I

Soon after the transformation of the Reunion of the Estates General into a National Constituent Assembly, the deputies started debating the form, content, and structure of France's new constitution. Most constituents defended the idea that, to secure political liberty and limit power, it was necessary to create a system of separation of powers. This principle made its way to the sixteenth article of the Déclarations des droits de l’homme et du citoyen in July 1789. Yet the clarity and declaratory power of the principle did not entail an equally clear view of how this separation could be guaranteed institutionally. Although all deputies agreed that the legislative function needed to be separated from the executive and judiciary, they disagreed about how it would interact with these other powers and whether the assembly itself had to be subdivided into separate bodies.Footnote ³ The issue was made even more prominent by the fact that the exercise of sovereignty was considered at the time to coincide with the lawmaking power.Footnote ⁴ Hence, the separation of the legislative also raised questions about the acceptability of dividing the newly acquired sovereign power. The discussion of this issue took place between July 14 and September 12, 1789, at first inside the Constitutional Committee, a subsection of the National Constituent Assembly appointed to draft the constitution, and then within the assembly in plenary meetings.

Arguably, support for bicameralism mainly came from moderate monarchist deputies, the anglomanes. Among those, the most authoritative were Trophime-Gérard de Lally-Tollendal, elected by the nobility at the Estates General; Jean-Jacques Mounier, who was elected by the Third Estate of Dauphiné; and the Baron Malouet, a diplomat in Santo Domingo who was elected deputy to the Estates General by the constituency of Riom. As their epithet suggests, their support for a second chamber was mainly inspired by the English system of checks and balances. The virtues of the latter had been described by Montesquieu and successively praised by Jean-Louis Delolme, a Swiss-born jurist who, in 1771, published Constitution de l ’Angleterre, a book defending the virtues of the English constitution. In Delolme's book, Anglophile deputies found arguments to embrace the need for radical reforms of the political system while guaranteeing the permanence of social customs and, especially, of the social status of those who, like them, were part of the privileged few.Footnote ⁵ In addition, John Adams's Defence of the American Constitutions was known at the time, although it had not yet been translated into French.Footnote ⁶ In praising the constitutions of the United States, Adams borrowed heavily from Delolme's arguments, especially to defend the institution of the Senate in America. In so doing, he offered a narrative whereby the American constitution, far from being alternative to the English, was in line with it and, even more, followed in the footsteps of its model of checks and balances.Footnote ⁷

Building on the insights offered by Delolme, the anglomanes worried that an excessively strict enforcement of the principle of separation of power would have endowed the legislative chamber with an almost unlimited power.Footnote ⁸ If all powers had to be strictly separated, the legislative assembly would have had the entirety of the lawmaking power for itself. This created the risk of the assembly degenerating into tyranny, as its power could be captured by factional interests, by the susceptibility of majority rule to popular agitations or by a single man, without any other power being able to intervene and stop these abuses. All types of assemblies incurred those risks, but an unchecked single chamber would have made their occurrence more likely and their implications more pernicious. As one of the leaders of the anglomane group, Mounier, explained,

According to the anglomanes, whoever held the legislative power in its totality and exercised it in complete autonomy would necessarily become a threat to the nation and its newly acquired liberty. The exercise of sovereignty, and with it the lawmaking power, had to be balanced and checked. Yet, in order to do so, it was necessary to allow for different constitutional bodies to interfere with each other, check their respective actions, and enforce constitutional limits. To this end, the anglomanes took the English model of balance of power as a valuable example and designed a complex institutional project to present to the Constitutional Committee. In this venue, on August 31 Lally-Tollendal argued that the legislative power had to be limited through two institutional measures, one acting from outside the lawmaking assembly and the other from the inside.

The first involved the executive branch, as it consisted in attributing a veto power to the king, who could use it to either suspend or abolish the decisions of the legislative any time it approved a law that he deemed inappropriate, unsuitable, or unconstitutional. By authorizing the king to negatively interfere in the lawmaking process, this measure allowed for some levels of interaction between legislative and executive powers. This interaction, however, translated into higher checks upon the actions of the legislative, whose excesses could thus be counterbalanced. Yet at no point did the anglomanes think that the royal veto would jeopardize the separation of power. On the contrary, since the king had no power to positively make the law—neither by interfering in the working of the assembly nor by influencing its agenda—the executive branch retained its separation from the legislative chamber. In Lally-Tollendal's words, this was desirable because “the royal sanction is thus useful to the nation's safety, needed by the king to direct the public body and important for the security of the members of the legislative itself” (AP, VIII, 536).

The second measure entailed applying the principle of separation of powers also within the legislative assembly. By creating two separate chambers, the anglomanes planned to introduce mechanisms of checks and balances within the lawmaking body. The first chamber would represent the unity of the nation, be elected by all citizens, and retain the actual power of introducing and drafting laws. Yet before being sent to the king for approval, its decisions had to be examined by the second chamber. Anglophile deputies disagreed on the composition of the latter, but they all believed that it had to represent different interests from those embodied in the lower chamber, as per Delolme's book. To make sure this happened, the second chamber had to have longer mandates and be elected according to different procedures and at different moments in time. Moreover, the relation between the two chambers would not be one of perfect bicameralism, where the two assemblies have the same powers. Rather, the competences of the upper chamber were more restricted than those of the General Assembly as they were limited to discussing the proposals made by the latter.

Designed in such a way, the second chamber would be advantageous for several reasons. First, it guaranteed more time for reflection before passing laws. In Mounier's terms: “Two chambers deliberating separately assure the quality of their respective decisions and restore the slow and majestic pace at which the legislative power should work” (AP, VIII, 555). Second, by being smaller and populated by elites who were in office for longer terms than the lower assembly, the second chamber would be less susceptible to popular pressures and demagoguery than the first. Third, its mere presence would be an obstacle to the reunion of all powers in the hands of the representatives in the lower chamber; it would not only act as a check on the quality of their lawmaking but also make sure they respected the constitution and the limits it imposed on them. In addition, the second chamber would eventually function as a buffer between the executive power and the representative assembly, as it was meant to keep both within their limits while constructively checking on each other. In Tollendal's words, a “single power will necessarily end up annihilating all powers. Two will fight until one has destroyed the other. But three will keep themselves in perfect balance” (AP, VIII, 515). And it was precisely the second chamber that guaranteed the perfect balance, as it “would act to protect the constitution, prevent the representatives from destroying or usurping royal authority, and stop the king from encroaching on the rights of the representatives” (AP, VIII, 416).

To the anglomanes’ mind, the second chamber and the royal veto were thus necessary institutional instruments to constrain the potentially unlimited sovereignty of the assembly through a series of intersecting vetoes. This could be achieved by separating the lawmaking power internally and submitting it to checks and balances from both the inside, via the second chamber, and the outside, through the royal veto. However, when the time came for the assembly to vote on the proposal put forward by the Constitutional Committee, the deputies could not agree on the details of the suggested measures. On the one hand, there was no consensus on whether the royal veto had to be temporary or absolute, that is, on whether the king could veto a law on his own or was only entitled to suspend it and refer the ultimate decision either to the people via referendum or to the assembly at a later moment in time. On the other hand, supporters of bicameralism disagreed on the composition and mode of election of the second chamber.Footnote ¹⁰

Moreover, the bicameral project did not win the support of the rest of the assembly, which disapproved of the proposed constitutional draft. Among its more active opponents, most of whom would later be Girondins and Jacobins, two groups can be distinguished. The most radical were Jean-Baptiste Salle, a physician elected in the ranks of the Third Estate who took active part in the Girondins’ club and was eventually guillotined in 1794; Jérome Pétion de Villeneuve, a lawyer elected by the Third Estate of Chartres who served as president of the Constituent Assembly; and Maximilien de Robespierre. They not only accepted the royal veto in its temporary form and on the condition that the decision had to be made by the citizens via referendum, but also inflexibly opposed the institution of a second chamber. The absolute veto, they argued, would have given back sovereignty—as the power to make the law—to the monarch. This was contrary to the principle of popular sovereignty and to the third article of the Declaration of the Rights of Man and the Citizen. Furthermore, the absolute veto risked restoring the ancien regime and its principle of royal authority, by making the monarch the key player in the legislative process.

Similarly, the creation of a second chamber would have divided the sovereign power of the people into two branches, thereby undermining its popular, inalienable, and unlimited character. Since the first meetings of the National Assembly, radical deputies disapproved of representation, as it interposed an intermediary body between the will of the people and the actual decisions made in its name. This, to their mind, risked transferring sovereignty to an elite group of representatives who, instead of acting according to the will of the people, freely interpreted their mandate as authorization to act at their own discretion. To avoid this, at around the same time of the debate on bicameralism, radicals proposed to introduce the imperative mandate. By forcing the representatives to follow the instructions received from their constituents, the imperative mandate would have guaranteed the perfect correspondence between the will of the people and the decisions of the assembly. Yet the introduction of a second chamber would have emptied the imperative mandate of its meaning and explicitly contradicted the account of popular sovereignty from which it was derived. According to the anglomanes’ plan, the second chamber was tasked with reworking and potentially rejecting the decisions of the assembly. But if the will of the assembly corresponded to the will of the people—as would have been the case with the imperative mandate—then the second chamber would have opposed the will of the popular sovereign. This, on the radical benches of the assembly, appeared unacceptable.Footnote ¹¹

Even later, when the imperative mandate was outvoted by the assembly, radical deputies continued to oppose the introduction of a second chamber. This was because in a bicameral system the popular will was not immediately recognized in electoral results, but had to be created via complex processes of expert deliberation, the outcome of which needed to be checked for correctness through intersecting vetoes. This, from the radicals’ point of view, amounted to an expropriation of sovereignty, as legislative decisions did not coincide with the direct expression of the popular will. Both the absolute royal veto and the introduction of a second chamber thus contradicted the idea that sovereignty belonged to the people, whose exercise of it should have been as direct, unitary, and unlimited as possible. Consequently, radical deputies voted against the proposal drafted by the Constitutional Committee and advocated for the introduction of mechanisms aimed at protecting and increasing popular participation in the exercise of sovereignty, among which were the use of referenda to validate the king's suspensive veto, the recourse to practices of direct democracy in local districts, and the direct appeal to the people via regular referenda.

Yet, beyond radical deputies, another forceful strand of opposition existed. This was voiced both inside and outside the assembly by the so called américanistes, a group of moderate reformists that included the Marquis de Condorcet, who even though not a deputy at the time took part in the debates, the duc de La Rochefoucauld, and Pierre Samuel du Pont, both deputies in the assembly. They got their epithet from the fact that they systematically tried to oppose the anglomanes’ plan by presenting the American constitutional experience as a better guide for France than the English constitution.Footnote ¹² As Appleby has clearly explained, the américanistes engaged in a political and editorial battle against the anglomanes.Footnote ¹³ Aware that many arguments in support of the English constitution came from Delolme's influential book, they tried to steer the debate away from it by offering the American case as counterexample. To do so Condorcet and du Pont translated and disseminated the Examen, a pamphlet originally titled Observations on government including some animadversions on Mr Adams’ Defence and Mr De Lolme's constitution of England and attributed to New Jersey farmer Livingston, but actually written by the governor of New Jersey, William Stevens. The author of the pamphlet critically engaged with Delolme's book as well as with Adams's Defence to argue that the English model of checks and balances was inferior to the American constitution.Footnote ¹⁴

Even though, in its survey of the American constitution, the pamphlet did not disavow bicameralism per se, it argued that the institution of a second chamber amounted to a way of legitimizing social divisions and protecting the interests of the few against those of the many. This offered the américanistes arguments against the anglomanes’ project. In particular, they relied on the Examen to say that the institution of a second chamber in England derived from necessary historical compromises that were contingent upon the social and historical circumstances of the country. Being a completely different country and rejecting social divisions, France had no need to emulate the English model.Footnote ¹⁵ In addition, like Stevens, they maintained that stability needed neither aristocrats nor kings in order to be to be maintained. By contrast, the introduction of a second chamber would have divided society into orders and reproduced aristocratic biases, thus opposing the reforms and the political innovations that the country desperately needed.Footnote ¹⁶ Finally, the américanistes argued that the introduction of a second chamber would have divided the nation by introducing conflicting interests: while those of the aristocracy were necessarily sectarian, those of the people were the only interests capable of enshrining the will of the nation in its generality.Footnote ¹⁷

To sum up, the américanistes’ argument against bicameralism was mainly based on a critique of the aristocratic bias it entailed, as exposed by the author of the Examen in his critique of Delolme and Adams’ books. In addition, most américanistes followed the radicals in arguing in favour of a suspensive veto for the king. This would have allowed for additional levels of popular participation via local assemblies and referenda, thus enforcing the principles of equality and popular sovereignty.

During the debates in the assembly, the anglomanes criticized the américanistes by noting that, since the American constitution was bicameral, its use as an argument against the English system did not make much sense. Yet they did not succeed at imposing their view.Footnote ¹⁸ The project of instituting a second chamber in France failed with a vote of 849 to 89. The américanistes’ and radicals’ arguments in favor of equality won the support of the assembly. As we will see, Sieyès relied on some of these arguments, but completed them with a critique of bicameralism and of the English constitution that is fundamentally at odds with that offered by the radicals and relevantly different from that of the américanistes.

II

Born in 1748 in Frejus, a small town in the south of France, Joseph Emmanuel Sieyès initially pursued a religious career. Yet his public profile changed drastically in 1788, when he published a series of political pamphlets. The first, titled “Essay on Privileges,” presented a violent attack on the aristocracy and prepared the ground for “What Is the Third Estate?,”, an inflammatory pamphlet in which he argued for dismantling the division of society into orders and for the attribution of political authority to the Third Estate. The notoriety that this publication brought to Sieyès became evident when he got elected, among the ranks of the Third Estate, to the Reunion of the Estates General. In this position, he played a prominent role in demanding the transformation of the Estates General into a National Constituent Assembly and actively participated in drafting France's first constitution. After its entry into force, Sieyès was re-elected to the National Convention but was soon forced to flee Paris to avoid execution during the Jacobin Terror. He came back to the political scene after the fall of Robespierre, when he participated in drafting the Constitution of the Year III and became a member of the directory. In this position, he probably concurred in the organization of Napoleon Bonaparte's coup of 18 Brumaire. Yet soon after the latter's ascent to power, Sieyès was sent into exile in Brussels, where he remained until just before his death in June 1836 in Paris.Footnote ¹⁹

Before we discuss Sieyès's argument against the anglomanes’ model of bicameralism, a premise is needed. Contrary to his anglomane colleagues and similarly to the américanistes, Sieyès had no fascination for the English political system. Although he was aware of both Montesquieu's seminal exposition of its qualities and Delolme's and Adams's books, he repeatedly discouraged fellow deputies from imitating the constitutional structure of the English state. To the contrary, he stubbornly argued that rather than seek to imitate existing constitutions, France should autonomously reflect on the type of constitution it wanted and, once decided, write it from scratch, leaving aside any misleading examples.Footnote ²⁰ Very much like Condorcet, he maintained that the English constitution only made sense within the context of English history and, even there, it did not seem to solve many problems.

Sieyès discussed at length the problems inherent to the English system of balance of power, whose longevity he took neither as a proof of stability nor as a demonstration of the effectiveness of the political system it underpinned.Footnote ²¹ Rather, he was astonished by the fact that the English political system survived as long as it had despite its horribly unstable, archaic, and confused constitution. This is because, Sieyès argued, reversing Montesquieu's argument, the balance of power was not a rational system designed to promote simplicity and order and to limit power. Rather, it resulted from a series of uncoordinated attempts to respond to England's history of corruption and conflicts among social orders. As a result, instead of being the model of virtue and order it was acclaimed to be, the English constitutional structure was built as a chaotic mix of precautions against disorder.Footnote ²² This was the reality of the much-praised balance of power. In Sieyès's words, any “system of counterweights inspired by the English system was nothing, at its core, but a system of corruption, an equilibrium of cupidity and serfdom.”Footnote ²³ As will become clear in what follows, many of Sieyès's considerations against the English model of balance of power are at the root of his critique of the royal veto and bicameralism, as well as of his alternative project for France.

Yet it is important to underline that although he shared the américanistes’ skepticism of the English constitution, he did not share their enthusiasm for the American constitution and never presented it as a model for France. Indeed, his argument about the importance of creating the French constitution from scratch without copying other constitutions applied to America, too.Footnote ²⁴ Throughout the debates of August and September in the assembly, Sieyès mentioned the United States only once and in negative terms, on September 7, 1789. On that occasion, he argued that by contrast with the American states, France could not be divided into a multitude of small nations—in other words, it could not become a federation—because it had to remain a “tout unique” (AP, VIII, 593). More interestingly, he also did not seem to rely on Livingston's text as a source of inspiration for the future of France. He only mentioned the Examen once, in a footnote to Qu'est-ce que le Tiers Etat?, and just to say that the author of the book convincingly explains why the English constitution is not suitable for France.Footnote ²⁵ He remained completely silent as to the main features of the American constitution and their appropriateness for the French context. This difference with the américanistes is then reflected in the arguments structuring Sieyès's critique of the anglomanes’ project. While he shared the former's dislike of the aristocratic biases of the bicameral project, he expanded his critique of the English model to include a structural and institutional critique of bicameralism's working and a complete rejection of the royal veto. It is to the latter that I now turn.

In contrast to most américanistes as well as radicals in the assembly, he rejected the proposal of attributing any veto power—absolute and suspensive alike—to the king. He argued that the royal sanction gave unequal power to the will of a single citizen, contradicting the principle of equality. Questioning whether the vote of an individual citizen, albeit the monarch's, could be allowed to weigh more than that of any other citizen, he maintained that “the king, considered as the first citizen, … has the right to vote … but nowhere can his vote be worth two votes” (AP, VIII, 593). Sieyès also opposed the king's veto because it would constitute an utterly arbitrary power. In his words, “the king will force deputies to support, and parties to uphold, all the laws he would like to see passed. If they pass, all will be done at his pleasure. If they are rejected, he will reject all contrary decisions” (AP, VIII, 593). The recognition of the royal sanction—in both absolute and suspensive form—would therefore be a means to attribute to an unelected citizen the power to block the representative assembly, bypassing the authority of the nation. It was, in Sieyès's terms, a “lettre de cachet sent against the will of the nation” (AP, VIII, 593). In his rejection of all forms of royal veto, Sieyès departed from the radicals as well as from most américanistes.

Following the assembly's decision not to empower the king with the right to veto legislative decisions, Sieyès focused on opposing the second half of the anglomanes’ project: bicameralism. He first explained his positions in 1788, when describing the conditions that the Third Estate should have posed to the Reunion of the Estates General. Successively, he delivered a lengthy and nuanced critique of bicameralism during the parliamentary debates that took place in autumn 1789 and eventually discussed bicameralism again in 1795. Interestingly, Sieyès's opposition to bicameralism remained consistent over time. This points to the remarkable fact that, even after having lived through the Terror, Sieyès did not change his mind as to the dangers and risks of dividing the legislature into two or more chambers.Footnote ²⁶ Analyzing the reasons behind Sieyès's opposition to bicameralism, we can identify two different sets of arguments. One relies on historical reflections relevant to the context in which he was writing and similar to those offered by both the américanistes and the radicals; the other is theoretical in nature, original to Sieyès's system of thought and more relevant to contemporary debates on the value of bicameralism in the context of representative politics.

Starting with the first, Sieyès criticized bicameralism for the implications that such an institution would have had for the newly established political system. Even before the Revolution, Sieyès clearly and repeatedly stated that France had to abolish the division of society into orders. When the delegates of the First and Second Estates joined the assembly of the Third in Versailles, the division of society into nobles, clergy, and labor lost any formal political value. On the night of August 10, 1789, when the assembly voted to abolish the nobility, it also lost all legal validity. The introduction of a second chamber, Sieyès claimed, threatened this achievement and reinserted the division of society into orders. If the deputies wanted to follow the example of their British counterpart, as it seemed to be the case at the time, they would have had to justify the presence of the second chamber by endowing it with a different identity vis à vis the first chamber. This would have necessarily entailed the reproduction of social divisions based on birth and wealth and, consequently, the people would have expressed their will not as part of a single body of equal citizens but as members of a specific order or group.Footnote ²⁷ This, in Sieyès's mind, ran counter to the revolutionary principle of the people's right to participate on a level footing in the creation of the law: “The institution of an aristocratic chamber or of a theocratic-royal chamber has something superstitious and shameful for the whole of humanity.”Footnote ²⁸ And France, Sieyès maintained, should not emulate England on that score, as “we cannot but see the latter as a monument of gothic superstition.”Footnote ²⁹

This line of criticism was then picked up by several américanistes to respond to the anglomanes who claimed that since America had to be the example, and America too had two chambers, France should have the same. As a response, Barnave and others suggested that although the American constitution was generally sound, its reliance on two chambers made sense only in a fundamentally equal society. Hence, the arguments used in America could not be easily adopted in France, where distinctions of birth “are already well established,” and a second chamber “would rely on them, would contribute to give them new strength and perpetuate them.”Footnote ³⁰ Bicameralism in France was thus an especially pernicious project. As the English case demonstrated, it threatened the principle of political equality and discredited the idea of a unitary nation by bringing back a feudal-like system, where socioeconomic characteristics would have defined one's status and political power.

The second set of arguments that Sieyès mobilized against bicameralism are different from those invoked by the radicals and substantially more developed than those offered by the américanistes. Going beyond the threat of reintroducing the division of society into orders invoked by the américanistes, Sieyès denied that bicameralism could successfully serve the purpose of limiting power. Against the radicals, he meant his critique to help create a constitution based on the principle of representation and limitation of power. And it is in this sense that he claimed that those who believed that a second chamber could limit power misunderstood the extent to which bicameralism was in fact a threat to it. The mistake sprung from the anglophiles’ incapacity to distinguish “between the constituent and the petitionary wills as well as the execution of the legislative will,” a mistake they inherited from the English constitution.Footnote ³¹ This confusion effectively led them to attribute all powers to the representatives. This appeared excessive and potentially dangerous to the anglophiles, who tried to tame the power of the representatives by recurring to the English model of balance of power—a move that Sieyès ridiculed with the following words:

As stated in this passage, the main features of the balance of power adopted by the anglophiles were the doubling of all instances of power and their structural competition and mutual checking. This, the argument goes, would have prevented the usurpation of power and the degeneration into tyranny. Yet Sieyès believed the balance of power to be a fundamentally unsound model of institutional design. In his view, the division of the lawmaking power into two chambers led to despotism. The introduction of a second chamber entrusted with similar powers to those of the first, he claimed, entailed first a legislative paralysis, which he called contre-action, and then an action unique, a single person imposing his will on both chambers.

Starting with the former, Sieyès maintained that two chambers that are equally powerful and independent of each other would jeopardize any certainty in the political sphere. One chamber would pass a law, and the second would block it, leaving the country in a legislative limbo where no law could be effective because no law could pass the double scrutiny of two equally powerful but opposed legislative bodies. In Sieyès's terms: “If the two legislative bodies, entrusted with the same power, remain independent, there will be no certainty in public affairs: the two chambers are in opposition [contre-action].”Footnote ³³ Trying to make his point clearer, Sieyès illustrated with a metaphor the threat engendered by the presence of two chambers with equal powers to limit and oppose each other: contre-action. This, he claimed, amounted to entrusting two different building companies with the task of building the same house one after the other. Those who defended this choice, “finding that they might have given too much power and responsibility to the first building company … suggest to the landlord that, once the first company has finished its job, he should hire a second building company which, being equally qualified, will restart the construction of the house from scratch.”Footnote ³⁴

However, Sieyès also warned his fellow deputies of the dangers coming from two chambers actually being able to pass laws. This, he claimed, was not a proof of the system having found a “chimerical equilibrium.” Rather, it indicated the collapse of a system based on contre-action and its degeneration into a despotic regime ruled by a single instance of decision and action (action unique). In Sieyès's words, when the two chambers eventually vote together it is because “the checks and balances and the system of equilibrium are no longer in place and this unitary action [action unique], against which you believed you had protected yourself through legislative vetoes, has eventually succeeded at establishing itself.”Footnote ³⁵ Also in this case, Sieyès resorted to a metaphor to illustrate how the legislative blockage created by contre-action—two chambers opposing each other and not passing laws—results in the establishment of action unique—a single person taking control of the lawmaking process. He compared the two chambers to “two horses harnessed to the same carriage, which we would like to go in opposite directions, and so remain where they are, regardless of promptings to the yoke and the stamping of hooves, unless a royal coach is mounted at the front to give them direction; but we do not want a royal coach.”Footnote ³⁶

Hence, Sieyès made it clear that two chambers would, in the best of cases, completely paralyse the political system, which, almost necessarily, would soon degenerate into the despotism of a single man—be it the king or any other despot—taking control of the two chambers and prompting them to act according to his preferences and interests. Instead of limiting power and guaranteeing good lawmaking, bicameralism was a direct threat to both. It thus follows that France should not have adopted the English model of balance of power.

III

Throughout his political career, Sieyès drafted an impressive number of constitutional projects. Some were extremely influential; some were adopted but failed and some did not even make it to the legislative floor. Nonetheless, they earned him the fame of having

Leaving the polemical intent of this passage aside, Burke had a point when he stressed the variety of constitutional projects Sieyès had in mind. Yet it is remarkable that at least one element remained consistent in all his constitutional projects: the unicameral structure of the legislative. This he called concours, or system of organized unity, and opposed to the English model of balance of powers.Footnote ³⁸

Sieyès's enduring support for single legislative assemblies was motivated not only by his distrust of bicameralism but also by his belief that the nation should speak with a single voice. Since the former was a unitary political body, it had to express its political will in a unitary form (“la volonté générale doit être une”). For this to be possible, the law had itself to be unitary. Hence, Sieyès claimed, the body of representatives entrusted with the authority of making the law should also be unitary; it should be a single legislative body.Footnote ³⁹ As he explained in the strongest rhetorical terms in front of the assembly: “Remember, Sirs, your decision of the 17 June [1789] … when you declared the National Assembly to be one and indivisible. What constitutes the unity and indivisibility of an Assembly is the unity of decision” (AP, VIII, 597). This unity of decision was guaranteed only by the unitary character of the legislative assembly.Footnote ⁴⁰

In addition, Sieyès maintained that a single-chamber system could successfully guarantee the limitation of power and introduce checks and balances on the lawmaking authority. First, Sieyès accused his fellow deputies of confusing the action unique, which they unsuccessfully tried to prevent through bicameralism, with the unity of action (unit é d'action). In his words, “The constitutionalists we fight here are those who confuse, in their use of the language, the unit é d'action with the action unique. We want the first; they establish the second.”Footnote ⁴¹ The mistake, Sieyès went on to say, is that they did not understand that, paradoxically, unity is extremely important in guaranteeing the limitation of powers in the political domain. Afraid of giving too much power to a single instance of decision, anglomane deputies tripled the instances of decision. This, in the long run, would have created the above-mentioned need for action unique that, in turn, would eventually lead to the creation of a despotic regime.

Instead, the lawmaking tasks should be differentiated inside the assembly by exploiting the already present division of labor among its members and coordinating their tasks in such a way as to make the whole assembly benefit from the action of its constituent parts.Footnote ⁴² Sieyès explained his project in the following terms:

More concretely, this meant that the best way to secure pondered decisions was not the creation of a second chamber but the establishment of two or three sub-committees separately discussing different issues. These committees would also vote in physically separate spaces but at the same time, and the votes would be counted per head and added together in a single count, thus resulting in a single vote of the unitary legislative assembly.Footnote ⁴⁴ This, Sieyès argued, would guarantee better discussions of the law, as it would leave more time to reflect upon it, it would assure the regular working of the lawmaking process, and it would avoid the risk of one chamber revoking what the other decided a few days before.Footnote ⁴⁵

Moreover, Sieyès also maintained that to avoid the dangers of bicameralism it was necessary to stop addressing political authority through the concept of national sovereignty.Footnote ⁴⁶ This portrayed political authority as a unitary, absolute, and undivided power in the hands of the assembly representing the nation. By contrast, the idea of constituent power was to be preferred as it allowed for the distinction between the original bearer of power, the people, and its representative assembly, thus necessarily presenting the second as a derived and limited power. Sieyès described the misleading character of the idea of national sovereignty as follows:

The very idea of sovereignty, especially as used by the deputies, implied that the nation's political authority was to be embodied by the undivided lawmaking power of the legislative assembly. This, to the anglomane deputies’ minds, created an excessive concentration of power that, as discussed above, needed to be counterbalanced and limited. The solution proposed by the anglomane group was the institution of a system of triple vetoes: one attributed to each of the legislative chambers against each other and one given to the king against both chambers. As discussed above, this system of balance of power was, in Sieyès's opinion, doomed to fail. Hence, to avoid bicameralism, it was necessary to stop using the idea of national sovereignty, as the anglomanes’ support for bicameralism directly derived from their concerns with the absolute power sovereignty entailed. By eliminating the language of sovereignty—so Sieyès's argument went—all the anglomanes’ reasons in favor of bicameralism would lose value and cogency. To do so, however, Sieyès needed to propose an alternative conceptualization of the supreme political authority, and he found one in the idea of constituent power.

Constituent power implied that the original political authority lies with the people, who have the power to create the state and its fundamental law, the constitution. In Sieyès's words, “Constituent power can do everything… . The nation that thus exercises the largest, the most important of its powers, must be, in the exercise of this function, free from all constraints and forms, other than those it freely chooses to adopt.”Footnote ⁴⁸ As shown in this quote, the idea of constituent power entails first and foremost the popular institution of the political order. Yet, given that constituent power is understood by Sieyès as a founding power, it is only exercised in extraordinary founding moments. Accordingly, for Sieyès, the people have neither the time nor the necessary knowledge and skills to get involved in politics on a daily basis. After authorizing the general norms of the political system—the constitution—they retreat into the private sphere and confer the ordinary working of politics onto ordinarily elected representatives who act within a legal and political framework that has already been authorized and constituted. Hence, this representative constituted order is the logical and necessary counterpart of the nation's constituent power. It works according to the constituent power's will—as outlined in the constitution—but is not its direct expression. Within it, the representatives have limited delegated powers and act only within the constitutional boundaries.

The distinction between the constituent power and the constituted order is moreover guaranteed by what we would call today the rigid character of the constitution. Being hierarchically superior to ordinary laws, it distinguishes between constituent and constituted politics and subjects ordinary representatives “to laws, to rules, and to forms that they are not authorized to change.”Footnote ⁴⁹ Consequently, the constituted order derives its authority from the constituent power of the nation, but can only exercise it within pre-established limits. Amendable only by the constituent power, the limitation of the constituted order and, within it, of the legislative assembly was guaranteed.

Moreover, in Year III, Sieyès claimed that the limiting function of the idea of constituent power could be strengthened by introducing a constitutional jury, an indirectly elected body independent of both the legislative and the executive, with, among other functions, that of checking the consistency of the acts of the assembly in relation to the people's constituent will as expressed in the constitution.Footnote ⁵⁰ In his words, “I give a conservator, a guardian, to the constitution through the creation of a constitutional jury.”Footnote ⁵¹

In contrast to the idea of sovereignty, which entailed an absolute and continued exercise of power by the assembly representing the nation, the notion of constituent power allowed Sieyès to think in terms of vertical limits to power. It was not the horizontal duplication of sovereignty into two legislative chambers that constrained the exercise of power. Rather, it was the hierarchical differentiation between the original and absolute constituent power of the nation, and the derived and bounded power of the constituted legislative order, that constrained the latter inside the limits decided by the former in the constitution. In other words, it was the idea of constituent power, and not the division of the legislative into two chambers, that was the real guarantee of the limitation of power. As Sieyès maintained before the assembly, the “gigantic idea of sovereignty,” and with it the bicameral system and its mutual vetoes, should find no place in France because, unlike the English system of balance of power, which “has not yet distinguished the constituent from legislative power,” a “sound and useful idea was invented in 1789: the separation of the constituent power from constituted powers. It will go down in history as a discovery that advances science, for which the French can be thanked.”Footnote ⁵²

In conclusion, Sieyès's preference for a unicameral legislative system can be summarized as follows. First, he claimed that the establishment of a second chamber was contrary to the revolutionary principle of equality. This was based upon the abolition of all distinctions between estates and the attribution of equal voting rights to citizens. A second chamber implied the reintegration of such distinctions, because it identified one part of the population as different from and superior to the rest of the nation. This, he claimed, was the characteristic feature of the English system and needed not to be imitated in France. This argument, as seen above, substantially overlapped with the critique of bicameralism offered by both the américanistes and radical deputies. However, Sieyès also advanced a second, original, argument: the creation of a second chamber did not secure the limitation of power. On the contrary, it endangered it because the very idea of limiting power through a further layer of separation and a system of balance and counterweight was misleading. This was both because there was a better way to limit power and because the bicameral system would eventually create the conditions for the rise of despotic regimes.

By contrast, Sieyès modestly argued that power could be limited by means of what he described as the greatest invention of the French Revolution: the distinction between constituent power and the constituted order. Its greatness lay in the fact that it allowed for the hierarchical distinction between constitutional norms and ordinary legislature and, in so doing, created a vertical limit to be imposed upon the exercise of power by legislative, executive, and judiciary. Accordingly, the legislative power found its insurmountable limit in the rigidity of the constitution, as controlled by the constitutional jury. Consequently, there was no need for balancing the power of the legislative assembly with a second, and competing, instance of legislative decision. This would shift the political axis from a vertical division to a horizontal separation and bring instability into the political system. It would create a second claim of legitimacy, inconsistent with the very fact that the national will needed to be unitary and unitarily represented. To allow two legislative chambers to compete against each other over which is the best interpreter of the will of the nation entailed, for Sieyès, the institutionalization of legislative paralyses. And if the legislative power becomes unable to take decisions, it necessarily ends up fostering the idea that, in moments of crisis, an all-powerful individual figure is better suited to overcome the legislative's blockage. Consequently, the vertical distinction between constituent power and constituted order successfully guaranteed the limitation of power, while the horizontal separation offered by the bicameral system threatened it.

IV

The political thought of the Abbé Sieyès is commonly considered an important phase in the elaboration of modern liberal constitutionalism. His interventions at the National Constituent Assembly, at the Convention and during the Directoire helped shape the institutions we now associate with the constitutional state. Not only did his formulation of the idea of constituent power go down in history as a “French invention,” but his theory of representation, the constitutional jury, and his electoral laws have had a long-lasting impact on modern constitutionalism. Yet his opposition to bicameralism has largely been ignored in historical narratives about the intellectual development of liberal constitutionalism. This is for two reasons.

First, much of the literature dealing with bicameralism discusses Sieyès as just another member of the group of the américanistes. As a consequence, it has often been assumed that his critique of bicameralism corresponds to that offered by other eminent members of the group. Yet while he was both personally and intellectually close to most of them, his arguments against the royal veto and the second chamber should be treated as distinctively his own. As I hope to have shown, like the américanistes and the radicals, Sieyès feared that bicameralism would threaten equality and re-establish the division of society into orders. However, in contrast to them both, he opposed the royal veto in all of its forms and offered an institutional critique of bicameralism that was at odds with the radicals’ faith in popular sovereignty and distinct from the américanistes’ focus on the aristocratic biases intrinsic to second chambers.

The second reason why Sieyès's critique has been overlooked is that historians of political thought tend to portray bicameralism as a key concept in the development of liberal theories of the separation and balance of power. Focusing on the debates of the American Revolution and on the theory of the balance of power, bicameralism's relationship to the history of constitutionalism is presented as relatively linear and uncontroversial.Footnote ⁵³ In the exceptions, when the debates of the French Revolution are considered, the focus is on the critique that Sieyès shared with the américanistes. Their arguments about the entrenchment of aristocratic interests are taken to be an interesting piece of historical evidence, but one with little relevance for the development of the liberal constitutional state. After all, liberalism soon stopped worrying about the division of society into estates and, by contrast, endorsed bicameralism as a means of limiting power against the potentially illiberal implications of unicameral systems.Footnote ⁵⁴

The result is a story that is ironically oblivious to the contribution of one of the fathers of liberal constitutional thought. As I hope to have shown, Sieyès's reasons for preferring unicameral systems rely on arguments that are fully internal to and consistent with the intent of limiting power and defending liberty. The debates of the National Assembly suggest that while there are liberal arguments to defend bicameralism, these same arguments can also be used to justify unicameral legislative systems. As Sieyès's example demonstrates, the choice between bicameral and unicameral legislatures does not necessarily coincide with the choice between liberal and less liberal or illiberal political systems. Rather, what often lies behind this choice are two different but equally liberal ways of approaching the same problem: limiting power and defending liberty. This choice, however, is somehow forgotten by the history of liberal constitutionalism.

As a result of forgetting this choice, we also risk overlooking what Sieyès's critique of bicameralism has to offer in the way of our understanding of contemporary politics. Setting aside the contextual elements of his critique as well as the failure of some of his projects, Sieyès's argument about the potentially negative effects of bicameralism offers insights into what could go wrong with bicameralism when the second chamber systematically disagrees with the first and repeatedly delays or rejects its bills. Sieyès called this situation contre-action; contemporary political scientists call it gridlock. Sieyès warned that sustained contre-action might cause frustration among both the representatives and the people. The dissatisfaction caused by legislative blockages, he maintained, could grow to the point of making the action of a single man, action unique, look dangerously appealing. And this, Sieyès suggested, proves that adding further layers of checks and balances risks frustrating the limitation of powers rather than strengthening it. After all, history, as much as contemporary politics, suggests that popular frustration with legislative slowness might indeed lead to demands for strong and charismatic executive powers. And if one is to learn anything from Sieyès, it is that this should be as important a concern for liberals as is the strict enforcement of the balance of powers.