Download Martin Loughlin and Neil Walker, eds., The Paradox of

Martin Loughlin and Neil Walker, eds., The Paradox of Constitutionalism:
Constituent Power and Constitutional Form. Oxford University Press, 2007.
375 pp.
Reviewed by Zoran Oklopcic*
A central building block of constitutional theory is the idea of the constituent
power of the people. Simply put, “the people,” conceptualized as a single entity,
is understood as the sole creator of its constitutional order. But from what
source does “the people” derive its identity? During the past decade, eminent
constitutional theorists have embraced a circular answer to this question.1
Duncan Ivison, for example, has argued that the “[c]onstitution constitutes the
People who in turn constitute it.”2 In a similar vein, in the context of European
integration, Joseph Weiler has observed that “[i]n many instances, constitutional doctrine presupposes the existence of that which it creates: the demos
which is called upon to accept the constitution is constituted, legally, by that
very constitution….”3
In principle, there are, I think, four strategies that can respond to the circular
accounts of the people’s constituent power. First, we can posit a prelegal event,
a constitutional “big bang”—a successful revolution, coup d’état, secession, or
occupation—that serves as an unquestioned point of departure for any subsequent constitutional theorizing. Second, we can build on canonical works of
political theory that offer a higher degree of articulation in the form of theories
of social contract and the state of nature, which explain the beginning of polities.
Third, we may imagine a prepolitical person—a thicker, historical people, this
time ethnically conceived—that creates its own polity. Finally, the fourth strategy would be to deduce the identity of “the people” and its constituent power
from international law, namely, the norms that maintain the territorial integrity of state and provide limited opportunities for territorial reconstruction. All
four solutions to the problem of circularity imply that the constituent power of
the people pertains simply to the governing institutions of the constitutional
order and not to the issue of constituting the polity in its totality.
* SJD candidate, University of Toronto faculty of law. Email: [email protected]
1
For the clearest statement of this problem in contemporary political theory, see Bernard Yack,
Popular Sovereignty and Nationalism, 29 POL.THEORY 517, 523 (2001).
2
Duncan Ivison, Pluralism and the Hobbesian Logic of Negative Constitutionalism, 67 POL. STUD. 83,
84 (1999).
3
Joseph Weiler, Federalism Without Constitutionalism: Europe’s Sonderweg, in THE FEDERAL VISION:
LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 184 (Kalypso
Nikolaidis & Robert Howse eds., Oxford Univ. Press 2001).
© The Author 2008. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I•CON, Volume 6, Number 2, 2008, pp. 358–370 doi:10.1093/icon/mon006
Advance Access publication March 26, 2008
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All four strategies—together with the tacit assumption that constitutional
theory is only about constituting institutions and not the polity—are put under
strain in the contemporary geopolitical constellation. Worldwide, substate groups
vie for recognition and secession, challenging the assumptions of a unitary “people.” Powerful imperial actors invade and govern smaller polities, imposing, along
the way, constitutional settlements. Finally, international organizations and
transnational corporations are increasingly seen as influential actors that transform the domestic constitutional arena. In sum, the blurred distinction between
“inside” and “outside”; the fragmentation of and disregard for international law;
and the emergence of new, nonstate and suprastate actors with truly constituent
powers, all challenge the central idea of the constituent power of “the people.”
Therefore, a constitutional theorist can no longer afford to articulate the creation
of constitutional orders by recourse to the imagery of unanimous covenanting
and isolation or of a prepolitical nation. Equally, the brute imposition of constitutional orders raises the question of the appropriateness of positing a contingent,
yet unquestionable, “big bang” at the beginning of a constitutional order.
These exogenous and endogenous pressures exert a strain on contemporary
constitutional theory—namely, on its foundational building block, the idea of
the constituent power of “the people.” This book provides a fresh look at the
rhetorical structure, genealogy, normative underpinnings, and political contexts in which constituent power is invoked.
In the introductory chapter, Hans Lindahl seeks to elucidate the mechanics
of the invocation of constituent power of the people.4 For Lindahl, “the people”
is never directly present to itself as a subject of constituent action. Lindahl uses
Hans Kelsen and Carl Schmitt, as opposing figures, to argue that an act can be
recognized as an act of “the people” only by raising a “representational or
attributive claim”(p. 23). But any such attributive claim necessarily tries to
bring closure to what are inherently contingent issues: Who are the interested
parties to the political community and what counts as their common interest?
As a consequence, final closure is never possible. In the democratic Rechtstaat,
as Lindahl observes, that closure can also, to a certain extent, be renegotiated.
In other words, the rule of law and democracy allow for a limited responsiveness to challenges to political identity.
The introductory chapter is followed by historical explorations of the constituent power of the people in the context of the countries where constitutional theorizing has contributed critically to the apparatus of constitutional
theory worldwide. Martin Loughlin’s chapter presents a genealogy of the concept of constituent power in the United Kingdom.5 According to Loughlin, the
4
Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood, in
THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 27 (Martin Loughlin &
Neil Walker eds., Oxford Univ. Press 2007).
5
Martin Loughlin, Constituent Power Subverted: From English Constitutional Argument to British
Constitutional Practice, in THE PARADOX OF CONSTITUTIONALISM, supra note 4, at 27.
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political crisis of the English political system in the seventeenth century gave
birth to the conceptual innovation of constituent power being located in “the
people.” However, subsequent political developments led to the submerging of
the idea of constituent power of the people. Instead, the theoretical selfunderstanding of British constitutionalism ended up anchored in the notion of
the “omnicompetent representative forum”—the sovereign Parliament
(p. 28). At the same time, Loughlin sees modern symbols of British political
identity derived not from the populist imagery of the seventeenth century but,
rather, from the “aristocratic, inegalitarian and antipopulist institutions and
commitments” (p. 45).
Stephen Griffin surveys the deployment of constituent power in the United
States. He argues that the constituent power of the sovereign American people
was brought to bear in the constitutional convention leading to the adoption of
the U.S. Constitution. The subsequent exercise of constituent power was
effected in two ways—first, by the conventional route of constitutional amendment and, second, and more importantly, through the informal channels of
political participation and struggle. While Bruce Ackerman famously views
constitutional change through informal channels as rare and spasmodic,
Griffin also sees it operating incrementally, in an evolutionary manner (p. 60).
While using Ackerman as a foil in explicating American constitutionalism is
perfectly legitimate, it is unfortunate that Griffin did not engage the work of
Paul W. Kahn, an approach that would have fit better with the overarching
critical tenor of the volume.6
The concept of “constituent power” may be an English invention, but it is its
rhetorical deployment in the aftermath of the French Revolution that led to its
worldwide marketability. Lucien Jaume traces the development of the constituent power of the people from its first celebrated articulation in Abbé Sieyès’s
What is the Third Estate? to its institutionalization in President Charles De
Gaulle’s Constitution of 1958.7 As Jaume observes, the idea of constituent
power has received a mixed welcome. It has often been treated with apprehension and charged with promoting demagogy. However, it was only after De
Gaulle’s rise to power that constituent power came to be seen as a valuable
6
As a constitutional theorist, Paul Kahn draws our attention to the deep conceptual commitments
that inform constitutional theory. He points to the Christian foundations of popular sovereignty by
highlighting the implicit, and always present, demand of a physical sacrifice for the maintenance
of the mystical body of “the people.” Moreover, Kahn has pointed to the importance of love, rather
than rational consent, binding individuals together in a political community. While the worldwide
reception of American constitutional theory bears the mark of Bruce Ackerman’s scholarship and
his idea of “constitutional moments,” Kahn’s insights, also based on the U.S. experience, may be
critical for a richer understanding of constitutionalism in countries that need to build their constitutional government “from scratch.” See PAUL W. KAHN, PUTTING LIBERALISM IN ITS PLACE 287 (Princeton
Univ. Press 2005).
7
Lucien Jaume, Constituent Power in France: The Revolution and Its Consequences, in THE PARADOX OF
CONSTITUTIONALISM, supra note 4, at 67.
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resource in promoting the state’s authority. For Jaume, the election of a president who draws his legitimacy directly from the people and acts as a neutral
umpire has contributed to the long-term political stability in France (p. 79
passim).
The volume’s historical account of the concept of constituent power ends
with Germany. The deployment of constituent power in France may have vacillated, yet it has been always present. In Germany, however, the concept of
constituent power ended up suppressed in the discourse of modern constitutional law. Christoph Möllers traces that trajectory from the beginnings of constitutional reflection during the first German Reich to the modern German
federal republic.8 During the first German Reich, there was virtually no discussion of the constituent power of the people; the idea reached its heyday in
Germany during the Weimar Republic and was most thoroughly articulated in
the works of Carl Schmitt. According to Möllers, the Nazi regime also relied, to
an extent, on the political acceptance of the idea of “the German people,” even
though it did not employ the trope of constituent power. As a consequence, the
new postwar German constitutional order abolished the populist institutions
of the Weimar period—plebiscite and the direct election of the president—without, however, erasing the reference to the constituent power of the people
(p. 94). Nonetheless, Möllers concludes, the source of constitutional legitimacy
is rarely debated in terms of constituent power but, rather, is derived from judicial review and the actual endorsement of the constitutional order on behalf of
the population.
While the above contributions concentrate on genealogies of the constituent power of the people in their national contexts, John MacCormick explores
the idea of “the people” as found in political theory prior to eighteenth-century
constitutions.9 More specifically, he concentrates on the social aspect of the
invocation of “the people.” He claims that the modern “holistic” account of
“the people”—the one that does not discriminate on the basis of class—is less
well suited to keeping wealthy citizens from dominating public life. The models
of constitutional order which envisaged “the people” as a subset (although a
large one), and not a totality of all citizens, possessed extraelectoral devices—
such as the tribunate and plebiscites—through which they could keep the
power of elites in check. Thus, according to MacCormick, modern constitutional democracies featuring the homogenous idea of “the people” would do
well to follow the advice of the pre-eighteenth-century republics and devise
some mechanisms of affirmative action for common citizens (p. 125).
8
Christoph Möllers, We are (Afraid of) the People: Constituent Power in German Constitutionalism, in
THE PARADOX OF CONSTITUTIONALISM, supra note 4, at 87.
9
John P. McCormick, People and Elites in Republican Constitutions, Traditional and Modern, in THE
PARADOX OF CONSTITUTIONALISM, supra note 4, at 107.
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David Dyzenhaus’s contribution challenges, from a liberal vantage point,
the underlying normative reasons behind the very invocation of constituent
power.10 For Dyzenhaus, the issue of constituent power is primarily linked to
the question of authority—that is, whether “sheer power [can] turn into something authoritative” (p. 129)—and does not arise within the context of liberal
legal theory. The authority of the constitutional order, for liberals, is not derived
from the exercise of the constituent power. Rather, it is derived from “principles which are required to make sense of an ongoing principle of legality”
(p. 144), such as impartiality, fairness, and equality before the law. The question
of constituent power for Dyzenhaus, then, is not the matter of the ontology of
political life that it is for Lindahl but, rather, just a building block in one of the
competing legal theories. However, in the absence of the global rule of law, not
only as a political idea but also as a living political practice, Dyzenhaus’s rebuttal of the “politics of the constituent power” leaves the door open to imperialist
practices of nation building, so called, under the pretext of enabling the rule of
law. Nothing, in principle, would militate against such imperialist involvement
if the end result is a marginal improvement in the realization of the ideal of the
rule of law in a particular jurisdiction.
Rainer Nickel surveys one of those politicolegal theories, Habermas’s discourse theory, and argues in favor of retaining the concept of the constituent
power of the people, which, according to him, is well suited to the task of
explaining the difference between law and a mere exercise of power.11 Nickel
expounds on Habermas’s co-originality thesis, which denies primacy either to
democracy or to human rights. He notes that recent security challenges, such
as terrorism, as well as the existence of “structural minorities,” put a strain on
the contemporary constitutional state and its system of individual rights that
cannot be offset adequately by Habermas’s desubstantialized idea of rights
emerging from the democratic process. Moreover, empirically observable trends
of the juridification of international law challenge the democratic pedigree of
new, “hybrid” legal regimes. Nickel, does not, however, reject Habermas’s cooriginality thesis. Instead, he advocates a “mildly substantiated” grounding of
individual rights in the idea of human dignity (p.167). While Nickel is aware of
the problems that “structural” (for example, ethnic and religious) minorities
pose for Habermas’s project, he seems overly optimistic that grounding the
constitutional order in dignity will alleviate the problem. He does not take into
account that, in deeply divided societies, structural minorities do not care about
inclusion based on a more substantiated idea of human dignity. Very often,
they want to extricate themselves from a constitutional order that they do not
perceive as theirs. Habermas’s theory, with or without the complement of
10
David Dyzenhaus, The Politics of the Question of Constituent Power, in THE PARADOX OF CONSTITUTIONALsupra note 4, at 129.
ISM,
11
Rainer Nickel, Private and Public Autonomy Revisited: Habermas’ Concept of Co-originality, in THE
PARADOX OF CONSTITUTIONALISM, supra note 4, at 147.
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“dignity,” seems to be fundamentally unable to deal with these first-order constitutional challenges (vis-à-vis boundaries and political status), which, according to Sujit Choudhry, pertain to the realm of “constitutive constitutional
politics.”12
The contribution of Paolo Carrozza identifies three points of Western constitutionalism that are increasingly under stress.13 First, the classical division
between the constituent and constituted power of the people is undermined by
the logic of an aterritorial “Empire”14 and the emergent “multitude” as the
engine of emancipatory struggles. Second, political and value pluralism challenge the image of the constitution as a higher law entrenched in the will of the
organic people. He holds that postmodern, “weak” constitutionalism does not
fall back into constitutional relativism but, instead, embraces the values of reasonableness, proportionality, and justice. Finally, the transition from Western
to postmodern constitutionalism undermines the territorial framework of the
nation-state in favor of new political constellations, both territorial and nonterritorial. However, for Carrozza, the definition of postmodern constitutionalism cannot rely merely on a contrast with the standard, Western model. Instead,
postmodern constitutionalists need to provide a positive articulation of constitutionalism. For Carrozza, that articulation can come both from a procedural
account of democracy and theories of multilevel governance (pp. 185–186).
Emilios Christodoulidis’s point of departure is radically different from those
of Nickel and Carrozza.15 His aim is to cast the idea of constituent power as a
power that “collects” society on the basis of a principle that is “free, associative
and egalitarian” (p. 195). Christodoulidis anticipates both philosophical and
prudential objections to such an account but, in this article, he sets out to
preempt only philosophical objections. He relies on Alain Badieu in claiming
that a “constituent” moment relies on conjoining democracy, praxis, equality,
and universal truth. Thus, the constituent power within Christodoulidis’s
emancipatory brand of constitutionalism would be devoted “to carving out a
space for the possibility of acting … against the registers of democratic capitalism, against the ‘end of history,’ the metaliberalism that includes all the
options” (p. 207).
The final section of the volume is devoted to contemporary contexts in
which the idea of constituent power is invoked. In his chapter, Ulrich Preuss
12
Sujit Choudhry, Old Imperial Dilemmas and the New Nation-Building: Constitutive Constitutional
Politics in Multinational Polities, 37 CONN. L. REV. 933, 936 passim (2005).
13
Paolo Carrozza, Constitutionalism’s Post-Modern Opening, in THE PARADOX
supra note 4, at 169.
OF
CONSTITUTIONALISM,
14
See MICHAEL HARDT & ANTONIO NEGRI, EMPIRE xi (Harvard Univ. Press 2000).
15
Emilios Christodoulidis, Against Substitution: The Constitutional Thinking of Dissensus, in THE PARACONSTITUTIONALISM, supra note 4, at 189.
DOX OF
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uses the Central and Eastern European revolutions of 1989 as foils.16 He says
that the idea of constituent power has a dual and ambivalent character. On the
one hand, empirically, it is effectuated by the “active revolutionary minority”
(p. 216). On the other hand, morally, it is associated with an ideal of “the people” as a repository of “the aspirations, the ideals and the unity of the society”
(id.). The deployment of the constituent power of the people in the East European
context was specific, according to Preuss, because the revolutions of 1989
were predominantly “systemic” and not “political” (p. 224). The constituent
actors in a systemic revolution not only dismantle the old regime but also face
a situation where the forces that should benefit from the establishment of a
new order—political parties, trade unions, and flourishing civil society—are
not yet created. However, in some of the East European countries, such as the
German Democratic Republic, Yugoslavia, and the Soviet Union, the political
rupture created by revolution enabled the invocation of a prepolitical ethnic
community. The reliance on ethnos in those contexts, for Preuss, cannot be
seen as an exercise of constituent power that is innately marked by its aspiration to a universalistic, inclusive community. The significant emphasis on
national liberation, instead of constitution of liberty, for Preuss, testifies to the
limited role played by the idea of constituent power in the revolutions of 1989.
Preuss rightly notes the moral ideals behind the invocation of “demos.” What
he fails to appreciate fully is the contingent nature of its invocation. Invoking
demos is easier in situations where the territorial framework is not questioned,
or where the group seeking to construct a new constitutional order forms a
majority in a preexisting administrative unit. In these cases it is easier to posture as an exemplar of a good, civic, demos-based “people,” instead of the bad,
vicious ethnic community. In the absence of a territorial referent, radical
movements can easily slide into the morally reprehensible ideas of “blood and
belonging.” As a consequence, it is not the idea of demos that ultimately enables the egalitarian and inclusive political agenda but the preexisting spatial
referent.
While Preuss examines the role of constituent power in Central and East
Europe, in the context of radical, postcommunist transformations, Stephen
Tierney focuses on the idea of constituent power in consolidated, Western
plurinational states.17 Unlike Nickel, and to an extent Carrozza, Tierney is
keenly aware of the challenges of constitutive constitutional politics. According
to Tierney, constitutional politics in countries such as the United Kingdom,
Canada, Belgium, or Spain testifies to the disaggregating of a cornerstone of
modern constitutional theory: the idea of a “monistic demos” (p. 230). Substate
nationalists challenge the assumption of the unitary demos and, instead, claim
16
Ulrich K. Preuss, The Exercise of Constituent Power in Central and Eastern Europe, in THE PARADOX OF
CONSTITUTIONALISM, supra note 4, at 211.
17
Stephen Tierney, ‘We the Peoples’: Constituent Power and Constitutionalism in Plurinational States,
in THE PARADOX OF CONSTITUTIONALISM, supra note 4, at 229.
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that plurinational states are founded as unions between “free and equal
nations.”
This model poses three challenges. First, it undermines the traditional dichotomy between federal and unitary states. Second, it requires that the constitution be seen as a reflexive instrument, responding to the demands of all substate
demoi. Finally, the plurinational state becomes the site for struggles over the
ultimate locus of sovereignty. In Western plurinational states, these struggles
usually do not escalate to the point of challenging the basic territorial frame.
Instead, they usually are presented as struggles to vindicate the initial constitutional compact. However, by being prepared to step out of the purported constitutional “bargain,” if necessary, the substate constituent power reserves the
ultimate decision-making power for itself. That, for Tierney, shows both the
political tension within constitutional politics and the paradox in the constitutional theory of plurinational constitutionalism. Tierney is right to note that
tension. However, it is only the preparedness to step out of the constitutional
bargain unilaterally that merits the introduction of the analytical device of
“sub-state demos.” As long as the constitutional issue is how to interpret the initial “bargain,” the constitutional issue is not on a metaconstitutional level but,
rather, can be engaged from within the plane of theories of federalism. In such
a case, it is possible, though analytically redundant, to invoke the idea of a “substate demos.” For that matter, while claiming to challenge the logic of a unitary
demos in multinational states, Tierney does not challenge the logic of a unitary
demos per se because “the peoples” of Scotland, Flanders, or Quebec are still
unitary demoi who act as partners in the wider federal bargain.
Neil Walker’s paper defends constituent power in another multinational
context, the nascent political entity of the European Union.18 For Walker, the
concept of constituent power is simultaneously marked by “promises” and
“threats” (p. 248). On the one hand, constituent power enables us to imagine
a constitutional authority beyond the mere constitutional text. In addition, it
helps us conceive of a constitutional order as a democratic system that ought
to be responsive to the desires, interests, and values of its constituents. On the
other hand, it poses a “threat” in that it does not help us ascertain exactly who
can make the legitimate claim to constituent power. In addition, it leaves open
the question of how to accomplish the ideal of democratic responsiveness.
In the EU context, three dominant approaches to constituent power present
themselves. First, one may argue that the idea of constituent power is not a necessary feature of European constitutionalism. Second, one can argue that while
the idea of constituent power is part and parcel of constitutional theory, it is not
currently present in the European context. Third, one can claim, contrary to the
previous assertion, that there is a nascent European constituent power already
existent in the emergent European constitutional order. Against these claims of
18
Neil Walker, Post-Constituent Constitutionalism? The Case of the European Union, in THE PARADOX OF
CONSTITUTIONALISM, supra note 4, at 247.
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“non-constituent constitutionalism,” “constitutional scepticism,” and “constitutional vindication,” Walker charts a fourth possibility, the middle way of
“post-constituent constitutionalism” (p. 261). Postconstituent constitutionalism maintains the temporal distinction between the deployment of constituent
power before and after the founding moment. At the same time it provides a finegrained articulation of different contexts in which the constituent power of the
people can be invoked. By doing that, it allows for the political actors’ constitutional imagination to speak to the ideal of responsive democratic government.
Bardo Fassbender brings reconsideration of the idea of constitutionalism to
the global level by investigating the prospects for the constitutionalization of
international law.19 He claims that there is no reason why the idea of constitution ought to be specifically confined to the statal framework. In the same vein,
constitutionalism in international relations should not be related to the idea of
a world state. Rather, a constitution protects “the legal authority and autonomy of every state against unlawful interventions by other states and international organizations” (p. 275). According to Fassbender, the United Nations
Charter, although formally created as a treaty, has a constitutional quality. For
him, that quality has been strengthened over the last fifty years, to the point
that today the Charter ought to be referred as the constitution of the international community. However, in light of the obliteration of the role of the Security
Council in Iraq and Kosovo,20 it is hard to agree that the Charter has been “confirmed and strengthened” to such an extent that we can talk about it as the
constitution of the international community (p. 281). And even if we did, that
would only raise the ante, provoking debate about the political legitimacy of the
global distribution of sovereignty as currently envisaged by the UN Charter.
While Fassbender explores the possibility of grounding the ultimate authority in a norm above the domestic constitutional order, Damian Chalmers
mounts a defense of a constituent power of the “Nation” that is usually thought
to underpin the constitutional order.21 He claims that the idea of constituent
power has a central role in constitutional theory and that its importance should
not be overlooked or diminished, as it is by legal pluralism. Constituent power
is valuable because it enables us to perceive lawmaking and politics in terms of
collective agency. It places limits on law and politics by safeguarding the
autonomy of the private sphere while, conversely, providing a resource for
reflecting upon and critiquing the established legal arrangements. In the
second part of his essay, Chalmers examines the political pathology of a
19
Bardo Fassbender, ‘We the Peoples of the United Nations’: Constituent Power and Constitutional Constitutional Form in International Law, in THE PARADOX OF CONSTITUTIONALISM, supra note 4, at 291.
20
Both Yugoslavia and Iraq were attacked without prior Security Council authorization, in violation of Chapter VII of the UN Charter.
21
Damian Chalmers, Constituent Power and the Pluralist Ethic, in THE PARADOX OF CONSTITUTIONALISM,
supra note 4, at 291.
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self-managing Brazilian cooperative, which he takes to be an exemplar of the
drawbacks of legal pluralism (p. 303). Chalmers’s case study aims to demonstrate a troubling feature of legal pluralism, one which obfuscates the distinction between political, economic, social, and private spheres. Against legal
pluralism and its detrimental side effects, Chalmers seeks to vindicate the constituent power of the nation, which is singularly capable of providing the
resources for political emancipation.
Finally, James Tully’s chapter aims to reveal the imperial features of modern
constitutional democracy and constituent power. Opposing the imperialist project
of Western constitutionalism, Tully charts possible “de-imperializing attempts”
directed at undermining constitutional democracy and promoting “democratic
constitutionalism” (p. 317). The development of the modern constitutional state,
according to Tully, was dependent on the web of arrangements that enabled the
legal incorporation of colonies and their exploitation. However, for Tully, the constituent power of “the people” is embedded in the larger suprastate complexes of
constituent forms and constituent powers such as old imperial systems, the UN,
the World Trade Organization, G8, and so on. The various constituent powers of
the people—the power of production, self-government, and self-defense—are subdued by the military-industrial complex, multinational corporations, and international financial legal arrangements. In historical terms, one of the crucial elements
in the development of modern constitutional democracy was its purported right to
trade freely and to civilize non-European populations. The matrix of constitutional
democracy and “imperial right” was replicated around the globe by means of colonial structures that, after the withdrawal of the home state, adopted the basic features of constitutional democracy. To counter imperialist practices, Tully’s
democratic constitutionalism asks that the rules always be subject to criticism and
indigenous customary norms be respected. Tully’s response to the obvious tension
between those two ideals is to advocate a permanent negotiation and a critical
stance toward the existing legal arrangements of indigenous or other subjugated
groups. However, there is no guarantee that, within those groups, the challengers’ demands will not be met by obstructionism or bad faith negotiations. Equally,
the permanent contestability of the indigenous arrangements may actually
weaken the resistance of the subaltern group to imperial cooptation.
While exhaustive in the treatment of its topic and rich in particular insights,
the volume would have profited from a direct engagement with the most
momentous cases in which constituting constitutional orders has put a strain
on the idea of the constituent power of “the people.” Can we seriously think of
the creation of the Iraqi constitutional order as an exercise of the constituent
power of the Iraqi “people”? Iraq, Afghanistan, Bosnia, Kosovo, Sudan, and
numerous other places in the “global South” should impel us to ask whether a
vision of the people’s constituent power is an appropriate lens through which
we should perceive the generation of constitutional orders.
James Tully, for example, acknowledges the embeddedness of constitution
making within a larger power structure, but he stops short of advocating the
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overhaul of our fundamental concepts of constitutional theory. Similarly,
Stephen Tierney recognizes the plural and agonistic nature of constitutional
struggles among several nations within multinational states but misses the
opportunity to recognize this plurality across the boundaries of Belgium, the
United Kingdom, and Canada. In a way, that is understandable. Those countries are at the quiet center of the global political storm, and the possibility of
outside involvement is just about inconceivable. Compare, however, recent
Belgian and Bosnian political crises. Belgium has endured, without any outside involvement, political paralysis caused by the inability of the Flemish and
Walloon parties to form the government. On the other hand, the Bosnian prime
minister’s resignation over the High Representative’s imposition of new veto
requirements in the Council of Ministers and Parliamentary Assembly was
greeted by a statement of the Office of High Representative, claiming that
[t]he International Community is not a well-meaning bystander in the
politics of Bosnia and Herzegovina; it has invested enormous financial
and political capital in the post-war rebuilding of the country and its institutions; it is a guarantor of the settlement that has maintained peace
in the country for more than a decade, and it must show that it continues
to take this duty seriously.22
Of course, Bosnia is a protectorate and Belgium is not. However, the status of
protectorate does not justify removing a constitutional order from the radar of
the constitutional theorist’s imagination.
It would have also been worth exploring whether the vantage point from
which constitutional theory developed is the reason for the conspicuous omission of outside actors from the discussion of foundational ideas of constitutional theory. During the period when the canon of constitutional theory was
articulated, England, France, and the United States did not have a vivid political experience of protracted outside meddling. The outside, for England, was
physically inoperative because of its insular position, whereas outside actors
were rendered inoperative—in France, as in the United States—after successful revolutionary wars. In all three traditions, outside influence is not a matter
of concern for constitutional theory. For example, while Lucien Jaume provides a pithy examination of the operation of the constituent power in the
French context, he fails to mention that for Sieyès, the “Nation,” as the holder
of constituent power, exists as soon as there are isolated individuals “seeking
to unite.”23 If isolated individuals seek to unite, where is everyone else?
Press Release, Office of the High Representative and EU Special Representative, Lajčák and Rehn
Call for Quick Return to EU Agenda (Nov. 27, 2007), http://www.ohr.int/ohr-dept/presso/pressr/
default.asp?content_id=40895.
22
23
That definition of a nation is regularly overlooked in invoking Sieyes’s contribution to constitutional theory. For an articulation of that tension in Sieyes’s argument, see CHIMENE I. KEITNER, THE
PARADOXES OF NATIONALISM: THE FRENCH REVOLUTION AND ITS MEANING FOR CONTEMPORARY NATION-BUILDING
65–66 (State Univ. of New York Press 2007).
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Or take the consolidation of the United States as an example. Before advancing an argument on how to organize political power within a single United
States, the Federalist Papers dealt with “Dangers From Foreign Force and
Influence.”24 There, the question was why there should be a single United
States in the first place, and not a number of discrete confederacies. The
Federalist Papers argued that the United States should be a single country
because it could more easily fend off possible incursions, more easily protect
U.S. trade interests, and protect individual states from “dwindl[ing] into comparative insignificance.”25 While outside actors did not figure directly in the
consolidation of the United States, they played a spectral role that constrained
the number of rational constitutional options available to “we, the people.”
Does the inescapable role of the outside actors in constituting weaker polities mean that Haitian, Bosnian, Kosovar, or Iraqi constitutional theorists
would be advised to incorporate those actors in their articulation of the foundations of a constitutional order? Not necessarily. The reason why we talk
about the constituent power of “the people,” and not that of outside actors, is
normative. Invoking the people’s constituent power can be a part of an egalitarian political agenda (Loughlin and McCormick). It can provide a lens
through which to perceive political life as a collective self-governing enterprise,
while simultaneously acting as a resource for criticism of existing political
structures (Chalmers). Further, it can have emancipatory and radical potential
(Lindahl). But the normative benefits assembled under the umbrella of the constituent power of “the people” have their price. First, there is the loss of attunement to the wider political context in which the radical political projects that
employ the currency of peoplehood take place. Second, there is the possibility
that the concept of the constituent power of “the people” will be used not only
in the service of anti-imperialism but also for imperial purposes. By hailing
someone else’s “peoplehood” and posturing as a benevolent midwife in a
“nation-building” project, an imperial actor optimizes the amount of political
energy needed to maintain its domination. Third, the emancipatory potential
of the people’s constituent power is not uniform. Invoking “we, the people”
may serve subalterns well, but not subalterns’ subalterns. It serves Kosovars,
but not Kosovo’s Serbs. It may serve aboriginal peoples, but not the dissenters
in their midst. Even though Neil Walker elaborates on the “promises” and
“threats” of constituent power in the context of the EU, the volume would have
benefited from a concluding and comprehensive normative map of the tradeoffs involved in invoking the people’s constituent power.
Finally, some authors in this volume would object to the idea that invocation of the people’s constituent power is only a matter of an underarticulated
24
See THE FEDERALIST NO. 2, 3, 4, 5 (John Jay).
25
THE FEDERALIST NO. 4, at 20 (John Jay) (Heritage Press 1945).
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normative program and a rhetorical strategy aimed at its accomplishment.
Lindahl, for example, claims that collective intentionality and the invocation
of the collective “we” is an inescapable feature of the political life. Concomitantly,
he argues that whoever exercises constituent power “must claim to act in the
name of the collective” (p. 18). However, according to Lindahl, this “identification succeeds only if individuals retroactively identify themselves as members
of the polity” (p. 19). But if the secret is out, namely, if invoking the constituent
power of “the people” is revealed as the simultaneously deceptive, necessary,
and fragile rhetoric of accomplishing a constitutional order, we may wonder
what kind of political dynamic this awareness may engender in participants in
political struggles who now would be armed with a critical knowledge with
which to resist anything that resembles such an invocation.
Regardless of the questions raised above, The Paradox of Constitutionalism is
the state of the art in contemporary constitutional theory. No serious discussion of constituent power (or its “kissing cousin” concepts of popular sovereignty, ultimate political authority, and political legitimacy) will be possible
without engaging the arguments to be found in this important book.