The Paradox of Constitutionalism or The Potential of Constitutional Theory?

Oxford Journal of Legal Studies, Vol. 28, No. 2 (2008), pp.
343367
doi:10.1093/ojls/gqn007
The Paradox of Constitutionalism or the

Potential of Constitutional Theory?
Downloaded from http://ojls.oxfordjournals.org/ at Juridische Bibliotheek der UU/University Library Utrecht on October 25, 2011
D. J. GALLIGAN*
Modern constitutionalism, the editors of the collection of essays under review

claim, has at its centre a paradox between the people as sovereign or con-
stituent power and the constitution; constitutions are the creation of the people
yet, once created, impose restraints on them. Examination of the paradox is the
object of the essays in this volume. By doing so, the editors Martin Loughlin
and Neil Walker contend, we shall be in a better position to understand a
number of trends impacting upon the activity of governing and to throw new
light on the character of the modern discourse of constitutionalism.1 The
result is a varied collection of essays, some philosophical, some case studies of
constitutional systems, others exploring constitutional questions arising from
globalization and the creation of supra-national institutions. The opposite trend
of political communities emerging within national constitutional systems is the
subject of one of the essays, while post-modernism is the inspiration for several
others. The alleged paradox is taken seriously in a few, paid lip-service in others
and ignored in the rest. That is a good thing since the paradox is of limited
utility to constitutional theory.
Before seeing why that is so, we need to clarify the subject matter. The first
step is to note that the essays are in the realm of constitutional theory, which is
to be distinguished from political theory generally. Constitutional theory
focuses on constitutions, while political theory includes the ideas and practices
of politics generally. Political theory includes constitutional theory, but the
editors point is that constitutional theory has its own subject and discourse,
which render it worth considering a separate, although related, undertaking.
The second step is to identify its subject matter, and here the territory is less

A review of M Loughlin and N Walker (eds), The Paradox of Constitutionalism: Constituent Power and
Constitutional Reform (OUP, Oxford 2006) (hereinafter Loughlin and Walker).
* Professor of Socio-Legal Studies and Director of the Centre for Socio-Legal Studies, Oxford
University and Jean Monnet Professor of European Public Law, Universita degli Studi di Siena.
Email: denis.galligan@law.ox.ac.uk
1
Loughlin and Walker, 1.
The Author 2008. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org
344 Oxford Journal of Legal Studies VOL. 28
clearly marked, but seems to be as follows. Among the matters preoccupying

political theory are relations between the people and their representatives, a
complex matter open to numerous interpretations and theories.2 The study of
representation leads naturally to the study of government in a democracy.
Constitutional theory, also being concerned with government, although not
necessarily in a democracy, focuses on the nature and significance of consti-
tutions, one aspect of which is how they provide for the involvement of the
people in government. Representation is relevant as part of the wider range of
constitutional provisions empowering and regulating citizens. From this range,
the editors choose as the main issues for analysis the paradox between the
people as a sovereign body and the constitution.
The appeal of this approach is its recognition of constitutions as worth
studying in their own right, and in identifying as an issue relations between
them and the people. A number of themes emerge, the evaluation of which is
the first objective of this review: the nature of constitutions and their social
purposes; the power of the people, or constituent power as it is called here, in
the formation of a constitutional order; their residual power during the life of a
constitution; and their authority to intervene in its workings. My second
objective is to clarify the theoretical study of constitutions by separating three
approaches: the normative, the conceptual and the descriptive. It is also
necessary as a preliminary matter to evaluate the utility of the alleged paradox.
My final objective is to direct attention to the social foundations of consti-
tutions and the descriptive theory emerging from them. Descriptive theory, the
poor relation of conceptual and normative approaches, ought to be promoted,
it is argued, to full membership of the theoretical family. In a review essay, I
cannot do justice to the breadth and depth of each of the sixteen essays, but
must be content to concentrate on those most directly relevant to my
objectives.
1. Constitutional Theory
Several approaches to constitutional theory are woven through the essays.
The main one is said to be philosophical, meaning that the concepts of
constitutionalism are analysed with a view to clarifying them and revealing their
complexities, contradictions and tensions. After affirming the philosophical
approach, the editors distinguish it from constitutional theory, the latter being
the domain of reflecting on the nature of actually existing regimes.3
This suggests a descriptive theory, the character of which is left unexplained.
A third approach is normative rather than descriptive, drawing on liberal
2
For an analysis, see B Manin, The Principles of Representative Government (CUP, Cambridge 1999).
3
SUMMER 2008 Paradox of Constitutionalism 345
constitutionalism and democratic principles. The tendency of authors to move
freely between the three approaches is a feature of the volume.
Normative constitutional theory identifies and develops the ideals, principles
and values on which constitutions ought to be based. The term constitutionalism,
which means pertaining to constitutions, has acquired normative connotations,
deriving from ideals of liberty and democracy, from which it is now inseparable.
Normative theory is not based on the empirical study of constitutions,
providing instead a foundation of principles which should guide their formation
and practical functioning; it also provides standards against which constitu-
tional orders may be evaluated.4 The principles are those of political morality,
refined within traditions of political thought, especially those of liberty and
democracy. Their relationship to the practical workings of constitutions is not
entirely clear: normative principles stand on their merits, but to be credible
must have some basis in legal practice or at least be feasible. Legal practice can
diverge from them, in which case they are the basis for its critical assessment.5
Whether conceptual analysis is a distinct type of constitutional theory is
arguable. It consists in identifying the concepts of constitutions and constitu-
tionalism, and analysing them according to the methods of philosophy.
Sovereignty and democracy, representation and adjudication are examples,
and since concepts enable us to describe and think about what we observe,6
the point of the analysis is plain: constitutions and constitutionalism are
understood by analysing the concepts of which they are composed. Again the
relationship between conceptual analysis and the practical world is problem-
atical, its tools being reason and imagination rather than empirical research.
Yet, where the concepts are also those of a social practice, as constitutions are,
the utility of conceptual analysis, which is not responsive to and reflective of the
practice, is questionable.
Descriptive social theory is the third branch of constitutional theory. This
presumably is what the editors have in mind in urging reflection on the nature
of actually existing regimes. The idea is not developed, unfortunately, for it
is potentially useful in augmenting the understanding of constitutions, and
essential to several of the essays. Of the three theoretical approaches, it is the
least advanced as a method of analysis, both in the essays and generally. Yet,
it has the potential to unlock aspects of constitutions which do not appear in
conceptual and normative accounts. The key feature of descriptive theory
(which is by no means straightforward or uncontroversial7) is the study of
4
The normative approach to constitutions is well-explained in D Dyzenhaus, The Politics of the Question of
Constituent Power in Loughlin and Walker (hereafter Dyzenhaus).
5
Dyzenhaus contends that some of the normative principles, will be necessary to make sense of legal practice
(at 144) suggesting perhaps that they are immanent in legal practice.
6
T Nagel, The Central Questions London Review of Books, 3 February 2004 12 at 13; for further discussion
of conceptual analysis, see A Ryan, The Philosophy of the Social Sciences (Macmillan, London 1970) and P Baert,
Philosophy of the Social Sciences (Polity, Cambridge 2005).
7
For a recent broadside against the notion of descriptive theory see R Dworkin, Justice in Robes (Harvard
University Press, London 2006).
constitutions, constitutional practice and the ideas that inform them. The point
is to understand them as social formations, which are common to modern
societies and which guide the actions of individuals, groups and institutions.
Various issues then arise: what is their character as a social formation? Why do
societies adopt constitutions? What are their features, how do they work and
what social ends do they serve? The answers to these questions are reached by
examining constitutions, their workings and their social context, from which
it may be possible to identify patterns recurring across different societies at
different historical periods, and to formulate generalizations about them.
Descriptive theory divides along two lines of enquiry, one sometimes called
analytical, in that it concentrates on the analysis of ideas and concepts occurr-
ing in practice, and to that extent overlaps with, even merges into, the philo-
sophical: H. Kelsens and H.L.A. Harts theories of law being examples. The
other is termed sociological or law-and-society in that it engages with empirical
research into the way things work in practice. The two approaches are not as
different as often proposed, with Hart claiming his was both. We need not
discuss them here, except to note two points: one is that the core feature of
descriptive social theory is that it purports to describe a social phenomenon,
the accurate portrayal of which being the test of its worth; the other is that
descriptive theories vary in their reliance on empirical research. The analytical
tradition of jurisprudence as a form of descriptive theory proceeds on the basis
of elementary features of legal systems, while the sociological, law-and-society
approach emphasizes the need for empirical foundations. And just as analytical
theory could do with more empirical data, the law-and-society approach
would benefit from more analytical theory.8 To show the potential value to
constitutionalism of the descriptive approach is one of my aims in this review.
2. Beyond Paradox
With this sketch of theoretical approaches in mind, we now return to the
paradox and question its utility. The alleged paradox is that the power of
government derives from the consent of the people, and yet must be divided,
constrained and exercised through distinctive institutional forms.9 The later
substitution of sovereignty for consent of the people sharpens the point: the people
are a sovereign that cannot exercise sovereignty because their power must be
expressed through constitutional forms already established.10 Further on in
the essays, the terminology changes again to that of the people as constituent
power in relation to constitutional form. I shall refer to this as the paradox
8
I have discussed these issues at more length in DJ Galligan, Law in Modern Society (OUP, Oxford 2006) chs
1 and 2.
9
Loughlin and Walker, Introduction 1.
10
Ibid 1.
of popular sovereignty. In the only essay that takes seriously talk of paradox
(of which he finds several paradoxes as he puts it), James Tully isolates seven
elements in the relation between constituent power and constitutional form.11
They are presented in a complex analysis of modern constitutionalism that I
shall not attempt to examine here, except to query whether anything is gained
by calling them paradoxes.
On a first reading, we appear to have entered the classic debate over the
relationship between the people and democracy on one side, and constitu-
tional and legal constraints on the other. Stephen Holmes describes it as:
a profound opposition between majoritarian politics and constitutionally
anchored restraints.12 It is a recurring theme of liberal political theory, and
was prominent in the pre-constitutional debates of the United States with
Jefferson and Paine on one side, Madison on the other, and can be traced to
the roots of the republican tradition. In the case of Jefferson versus Madison,
the issue was presented as the anti-constitutionalists versus the constitutionalists,
the former holding that just as persons of free-will cannot bind themselves as to
the future, similarly a group cannot bind itself or its successors. The anti-
constitutionalists found support in Blackstones views on the sovereignty of the
English Parliament and its incapacity to bind itself. In reply, Madison and
others disclaimed the English doctrine as anti-constitutionalist and applied to
constitutions Lockes claim that: the end of law is not to abolish or restrain but
to preserve and enlarge freedom.13 Interesting as they are, these debates and
their literature have no place in the essays, their paradox being quite different.
The term paradox is often used loosely and removed from the standard
meaning of logical inconsistency, which is what the editors presumably have in
mind, the classic case being that both A and not-A are true or appear to be
true.14 If the inconsistency can be explained, the paradox is resolved; if not,
it remains a paradox. So, the question to ask is whether the concept at issue
contains a logical inconsistency. The concept of parliamentary sovereignty, for
instance, poses a paradox: parliament is sovereign, which suggests that it may
make any law it wishes, but in order for sovereignty to continue over time it
cannot include the power to bind itself or its successors. However, constitutions
are not just about abstract concepts but also their practical implementation.
A paradox at the conceptual level is likely to be resolved in the workings of
constitutions, as the parliamentary case shows: sovereignty is redefined as
not being absolute but subject to the exception that one parliament cannot
bind itself or another. Without redefinition, the concept of parliamentary
sovereignty either could not be applied or its application would lead to
11
J Tully, The Imperialism of Modern Constitutional Democracy in Loughlin and Walker (hereafter Tully).
12
S Holmes, On the Passions and Constraint (University of Chicago Press, Chicago 1995) 134.
13
Quoted in Holmes (n 12) 152.
14
The Oxford English Dictionary allows several meanings from logical inconsistency to being contrary to
received opinion to absurdity.
unacceptable consequences. It is common to find that a paradox at the con-

ceptual level is resolved in constitutions according to practical and normative
considerations.
The editors and several contributors claim a paradox in institutional forms,
which presumably means rules, as to how popular sovereignty is exercised.
They also talk of rules dividing and constraining, but, without examples, it is
unclear what they have in mind. The claim is ambiguous: it could mean that
the concept of popular sovereignty is inconsistent with any rules governing its
exercise; or that the inconsistency lies in constitutions imposing substantive
restrictions on the powers of the people.15 The second, the type of paradox
referred to by Holmes, is the classic case of substantive restrictions on the will
of the majority, imposed, normally, in order to protect the rights of individuals
and minorities. This is often put in terms of a paradox, although Holmes shows
that, placed in the context of practical constitutions where a balance is struck
between majority will and other social goods, the conceptual paradox either
disappears or loses its point.16 However, this is not the paradox the editors and
contributors have in mind.17
It is the first that preoccupies them: that to restrict popular sovereignty by
rules creates a paradox. Their preoccupation is, I suggest, unwarranted. To
begin, it is hard to separate sovereignty of the people, which is an abstract
concept, from some rules governing its practical expression and implementa-
tion. Since popular sovereignty is meant to have practical significance for
constitutions, an argument can be mounted that such rules partly constitute the
concept, for without them implementation could not be achieved.18 Moreover,
there is no necessary incompatibility between having sovereignty and requiring
certain rules be followed in exercising it. Rules channel the use of sovereignty
without necessarily reducing it, in the same way that the rules of grammar and
syntax do not reduce the power or scope of language.19 Rules for the election
of representatives, rules of parliamentary procedure, rules deriving from the
rule of law are examples of institutional rules through which popular sover-
eignty is exercised without obvious sign of a paradox. Much depends on the
character of the rules, which could be formulated to impede and restrict
sovereignty; but they need not do so, and, if suitably drawn, are empowering
rather than restricting. Without rules it is hard to see how popular sovereignty
could be exercised. Rules channelling the exercise of sovereignty also have
15
It is the second that occurs most often in legal and political theory and is usually put in terms of restrictions
on the will of the majority.
16
Holmes (n 12) ch 5.
17
Loughlin and Walker, Introduction; C Mollers, We are (afraid of) the People: Constituent Power in German
Constitutionalism (hereafter Mollers) and UK Preuss, The Exercise of Constituent Powers in Central and Eastern
Europe (hereafter Preuss); R Nickel, Private and Public Autonomy Revisited: Habermas Concept of Co-originality
in Times of Globalization and the Militant Security State (hereafter Nickel ), all in Loughlin and Walker.
18
For discussion of this idea in a different context, see A Marmor, Positive Law and Objective Values
(Clarendon Press, Oxford 2001) ch 1.
19
See further Holmes (n 12), Introduction and ch 5.
practical advantages, providing certainty and predictability in the conduct of
government. They save the people the trouble of having to decide each time
what it means and how to use it, matters about which there are bound to be
disputes, the resolution of which takes time and energy. If sovereignty is linked
to government, the case for rules of implementation is strengthened, for they
make possible effective government, that is, government which is stable and
continuing over time. For these reasons, the claim that constitutional rules for
its exercise are incompatible with popular sovereignty, and therefore create
a paradox, is unpersuasive.
There is another reason, perhaps more fundamental, why the paradox-
approach to constitutionalism generally, and popular sovereignty in particular,
is of limited use. Implicit in this approach is the idea that analysis of the
paradox, meaning analysis of the concept in which it occurs, will lead to an
understanding of the character and place of popular sovereignty in modern
constitutions. That presumably is the point of the approach. If so, it is
mistaken, for conceptual analysis, without reference to the historical and social
context in which it occurs, is just the starting point (arguably a necessary one)
to which must be added the study of how the concept is used in actual
constitutions and the reasons why. Popular sovereignty illustrates the point:
study of the western tradition, expressed in British-type, American and
continental European constitutions, shows that the meaning, significance and
scope of popular sovereignty are to be found in the deep structures of
constitutions and governments, in the ideas surrounding them, and the social
and historical conditions from which they arose. Within that tradition, popular
sovereignty is a myth, a useful fiction, invoked to legitimate forms of govern-
ment which, far from encouraging involvement of the people, keep them out.
The notion of representation, itself evolving in the social conditions of early
modern Europe and especially England, has been used to create a distinctive
approach to constitutions that continues today. So effective has it been that it is
considered the natural order without rivals, the very end of constitutionalism.20
The point for present purposes is that, if we are to comprehend popular
sovereignty in modern constitutions, conceptual analysis must lead on to
consideration of their social and political setting.
3. On the Nature of Constitutions: Constituent Power,

Constitutional Form and Constituted Power
The familiar terms of constitutional discoursethe people and sovereignty,
representation and democracyare replaced in the essays by constituent power,
20
There is an alternative constitutional tradition, largely now concealed, which is displayed in John
McCormicks essay: People and Elites in Republican Constitutions, Traditional and Modern (hereinafter
McCormick).
constitutional form and constituted power. Constitutional form, or the constitution,

is familiar enough; the other two in Anglo-American constitutional analysis less
so. Yet, their importance is plain: Central to virtually all formulations of the
paradox of constitutionalism is that of the tension linking . . . constituent power
and constitutional form observe the editors.21 That the constituted power is not
mentioned is significant, and a dimension that merits closer analysis than it
receives here. Despite constituent power being at the core of the volume, the
editors offer little elucidation of it in their introduction, other than linking it to
the people and associating it with politics as opposed to law. Some will find it
as enigmatic at the end as at the start.
However, since the c-words are the terms of discourse, I shall take them as
the starting point in analysing constitutional systems. They owe their currency
to Emmanuel Sieyes (17481836), who is described as a theoretical architect
of the French Revolution of 1789.22 His writings are directed at the events of
the time, but are also intended as a descriptive theory of constitutional orders.
In a pamphlet published in 1791, entitled Quest ce que le tiers etat?, Sieyes
contends that to understand constitutions we must consider the formation of
political society, which has three stages. First, individual persons unite and in
doing so form a nation, which consists of the combination of individual wills.
At the second stage they coordinate their activities and agree on common needs
and how to achieve them. That, according to Sieyes, marks the transformation
from a coming together of individual wills to the formation of a common will,
which is essential to a society. The third stage is the creation of a constitutional
order and a system of government consisting of the delegation of power by the
community to its representatives.23 Only at this stage can the common will of
the community be identified and developed fully; and only then is a mature
political society realized. Its elements are expressed in the three cs: the people
as a community, or nation as Sieyes calls it, are the constituent power, the
government apparatus is the constituted power and the terms on which it
functions are the constitution.24
Several comments are warranted. The first is the approach: it is that of the
social scientist describing constitutional orders as recurring social formations
whose properties can be analysed and generalized. Second, the people as the
constituent power, through their representatives, create a constitution and
establish a system of government, which, as the constituted body, has only
the powers delegated to it by the constitution, and cannot alter the terms
21
22
M Sonenscher, Introduction to E Sieyes, in M Sonenscher (ed), Political Writings (Hackett, Indianapolis
2003) viii. A parallel may be drawn between Sieyes account and that of HLA Hart in The Concept of Law
(Clarendon, Oxford 1961) where the latter demonstrates the social role of law by showing how a community
moves from a pre-legal to a legal system. Earlier statements of similar ideas are found in numerous earlier writings:
see Q Skinner, Visions of Politics: Renaissance Virtues (CUP, Cambridge 2002) vol II, ch 9.
23
Sonenscher (n 22) 134135.
24
Ibid 34 and 134135.
of the delegation. The affairs of government are left to the constituted power
without interference from the people as the constituent power. Restraints on
interference might be justified on normative grounds, but that is not Sieyes
point; his point is the practical one that interference threatens the purpose of
having a system of government and leads to confusion and ineffectiveness.
Restraint is necessary for a viable political society. Constituent power, never-
theless, remains with the people and cannot be divested. The government is
authorized to act on behalf of the people in the conduct of affairs and in its
name. But it is never more than a delegated power that is subject to the final
authority of the constituent power, in the sense that the constitution, and hence
the apparatus of government, can be changed and modified by it.25 Finally,
Sieyes characterization of the people as the constituent power, and therefore
the source of constitutional authority, is not premised on democracy or direct
popular rule. The common will of the people is best interpreted by their
representatives, who may or may not be democratically elected, Sieyes himself
preferring monarchy to republicanism.26
On these social foundations a descriptive model of a constitutional order
takes shape. To the question why people choose to combine in this way, Sieyes
answer is the needs of the society to achieve common goals for which govern-
ment, as opposed to the people acting singly or collectively, is a necessary and
effective means.27 Constitutional orders then have two social foundations:
shared goals and the capacity of government to achieve them. As to the second,
Sieyes countryman Emile Durkheim more than a hundred years later
expressed the same idea: if social life is to last, it must take on a definite
form and organize itself; then Law is nothing more than this very organization
in its most stable and precise form.28 A complex society requires not only laws
but a system of government to make, interpret and apply them, which is the
purpose of a constitution.29 The link between societys need to achieve its
collective ends and legal orders is not self-evident, since there are forms of
social organization other than law.30 The case for a constitutional order is not
that society has no other way of achieving its collective goals, but that its
capacity to do so is increased by a system of government. Government brings
25
See further Nickel (n 17) 148149.
26
The relationship between the people and their representatives is a complex feature of Sieyes account; for
further explication, see his Quest ce que le tiers etat? and M Sonenschers Introduction in Sieyes (n 22). The
analysis in L Jaume, Constituent Power in France: The Revolution and its Consequences in Loughlin and
Walker (hereinafter Jaume) helps considerably in understanding Sieyes account.
27
This aspect is discussed with insight in Preuss (n 17).
28
E Durkheim, The Division of Labour in Society (Free Press, NY 1984) 25.
29
Note the similarities between Sieyes approach and H.L.A. Harts concept of a mature legal system: see Hart
(n 22).
30
R Ellicksons study of the ranchers of Shasta County California shows how effective informal orders
can be; it also contains a useful discussion of the issues raised here; see R Ellickson, Order Without Law (Harvard
University Press, Cambridge, MA 1991). For a critique of functionalist theories of law, see Galligan (n 8),
chs 7 and 8.
organizational capacity,31 by which is meant the capacity of the institutions,

organizations and processes of government to achieve collective goals. The idea
can be linked to Max Webers account of bureaucratic organizations, their rule-
based rationality, their reliance on specialization and their superiority over other
types of social organization in achieving societys ends.32 Modern constitutional
orders are classic cases of Webers notion of legal rational authority.
As to social goals, that certain of them have to be realized if life is to be
tolerable runs through political sociology from Hobbes to Hume to Hart, and
must include public order and security of the person, protection of property
and stability of contracts. If protections of these kinds are necessary for
survival, as Hart contends, others deriving from visions of a good society are
often added, such as the protection of consumers, workers and the environ-
ment. Liberal societies value liberty and the rights flowing from it, and provide
for their protection. The same societies are likely to consider other rights so
fundamental as also to justify constitutional protection.33 Social goods come in
layers, starting with those necessary for survival and adding others according to
the needs, values and aspirations of a community. Whatever the main social
goods valued by a society, a constitutional order provides the basis for their
being achieved, without guaranteeing they will be. The value of constitutions
and governments is now plain: their curtailing and channelling raw political
action by the people is offset by their utility in securing social goods in the
interests of all. Constitutional orders are then positive rather than negative,
enabling and empowering, as well as restrictive. But they are restrictive,
restrictive that is of governments, for governments, as Sieyes states, may inflict
damage on their people, hence the multitude of political precautions that are
added to the constitution.34
The mention of raw political action prompts a third, less obvious feature
of constitutional orders: by curtailing raw political action and channelling
it through forms and processes, constitutions remove the risks of popular
movements and unrestrained democracy, concern for which echoes down the
history of constitutions. From republican Rome through the medieval Italian
city-states, from the constitutional debates among English Parliamentarians to
the Federalist Papers, fear of the mob, the common cry of curs as Coriolanus puts
it, has shaped constitutions. Too much democracy is dangerously unpredict-
able, as the French experience, here explained by Lucien Jaume with clarity
and perception,35 shows how the sovereign people, through their clubs,
31
Ibid 217220.
32
M Weber, in G Roth and C Wittick (eds) Economy and Society, (English edn, California University Press,
Berkeley 1968).
33
Habermas attempts to show that the recognition of rights is somehow definitional of a constitutional order;
see the illuminating analysis of these claims in Nickel (n 17).
34
35
See Jaume (n 26).
demonstrations, and petitions became the source of all danger.36 The people
are also prone to split into factions, as the experience of early Italian republics,
such as Siena and Florence, demonstrate, with weak government resulting. The
lesson for post-medieval constitutional thought was the need for representative
government centred on one person, or a small group, who could act in the
name of the people in maintaining order and protecting property, while keeping
the people at bay. Modern constitutionalists and their constitutions, despite a
commitment to democracy, still harbour doubts about the role of the people in
the affairs of the government.37
Sieyes account is more intricate and subtle than can be shown here. Yet,
even in outline we see a social account of constitutions taking shape. Sieyes
uncovers their social foundations, reveals how and why the people form a
political society, why they delegate authority to government, and what social
goods are achieved by it. A fuller analysis would raise questions that I cannot
consider here, but it remains an attempt to move beyond both conceptual
analysis and normative prescriptions, and for that alone is valuable.38
4. Constituent Power and the Formation of Constitutions

Two issues central to several of the essays are: who is the constituent power and
what is its role in the formation of constitutions? Sieyes answer is plain on both
counts: the constituent power is the people, who through their representatives
create a constitution. This is not a normative claim about the rights of the
people or about how constitutions should be created; it is explicitly descriptive
of how and why they are formed. When the discourse moves from the descri-
ptive to the normative, it changes and becomes the claim that the constituent
power in modern societies should be the people, for democracy is tied to
the people and the legitimacy of legal authority depends on a democratic
foundation.
The normative approach is portrayed in Martin Loughlins stimulating essay
on the Levellers attempts, during the upheavals of the 17th century, to
transform the English constitution by giving the common people the vote and
regarding Parliament as a constituted rather than sovereign power, that is
constituted by the people, to whom it should be answerable.39 The Levellers
ideas, expressed in numerous pamphlets and in the Putney debates with
Cromwell, Ireton and other officers of the New Model Army, are episodes
36
Well-described in Jaume (n 26) 68.
37
A point to which I return in the final section.
38
Much of Damian Chalmers essay, if I understand it, is compatible with, indeed is a stimulating elaboration
of, the main elements of Sieyes account; its force, however, is blunted by undue obscurity of expression; see
D Chalmers, Constituent Power and the Pluralist Ethic in Loughlin and Walker (hereinafter Chalmers).
39
M Loughlin, Constituent Power Subverted: From English Constitutional Argument to British
Constitutional Practice in Loughlin and Walker (hereinafter Loughlin).
of English constitutional history that ought to be better known.40 Whether they

are a turning point in the understanding of popular sovereignty, a critical
innovation, as Loughlin claims, is debatable.41 Similar ideas had long
circulated in Britain, drawing on the republican tradition of Machiavelli and
others stretching back to Roman Law.42 That, however, is a debate for another
time,43 the present point being that Loughlin equates constituent power with
popular sovereignty, the one being defined in terms of the other. This may be
convincing normatively but of limited utility descriptively, for as a matter of fact
the focal points in the formation of constitutions need not be, and often are
not, the people as a popular sovereign. England of the Levellers had its power
base in King, nobles, men of property, and, marginally, 40-shilling-freeholders,
who on one interpretation could be considered the constituent power. On
another interpretation, the King-in-Parliament was the constitutive power,
the idea being that Parliament was not just a representative body, but
the abstracted quintessence of the whole commonality of England.44 The
Levellers could not (and did not) argue there was no constituent power; their
grievance lay in the common man being excluded from it and their solution was
the by-no-means-novel claim that the common people (meaning free men of
age) should be included, at least by voting and possibly in more fundamental
ways.
Here we encounter a major concern with the idea of the constituent power:
Loughlin and others assume it must be the people.45 That the people should be
responsible for their constitution is now a principle of democratic societies.46
In reality, the constituent power is not often exercised by the people in any
40
Several of the pamphlets and extracts from the Putney Debates are reproduced in A Sharp (ed), The English
Levellers (CUP, Cambridge 1998). A full transcript of the Putney Debates is available at www.http://
courses.essex.ac.uk/cs/cs101/putney.htm
41
His claim that the Levellers proposed constitution, The Agreement of the People of October 1647, was the
first attempt at a written constitution is surprising; the Republic of Siena had one in the 14th century, as did
numerous neighbours shortly thereafter.
42
The literature is voluminous; on the influence of republican ideas on the Levellers, see SD Glover, The
Putney Debates: Popular Versus Elitist Republicanism (1999) 164 Past Present 4780. For an historical account
of the notion of popular sovereignty, see Skinner (n 22), especially vol II, chs 2 and 9. George Buchanans De Iure
Regni apud Scotos (Edinburgh, 1559) stands out as an early descriptive account of constitutional orders which is
remarkably similar to that of Sieyes 200 years later and which places the people at their centre.
43
The arguments and contentions of the Levellers are much less clear and consistent than Loughlin suggests;
for example, The Agreement of the People of October 1647 and The Humble Petition of John Lilburne 11th
September, 1648 differ in their claims concerning the relationship between Parliament and the people: in the first,
the people are sovereign; in the second, parliamentary sovereignty is affirmed; see further Goldsworthy, The
Sovereignty of Parliament: History and Philosophy (Clarendon, Oxford 1999) 135ff. On one reading, the Levellers
challenged the very basis of the English constitution by claiming full sovereignty of the people; on another, they
accepted the notion, dominant at the time and continuing even now that the people consent through elections to
the sovereignty of Parliament. Consent is a condition of the legitimacy of parliamentary sovereignty. The second
reading is in my view the more accurate.
44
Quoted in Goldsworthy (n 43) 97.
45
Other essays adopting a similar normative approach to constituent power are: Mollers (n 17); Jaume (n 26)
and N Walker Post-Constituent Constitutionalism? The Case of the European Union in Loughlin and Walker
(hereinafter Walker).
46
The Levellers did not express their claims in terms of democracy, which had a quite different meaning at the
time; see Sharp, Introduction: the English Levellers, 16451649 in Sharp (n 40).
true sense, but instead by a few. The tendency of rulers and their apologists,
from the Roman Republic on, to claim to act in the name of the people, is
misleading and quite different from the people ruling themselves. Constituent
power can be defined as the people; but it is then a normative stipulation as to
what should be the case rather than what is.
The normative principle can be the basis for empirical questions, as is well-
displayed in Neil Walkers essay on the European Union. Adopting a normative
view of what the constituent power should be, he asks whether it is being
realized within the European Union.47 He distinguishes the principle that the
people ought to be the constituent power from the empirical question as to
what extent they are, the result being a nuanced analysis of the place of the
people in the European constitutional order. A strong point of the essay is the
recognition that constitution-building, and the role of the people, is a con-
tinuing, dynamic process. Both Lucien Jaume and Christoph Mollers begin
their studies of the French and German constitutions respectively with the
normative idea of the people as constituent power, and then consider the
historical experience in each case. We glimpse the difficulties the people had in
exerting their sovereignty and gaining a place in government, important issues
to which I return later. We have seen enough, however, to doubt whether
expressing them in terms of constituent power adds anything to either
normative or empirical analysis.48
An alternative is to study constitutions as they are rather than as they should
be, to ask what constituent power means, if anything, in different situations,
and to consider how that analysis relates to the formation of constitutions.49
Such an enquiry reveals aspects of constitutional orders quite different from
those of the normative approach.50 The concept of the people is a good example:
do the people combine to create constitutions, and, if not, how are they
formed; how is the concept of the people used, and what is its significance when
the people themselves are barely present; who speaks for them; what is the
relationship between them and their representativesare some of the questions
arising. The reality is that the people, in the sense essential to constituent
power, is a fiction of theory rather than a reality of experience. Monarchs,
parliaments and tyrants, govern or claim to govern for and on behalf of the
people. This fiction of representation, as Edmund Morgan calls it, helps
legitimate constitutions and government, whatever their character, even if the
47
This is a theme running through Walker (n 43).
48
Compare Chalmers claim that the concept of constituent power is fundamental to constitutional analysis:
see Chalmers (n 38) 293303.
49
J Tullys essay, if I understand its point, is aimed at identifying various senses of constituent power, some of
which pertain to the people, others have a different focus; they include not just political power but also economic
power and the power of self-protection; see Tully (n 11) 320328. How these last two relate to constitutionalism
remains obscure for me.
50
Essays by Jaume on the French experience of constituent power and by Mollers on the German contain
useful descriptive elements.
people have little or no role in either.51 It is not usually a matter of full involve-
ment or none at all; the form popular involvement takes, and how extensive it
is, varying from one constitutional order to another.
Once the veil is lifted and the fiction exposed, the way is clear to determine
just who creates constitutions or influences their creation. And while this is a
matter of empirical study across systems, we know from both past and recent
constitutional eventsfrom the American Constitutional Congresses, the post-
war experience of Germany and Japan, the velvet revolutions of East Europe,
to military takeovers in Pakistanthat it is a complicated matter, with different
groups and interests playing parts that intersect, compete and collide.
Dominant groups and interests emerge, but are unlikely to be effective without
the cooperation, collusion or passive toleration of the people. The people may
be involved directly as in the popular insurrections of East Europe (although
only a fraction of them were so), or they may be enlisted to give approval and
add legitimacy to the deeds of others. Popular approval can be instantaneous or
gained over time, for the acceptance of constitutions and their legitimacy
are social processes subject to many variables. Jaumes essay on the French
experience at the time of the revolution, on the way that constituent power was
used and abused, and in particular how the vagaries of representation played
such a major part, is an example of how fertile enquiries into these and related
matters can be.52
In contemporary societies, the focus on representation could be replaced by
political pluralism, which, according to Paolo Carrozzas essay, poses a crisis for
modern constitutionalism.53 Pluralism signals a lack of the necessary con-
ceptual and ideological unity assumed to be needed for the act of constitution-
making, which becomes instead a process over time reflecting political diversity.
The claim is suggestive, given the plural nature of modern societies, but is
surely exaggerated since such societies appear to be coping fairly well, although
one can see how social diversity could undermine a constitution. A related idea,
awaiting further study, is that political struggles may shape and reshape the
very constitution within whose contours they occur. In Gerald Leonards
words, we are inclined today: to see politics as working within a constitutional
order rather than working out that constitutional order.54 This ties-in with
Stephen Griffiths notion of popular constitutionalism, which means that
51
ES Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (Norton and Co,
New York/London 1989) 45.
52
Jaume (n 26) 67. C Mollers offers a partly descriptive account of the place of the people in German
constitutionalism. He shows how their constituent power passed from the princes to the people: Mollers (n 17) 91;
he also shows that the idea of a democratic constituent power was not historically at the centre of German
constitutional discourse, nor has it been since the Second World War.
53
P Carrozza, Constitutionalisms Post-Modern Opening in Loughlin and Walker (hereafter Carrozza)
179180.
54
G Leonard, The Invention of Party Politics (California University Press, California 2002) 15. For further
analysis along these lines, see LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
(OUP, New York/Oxford 2004).
constitutional limits [are] enforced through politics and by the people rather
than in the courts.55
The diverse ways in which the people engage with constitutions suggests that
the distinction between formation and continuity is not clear-cut. The pedigree
of constitutions, argues Walker, is a different matter from their continuity.56
Constitution-making results in a constitution, a written document, a defining
moment; but it is not the end of constitution-making, nor the only or most
important defining moment in a life of defining moments. As Walker puts it:
Pedigree . . . cannot be regarded as fixed and immutable when assessing a social
construct such as the emergence of a political community.57 Settling on a
formal constitution is a major step, and its pedigree significant, but what the
constitution means and how it works is a continuing process in which the
people, collectively or in fragments, are involved in many ways. Griffins study
of constitutional change in the American context challenges the view that the
people can exert their constituent power only through the formal amendment
procedures. From the start, he claims, constituent power has changed the
constitutional order through informal constitutional change.58 He distinguishes
between legal and non-legal change, meaning by the latter that the Constitution
interacts with political institutions and actors.59 His argument is that the
Constitution created internal and external contexts for non-legal constitutional
change,60 which go beyond interpretation of the text and enable political and
institutional processes to bring about substantive change. In order to under-
stand such change, and the role of the people in it, specific issues, such as the
power and authority of the President, need to be examined. That must await
future research since Griffins objective is to explain the notion of non-legal
change through political and institutional processes, rather than examine
specific issues.
He leaves no doubt, however, as to the importance of empirical and historical
research as a prelude to perennial normative projects.61 Even without such
research, it is plain that the making of constitutions and their continuing
modification is a complex social process; the people are involved, but just how
and to what extent they are, are matters for future consideration. Whatever the
results, it is doubtful that much use will be found in the notion of a brooding,
omnipresent constituent power.
55
S Griffin, Constituent Power and Constitutional Change in American Constitutionalism, in Loughlin and
Walker (hereinafter Griffin).
56
Walker (n 43) 261ff.
57
Ibid 263.
58
Griffin (n 55) 50.
59
Ibid 49.
60
Ibid 63.
61
Ibid 66.
5. Constituent Power: Dissolution or Residue

How constituent power relates to the constitution after its formation occupies
several of the essays. One aspect, colloquially put by David Dyzenhaus, is:
Does constituent power disappear at the moment it turns into authority or
does it hang around, threatening to disrupt its creation?62 Christoph Mollers
presumably means something similar in stating: democratic government always
leaves room for a supplement, a surplus of democratic practice that cannot
be fully included into formal constitutional procedure.63 The issue then is
whether the constituent power or the democratic process, (the two tending to
run together) become wholly absorbed into the constitution, and therefore
regulated by it, or whether a residue of power remains in the people outside the
constitution.
This raises not one question but numerous. The first is: what does it mean to
say that the power of the people is dissolved or disappears in the constitution?
If, on the other hand, there is a residue, what is its nature, how does it relate to
the constitution, and for what ends may it be used? It also brings into focus
questions of the kind considered earlier as to the nature of the constituent
power and its relation to the people. A second line of enquiry looks to the
constitution itself to consider how the people, or some of them, through formal
and informal processes, are incorporated into it, and asks: what scope is there
for democratic engagement? In what ways do the institutions of government,
including not just the legislature but the courts, the executive and the admin-
istration, allow for involvement of the people and the democratic process?
A third is the reverse: does the constitution concede to the executive or other
agencies powers usurping those of the people? If so, are there standards and
constraints governing the use of such powers to render them legitimate? A final
set of questions concerns the role of the people in bringing about amendments
and alterations to the constitution, through both formal and informal processes.
An examination of each of these issues would be a major undertaking and well
worthwhile. It would reveal features of constitutional systems relevant to their
social understanding and provide for an empirically based constitutional theory.
Since the essays under review deal with only the first two issues, I shall confine
my review to aspects of them.
On the Sieyesian model, the constituent power is created when the people
unite to form a common will, pursue common objectives, and create a consti-
tution and system of government, which is left to govern without interference.64
The reason for the last, as we have seen, is practical and prudential rather
than normative, since intervention is likely to undermine government.
62
Dyzenhaus (n 4) 129.
63
Mollers (n 17) 88.
64
However, according to the residual power thesis, constituent power remains in
the people who may revise or revoke the constitution as they wish. Attacks on
the thesis come from two sides, one contending that constituent power
dissolves on the adoption of a constitution (the dissolution thesis), and the other
that constituent power retains scope for involvement in day-to-day government
(the intervention thesis). The intervention thesis has stronger and weaker forms,
the stronger holding that constituent power is ever present and may intervene
at will in the workings of the constitution, the weaker allowing restrained forms
of popular involvement.
Ulrich Preuss, in a characteristically astute account of constitutional affairs in
central and east Europe, proceeds along the Sieyesian route, baulking only at
the final post. He states: the constituent power embodies supreme power only
under the conditions of its own self-abolition through its self-transformation
into a constitution. In other words, the constitution is the annihilation of the
constituent power and at the same time its perfection.65 One consequence of
this approach is to dis-empower the people from any collective action other
than that allowed in the constitution, including, presumably, revoking it. If
constituent power is dissolved in the act of constitution-making, it is dissolved
for the future with no obvious means for being regained. This is perplexing in
theory and matches neither intuition nor experience. As to theory, what
justifies the conclusion that constituent power dissolves in this way? Since no
argument is offered, the explanation appears to be that a normative claim has
unobtrusively inserted itself into an otherwise descriptive analysis.
What is a passing remark in Preuss essay is central to Hans Lindahls, which
is heralded as the leading essay of the volume.66 Here the argument (simplified
and truncated) is that: (i) actions can be regarded as those of a people, or
attributed to them, only if the notion of a people is already established; (ii) that
can be done only within a constitutional context, since constitutions create a
people as a political entity; (iii) it follows that constituent power cannot exist
outside the constitution; and (iv) being constitutionalized, constituent power
and its correlate democracy are limited by the constitution. Two quotations
illustrate Lindahls conclusion: . . . identification/empowerment only succeeds
if individuals retrospectively identify themselves as the members of a polity
in constituent action by exercising the powers granted to them by a constitution
(emphasis added);67 political unity does not admit of a pre-legal existential
judgement.68 This densely reasoned and not-always-transparent essay deserves
a fuller analysis than is possible here, where just a few notes are offered.
65
Preuss (n 17) 218.
66
H Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Action, in
Loughlin and Walker (hereinafter Lindahl).
67
Ibid 19.
68
Ibid 20.
Lindahls contention that a political community is constituted by and only

by a legal order is a questionable juridico-centric view of political communities.
It is the opposite of Sieyes claim that the people combine as a political
community to create a constitution and retain authority to revoke it. Lindahls
analysis faces difficulties conceptual and practical. The conceptual hurdle is
plain: if a collection of people spontaneously combines to adopt a constitution,
or overturn one, there is no conceptual difficulty in regarding it as having the
authority to do so. If, in order to take the step, the people need a sense of
common identity, it can be minimal and certainly not one already defined by
law. Whether there is sufficient shared identity to act is an empirical and
practical issue which cannot be determined in advance by normative fiat. If the
people are able to combine to adopt a constitution, they must also be able to
revoke an existing one.69 It is enough in both cases that the people do not
actually combine but a few take action in their name.
Lindahls claims conflict with precedent. History is replete with cases of
constitutions being devised or revoked by recognizable socio-political, but not
legal, entities. The English rose against James II, forcing his abdication and
changing the constitution; the Hungarians, Poles and Slovaks, amongst others,
overthrew the Communist system and its constitutions and adopted new ones.
The United States Constitution was brought into being by a loose amalgam
of groups who had no existing legal identity, but could claim to be acting on
behalf of a recognizable, although lightly structured, political community. Action
was taken in each case by or in the name of the people constituting a community
outside the current constitutional arrangements. This is how, in a common sense
way, we understand such events, and, in the absence of an obvious flaw, have no
reason for construing them differently, for thinking them mistaken. Political
communities are bound together in different ways, which include, according to
Max Webers types of authority (or legitimacy), tradition and custom and
charismatic leadership.70 Another approach comes from anthropology where
opinions are divided as to whether communities necessarily have a legal order, an
issue that could arise only on the premise that community identity is possible
without one.71 Shared interests could be another basis of collective identity, as is
demonstrated in Robert Ellicksons study of the ranchers of Shasta County,72
where the shared interests were those of a farming community; others could be
religious, ethnic or economic. What constitutes a political community is a
complex social matter, but there is no compelling reason for thinking that it can
form only through, and after the adoption of, a constitution. Adoption is likely to
consolidate the formation, but is not necessary to its initial existence.
69
It is hard to see, on Lindahls account, according to which the people have no collective identity outside a
constitution, how a constitution could be created in the first place.
70
Weber (n 32), vol I, ch 3.
71
For insight into this debate, see S Roberts, After Government: On Representing Law Without the State
(2005) 68 MLR 124.
72
See R Ellickson, Order Without Law (University of Chicago Press, Chicago 1991).
Another problem for the dissolution thesis follows from the claim that
the constituent power retains no residue of authority outside the constitution.
How then are we to explain the revision or revocation of a constitution?
Constitutions usually provide procedures for amendment, but rarely for their
revocation. On Sieyes account that makes sense: the people have authority
both to make a constitution and revoke it; they are prior to it and in a sense
stand outside it. If, however, the peoples authority ends on the adoption of
a constitution, as Preuss argues, or if they never have authority outside it, as
Lindahl argues, its revocation or overthrow pose insoluble problems. One of
the deepest veins in constitutional theory and practice is that the people retain
not just the power, but the right, to revise and revoke their constitution, or
revolt against it. In the 16th century, George Buchanan wrote:
all nations that have ever elected kings . . . must have held this belief in common, that
whatever the people may grant to anyone in the way of legal right can always be taken
away again if there are just causes for doing so.73
Two centuries later, James Madison made the same point: it is the trans-
cendent and precious right of the people to abolish or alter their government as
to them as shall seem most likely to effect their safety and happiness.74 The
idea recurs through European constitutional thought, originating in the lex regia
of Roman Law: sovereign power derives ultimately from the people, and,
however much a fiction that is in practice, and however removed the people are
from political power, they may in the last resort exert it.75
If the abolition of government requires revocation and revision of the
constitution, then that must be included in the transcendent and precious
right. The conditions under which the right is justifiably exercised are debat-
able, but the right to both create and revoke a constitution remains intact.
It derives from the assertion of self-government, and how it self-abolishes in
the act of creating a constitution is not self-evident. The velvet revolutions of
East and central Europe were expressions of the right, being exertions by the
people, or the representatives of the people, or those claiming to represent
the people, of a residual power, and an assertion of their right to reject a
constitutional order that had become repugnant to them. History has no lack of
similar cases.
A possible reply to this argument would be to distinguish between authority
and power: the act of the people in revoking or revising a constitution is an
73
G Buchanan, De Iure Regni apud Scotos, Dialogues (Edinburgh, 1579) 113; quoted in Skinner (n 22), vol II,
249.
74
C Rossiter (ed) The Federalist Papers: J Madison (Modern Library, New York 1938) cited in Nickel (n 17)
150.
75
For an excellent account of this idea: M Canovan, The People (Polity Press, Cambridge 2005) ch 2.
Resistance theory more generally is discussed in: Q Skinner, The Foundations of Modern Political Thought (CUP,
Cambridge 1978) vol II and GS Wood, The Creation of the American Republic 17761787 (University of North
Carolina Press, Chapel Hill 1969) ch IX.
exertion of power but not authority. This would be compatible with the thesis
that authority derives from the constitution and has no foundation outside it.
It is also compatible with the normative principles inherent in liberal consti-
tutionalism (or one version of it), for which, according to Dyzenhaus: there
is no question of constituent power that exists outside of the politics of
constitutional and legal theory.76 This conclusion rests on an interpretation of
Hobbes, which questions the orthodoxy that constitutional authority derives
from the consent of the people. It derives instead from its being exercised
authoritatively, that is, through the institutions of legal order.77 The
institutions of legal order rest on the principles inherent in the rule of law
and depend on officialslegislators, administrators and judgescollaborating
to develop the rule of law and conduct government in accordance with it.78
There are plain merits in emphasizing the authority of the constitutional
order and the place of the rule of law within it. It is, however, an incomplete
account of constitutional authority. In concentrating on the liberal aspect
represented by the rule of law, it understates the democratic. It is right to
follow Hobbes in not basing the authority of constitutions on their pedigree,
but wrong to reduce authority to one principle such as the rule of law. In a
democratic society, continuing popular consent in some sense, which may be
expressed in a variety of ways, and no matter how hard to measure, is necessary
to sustain the authority of the constitution. It is necessary, empirically, not only
or even mainly because of popular commitment to democracy (whose intensity
varies), but because the society has bound itself and, in doing so, raised
expectations that government will be conducted accordingly, so that failure
to do so undermines legitimacy. Continuing consent is not sufficient for
legitimacy, but is essential.
If an element of constitutional authority in a democratic society is the
consent of the people, then consent may be withdrawn. However constitutions
come into being, and whether they originate in the people or not, the
fundamental expression of the will of the people lies in their revision or
revocation. Far from being a display of sheer power, such actions are justifiable
and, therefore, an authoritative expression of democracy and self-government.
Fundamental to liberal, democratic constitutionalism is that a residual power,
at least to revise or revoke the constitution, remains in the people. Whether
it goes beyond is a matter for further consideration.
6. Constituent Power and the Voice of the People

The conclusion that the people retain control over their constitution leaves
open questions as to how that control is used in practice and in principle
76
Dyzenhaus (n 4) 145.
77
Ibid 140.
78
Ibid 141.
should be. Above the baseline of revision or revocation, the possible levels of
intervention in the workings of the constitution, and the forms they take, are
variable. An initial distinction to make is between the people intervening in
government without legal or constitutional authority, and legal provision being
made for popular involvement. The first receives more attention in the essays
than the socond because of the tension it creates between constitutions
and popular democracy, although arguably the second has more practical
significance.79 Considering the first, we may put aside strong versions of
popular democracy associated with the likes of Carl Schmidt, Hitlers
constitutional theorist, and Antonio Negri, an Italian advocate of popular
democracy, which allow more-or-less unrestrained, extra-constitutional inter-
vention by the people. Such versions encounter practical and normative
obstacles. The idea of the popular will as an untamed political force running
parallel to the constitutional order has the major drawback of defeating the
point of a constitution, which is to establish orderly government. What would
be the use of a constitution if it could be jeopardized at any time by popular
will? There is also the normative concern that political activity should have
constitutional and legal authority and be conducted according to specified
processes. According to one account of liberal constitutionalism, there is no
room for political action outside the authority of the constitution.80
Leaving aside the more extreme versions of unrestrained popular interven-
tion, the issue is whether there is scope in a modern constitutional system for
popular political action outside the provisions of the constitution. What at first
seems convincing is on reflection problematical. The argument from liberal
constitutionalism requiring that all political action be confined to constitu-
tionally permissible forms has a firm foundation in the rule of law. But when
we ask how it relates to the principle of democracy, the problem considered in
the previous section reappears here: does the rule of law preclude or prevail
over actions based on democracy? The rule of law carries considerable weight
and has history on its side, with democracy a distant second. History could be
challenged by seeing the two as partners rather than opponents, as two prized
but competing principles; ways might be found of reformulating their
relationship. It depends to some extent on which version of the rule of law
is in mind: a narrow, formal one requiring government through settled laws, or
a substantive one linking it to the protection of rights. The first, pitting
predictability and certainty against democratic spontaneity, raises a lower
79
What powers the people ought to be given in the Constitution raises different questions from that under
consideration in the text. The Constitution of 1776 of Pennsylvania, as an example, provided that all bills passed
by the Assembly had to be submitted to the people; see Wood (n 75) 366. The power was widely condemned and
attracted the critical attention of James Madison: The Federalist, No. XLVII, 1 February 1788.
80
Dyzenhaus makes the argument well: according to liberal constitutionalism, constitutions provide the basis
on which government is to be conducted and the place of democracy within it; it has no place for a parallel
domain of un-constitutionalized political action; see Dyzenhaus (n 4) 129134, 143145.
barrier to popular action than the second, the jeopardizing of rights. It is not
obvious that corrupt, foolish or unjust actions of government, no matter how
formally well-made, should be immune from popular rejection, while threats to
rights are more serious.
Another concern is uncertainty as to the kinds of political action in issue.
If actions are plainly unlawful, as various forms of popular protest or uprising
could be, then we are thrust into the debate about when the law may justifiably
be broken for sound competing causes. There is no mention of the debate in
the essays and yet it seems highly relevant. If political actions are not in breach
of the law or constitution, then in the Anglo-American tradition they are
permissible and raise no constitutional problems. The difficulty of drawing a
line between legality and illegality in actions such as public protest, strikes and
civil disobedience may be beneficial in its uncertainty in allowing scope for
popular politics. Whether there can be a third type of political activity, which is
neither quite illegal nor quite legal, but which is the real target of liberal
constitutionalism is left uncertain. What is certain from these brief remarks is
that these matters await fuller consideration from normative theorists than they
receive in the collection.
The practical reasons for restricting the exercise of the popular will by legal
forms seem at first similarly straight-forward. Parallel and unregulated domains
of political action defy the reasons a community has for creating a constitu-
tional order. The realization of common goals requires effective and stable
government over time, which means having settled institutions, delegated
spheres of authority and guiding principles, all of which constitutional orders
aim to provide. Being the results of trial and error, beginning with Rome
or even before, and in comparison with alternatives, we have reason to be
confident that well-functioning constitutional orders are a necessary element in
realizing those goals. Good government is hard to achieve, and gains won
through hard experience should not lightly be surrendered.
There is again another side to consider. Reasons, based on the nature and
purposes of constitutions, for political power being confined by them are
practical and prudential rather than conclusive. Being practical and prudential,
they cannot rule-out exertions of the popular will outside the constitution, nor
prove that they necessarily destroy or threaten good government. They could
have the opposite effect of strengthening the system by bringing to public
notice causes of concern and dissatisfaction. Public protest illustrates the point,
for according to Niccolo Machiavelli: good examples proceed from good
education, good education from good laws, and good laws . . . from the very
tumults which many so inconsiderately condemn.81 Tumults of the kind
in mind are usually permitted in modern constitutions, British history being
81
N Machiavelli, in B Crick (ed), Discourses (Penguin, London 1970) 114.
a good case study of how they were gradually transformed from seriously illegal
assemblies to being broadly legal.82 But to imagine that the most important
question is whether they are illegal or not, would be for anyone, other than a
lawyer prosecuting or defending its perpetrators, a misunderstanding. Police,
prosecutors, courts and other government officials have ample legal powers to
prevent, terminate and punish any serious form of public protest;83 that they
do not is because they choose not to, which is surely evidence that even if
Machiavelli is not on their bedside tables they have a sense of the possible
utility of tumults for good government. This is just one example of popular
political action, and there are bound to be others, whose impact on government
and the constitution we know little about, and yet whose significance for
constitutional theory is obvious.84
Fear that the people might exert their power extra-constitutionally is only
one part of the larger issue of their having a voice in government. How their
voice is provided for in the constitution and the laws, and the extent, are more
significant normatively and practically. In one of the best essays in the
collection, John McCormick examines two different approaches to these issues.
One is that of ancient constitutions, Rome being the prime example, where
provision was made though special institutions for involvement of the ordinary
people in government.85 Powerful and wealthy groups otherwise would domi-
nate and violate the core value of republics that: no individual or group of
citizens should be able to threaten the common good by exerting excessive
influence over politics and society.86 Modern constitutions, meaning post-18th
century, in contrast: treat the people as a homogeneous unit . . . a unitary and
socio-economically anonymous collection of individual citizens, formally equal
under the law.87
The other approach is that of modern constitutions, which are blind to the
fact that they are created normally by elite groups to serve their interests, to
dominate government and keep it out of the hands of the people. Cromwell
and Madison, a century apart, were united in their concern not to allow
government to pass fully or unchecked to the people, while the very concept of
representation as developed in western constitutionalism, as Bernard Manin
in his masterly study shows, is based on separating the people from their
82
The literature is extensive; see for instance, EP Thompson, The Moral Economy of the English Crowd in
the Eighteenth Century (1971) 50 Past Present 7994; R Benewick, Political Violence and Public Order (Allen
Lane, London 1967) and DG Barnum, The Constitutional Status of Public Protest Activity in Britain and the
United States [1977] Public Law 310344.
83
These issues are examined in DJ Galligan, The Right to Protest (Inaugural Lecture, 21 May 1987, University
of Southampton).
84
LD Kramer provides examples and a useful analysis of direct, extra-constitutional political action in Kramer
(n 54), ch 1.
85
JP McCormick, People and Elites in Republican Constitutions, Traditional and Modern in Loughlin and
Walker.
86
Ibid 107.
87
Ibid 107.
representatives; they rather than the people being fit to govern.88

Representative government was designed, he argues, in full awareness that
elected representatives would and should be distinguished citizens, socially
different from those who elected them.89 The principle of distinction, adjusted to
take account of the power of wealth as well as class and status, is likely to be as
true of contemporary constitutions as it was 200 years ago. The alternative,
according to McCormicks account, in recognition of social conditions and
inequalities, is to make special provision for the people to be engaged, not just
in electing representatives, but in influencing policy and making decisions.
Tender feelings for the people need not be the motive, the desire for good and
stable government being enough.
Constitutional theory in its conceptual and normative versions is dogged by
the fiction of representation, by hollow promises beginning we the people, and
the vain ambition of controlling governments rather than engaging with them.
The people are needed because only they can confer authority, but they cannot
be trusted and must be kept at bay. And yet, surveying constitutional history,
one cannot but conclude that rarely has the problem been too much demo-
cracy, too much engagement of the common people, the opposite, their
absence, being more plausible. The alternative approach, being firmly rooted in
social reality and the practical workings of constitutional systems, recognizes
the tensions between elites and the common people, and charts the obstacles to
popular involvement in government. It is not a return to the raw populism of
Schmidt and Negri, but an attempt to understand through historical, political
scientific and sociological analysis how the democratic principle, the voice of
the people, has featured in constitutional systems; why, given its normative
weight and its political appeal, its place has not been more secure; and how,
in modern systems, it is traded against competing considerations.
Once again we see the interplay between the three types of theory, the
conceptual, the normative and the descriptive. A better understanding of the
social foundations of constitutions and their practical workings does not remove
the conceptual and normative issues; but it may provide a basis for their better
understanding. The tension between the democratic principle and the liberal
commitment to individual rights, with which many have grappled at the
normative level, remains inherent in modern constitutions.90 Analysis of the
social context may stimulate ideas for the better handling of the tension and,
possibly, the better design of constitutions and the institutions of government.
Comparative studies of constitutional systems would add a dimension and
identify the forms and mechanisms through which the people have a voice in
government. Apart from regular elections and occasional referenda, provision is
88
Manin (n 2) 92.
89
Ibid 94.
90
Rainer Nickels essay is a fine analysis of Habermas attempts to reconcile the two: see Nickel (n 17).
often made for various forms of complaints and judicial processes, and for
consultation, representation and the direct involvement of groups and interests.
Whether as parents, patients or property owners, or disguised as customers or
users, or under some other euphemism, the scope for popular involvement may
be greater than we imagine. A good part of administrative law is dedicated to
these matters.
Good government is the overall goal, the practical question being how to
achieve it. Engagement of the people has a part to play, as an instrument
to good decisions and hence good government, and as of value in itself. An
analysis of those matters is complex enough, considering the different versions
of democracy and competing claims about its role.91 Then there is the question
of what institutional forms are needed to accommodate popular participation
and deliver good government. This raises hard issues about the design of govern-
ment and its evaluation, issues that rely on both empirical evidence and
normative principles. They are open to different approaches, normative and
practical, and they bring into question the organizational capacity of
government, the expertise of civil servants, and the competence and reliability
of political officials. Empirical evidence and reflection on the nature of actually
existing regimes would help in assessing these matters, and in deciding how
best to give effect to normative principles.
To conclude, in assembling this collection of essays, the editors have widened
the scope of constitutional theory by bringing to our attention issues which are
both fundamental and rather neglected. They have also managed to assemble a
group of authors whose approaches are diverse and wide-ranging in the ways I
have indicated. National case studies, theoretical analyses, and historical
understanding all combine to add to the value of the collection in stimulating
interest in the issues. That I have contested some of the views and approaches
does not detract from the value of the collection in advancing the study of
constitutions and constitutionalism. At the same time, many of the essays and
indeed the collection as a whole should be seen as the first act in a three-act
play, as raising issues for further study and reflection, rather than offering a
definitive analysis of them. There may be others who share my view that the
theoretical framework ought to be extended beyond the conceptual and the
normative to the closer study of real constitutions, their history, their purposes
and their functioning. If the collection, in addition to its other qualities,
provokes interest in that project its contribution could be historic.
91
I have discussed these issues more fully in: DJ Galligan, Due Process and Fair Procedures (OUP, Oxford
1996).

The Paradox of Constitutionalism or The Potential of Constitutional Theory?

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Oxford Journal of Legal Studies, Vol. 28, No. 2 (2008), pp.

The Paradox of Constitutionalism or the

Modern constitutionalism, the editors of the collection of essays under review

clearly marked, but seems to be as follows. Among the matters preoccupying

unacceptable consequences. It is common to find that a paradox at the con-

3. On the Nature of Constitutions: Constituent Power,

constitutional form and constituted power. Constitutional form, or the constitution,

organizational capacity,31 by which is meant the capacity of the institutions,

4. Constituent Power and the Formation of Constitutions

of English constitutional history that ought to be better known.40 Whether they

5. Constituent Power: Dissolution or Residue

Lindahls contention that a political community is constituted by and only

6. Constituent Power and the Voice of the People

representatives; they rather than the people being fit to govern.88

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