitimation and the notion of the constituent power. Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Boston and New York: Ginn and Company, 1950), 128. 85. Negri, Insurgencies, 1. 86. Schmitt, Verfassungslehre, 9495. 87. Ibid., 87. For a discussion of Schmitts theory of constitutionalism, see Andrew Arato, Forms of Constitution Making and Theories of Democracy, Cardozo Law Review 17, no. 2 (1995): 191231 and Dilemmas Arising from the Power to Create Constitutions in Eastern Europe, Cardozo Law Review 14, no. 34 (1993): 66772. 88. Cornelius Castoriadis, The Imaginary Institution of Society, tr. Kathleen Blamey (Cambridge: Polity, 1987), 36974; Philosophy, Politics, Autonomy. Essays in Political Philosophy, ed. David Ames Curtis (New York and Oxford: Oxford University Press, 1991), 72; and Radical Imagination and the Social Instituting Imaginary, The Castoriadis Reader, ed. David Ames Curtis (Oxford: Blackwell, 1997). 89. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Law Series, 1961), 96- 120, 245. 90. Carl Schmitt, The Crisis of Parliamentary Democracy, tr. Ellen Kennedy (Cambridge, MA: MIT Press, 1988), 24. 91. Schmitt, Verfassungslehre, 224. 92. Friedrich, Constitutional Government and Democracy, 128.

Andreas Kalyvas is Assistant Professor of Political Science at the Graduate Faculty, New School for Social Research.

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