Constellations Volume 12, No 2, 2005. Blackwell Publishing Ltd.

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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 con-
stitution, 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 posit-
ive institution can ever deprive them.
James Wilson
1
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 Stal
2
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 Duverger
3
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 con-
tested, or simply ignored. Whether it is dismissed as anachronistic a relic of an
early modern secularized theology and/or as dangerous an unpredictable, law-
less 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
224 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 cen-
tury 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 designa-
tion 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 fre-
quently 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 sover-
eignty, which divide between superiors and inferiors, those who command and
those who obey.
9
She also warned against the homogenizing drive of sover-
eignty 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 deci-
sionist 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 pro-
claimed 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.
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 225
2005 Blackwell Publishing Ltd.
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 obedi-
ence.
16
It is this centrality of command and obedience that accounts for Aus-
tins 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 sover-
eign, 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 battle-
fields 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 defini-
tion, 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 para-
doxes associated with a sovereign commander. Such a retrieval is also necessary
because as pivotal as it was in the American and French revolutionary and post-
revolutionary 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 sover-
eign. 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.
226 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
I
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 argu-
ing 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 law-
making, 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
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 227
2005 Blackwell Publishing Ltd.
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 discre-
tionary power of a superior command emanating from the top, the notion of the
constituent sovereign redirects our attention to the underlying sources of the insti-
tuted 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, how-
ever, 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 constitu-
tional 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
228 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 sov-
ereign constituent power may initiate a change in the law in violation of the insti-
tuted 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 sover-
eign 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 constitu-
tional 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 con-
stituent power but rather a constituted power. This amounts to a logical impossi-
bility 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 transforma-
tion, 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 abro-
gated, 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 open-
ness 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
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 229
2005 Blackwell Publishing Ltd.
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 constitu-
tions 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 tran-
shistorical prototype for all constitutions.
39
Second, any meaningful and compelling
distinction between higher and ordinary laws that assumes the superiority of con-
stitutional 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 con-
stituent 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
230 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 polit-
ical 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 constitutional-
ism 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 consti-
tuted order and its higher authority. Sovereign constituent politics is uniquely
attentive to moments of legal disruptions and discontinuities and avoids the prob-
lem of a total juridification of politics. Instituted reality does not exhaust and
should not consume all forms of political action, which often involves a confron-
tation 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 constitu-
tional 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 articu-
lated two such reasons (although they were ritualistically invoked since the end of
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 231
2005 Blackwell Publishing Ltd.
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 legiti-
mate 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 authoriza-
tion 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 constitu-
tion 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 unconstitu-
tional, 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 constitu-
tional 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 sov-
ereign 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
232 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 perpetu-
ally emanating novel constitutional norms, thus ceaselessly destroying its previ-
ous 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 for-
ever 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 recog-
nized 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 sover-
eignty. But the concept of the constituent power itself allows the possibility of
three responses, all of which are related to its juridical nature. Although associ-
ated with extra-legality, antecedent to any established legal form, the constitu-
ent 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.
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 233
2005 Blackwell Publishing Ltd.
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 uncon-
vincing. 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 open-
ing 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 recog-
nized, 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, ulti-
mately, particular norms.
57
The constituent power names and identifies these
instituting acts in the same way as the legislative, executive, and judicial func-
tions 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 inevi-
tably 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, con-
stitutional making is as genuine an act of (law) making as any other form of pro-
ductive, 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 legis-
lative 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 charac-
ter 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
234 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 re-
appears 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 neverthe-
less of the law. The constituent power is the potentiality of law, while the con-
stitution 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 success-
fully 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 transcen-
dental norms remaining vestiges of the declining Western metaphysical trad-
ition 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
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 235
2005 Blackwell Publishing Ltd.
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 self-
limitation, 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 arbitrari-
ness 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, dis-
tinction, 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 scat-
tered 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 constitu-
tional 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 found-
ing 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 personifi-
cation 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
236 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 imma-
nent 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 estab-
lish 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 adjec-
tive 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 sub-
stantive 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 partici-
pants.
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 prac-
ticed 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
Consti-
tutional 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 per-
formed, thus affirmed, during the constituting process and subsequently voluntarily
grant to each other. For Habermas,
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 237
2005 Blackwell Publishing Ltd.
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 constitu-
tional 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 relation-
ship 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 consti-
tution 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 excep-
tional moment of constitution making.
87
Precisely because the concept of the con-
stituent sovereign resituates the normative ideals of political freedom and
collective autonomy at the center of democratic theory, it points at a distinctive the-
ory 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
238 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 will-
formation. The constituent sovereign evokes the extraordinary moment of the dir-
ect 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 self-
determination, 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 constitu-
ent 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 repre-
sents 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
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 239
2005 Blackwell Publishing Ltd.
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 constitu-
tional 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 con-
stitutional 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 illegi-
timately 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 partici-
pated 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.
240 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 Totalitarian-
ism (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, Politi-
cal 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 Mod-
ern 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 char-
acter 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: Human-
ities 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 Chi-
cago Press, 1996). For Habermas, the popular constituent power may entail an organic, substan-
tive, 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 Haber-
mas, 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 Monar-
chy 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.
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 241
2005 Blackwell Publishing Ltd.
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 con-
temporary 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 Lib-
eralism (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 negat-
ive, 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
242 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
the perplexities of foundations, see Bonnie Honig, Political Theory and the Displacement of Poli-
tics (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, Decon-
struction 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 perplex-
ities 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 Foun-
dations, 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 revolu-
tionary 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 modifica-
tions determined by the fleeting balances of power, it would also be inimical to any form of self-
limitation 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: Bruy-
lant 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.
Sovereignty, Democracy, and the Constituent Power: Andreas Kalyvas 243
2005 Blackwell Publishing Ltd.
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 Ver-
fassungsrechts, 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 com-
promised 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 met-
aphysical 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 theoreti-
cal 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 lim-
ited 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 Princi-
ples?, 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 nihil-
ism. 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
244 Constellations Volume 12, Number 2, 2005
2005 Blackwell Publishing Ltd.
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 argu-
mentation, 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 proce-
dures of public discussion among all involved parties. If the American Revolution was more suc-
cessful 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 (Cam-
bridge: 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.