II. Contextualizing pouvoir constituant: Sieyès and three arenas of political struggle

Contemporary debates about constituent power of the people have assumed, but have so far failed to (clearly) analytically distinguish, three arenas of political struggle – democratic, social and national – in which this concept enjoys eminence. While some theorists, such as Carl Schmitt, managed to marry the idea of constituent power of the people with the justification for a sovereign dictatorship,^{Footnote 10} most contemporary constitutional theorists have focused on democratic insurrections as the true home for the exercise of constituent power. Thus understood, the concept of pouvoir constituant justifies uprisings and the overthrow of unresponsive, corrupt, despotic political regimes. In its ‘ultra-democratic’ and ‘near ritualistic’ incarnation, it also requests the convocation of constituent assemblies, and ratification of a new constitution by means of a referendum.^{Footnote 11}

None of this necessarily implies a particular type of socio-economic transformation. Some authors argue that the radical democratic understanding of constituent power is implicated in creating a constitution that ‘tends to incorporate many of the revolution’s social promises’.^{Footnote 12} In this view, the people are the downtrodden, the poor and the miserable. For others, the telos of constituent power in the French Revolution cannot be associated with any particular social programme. Rather, its main purpose was to shatter politically unresponsive and unrepresentative legal structures of the Ancien Régime, which entrenched special privileges at the expense of the vast majority of the population. While nominally open-ended, the exercise of constituent power has been justified, according to its purpose in establishing a politically egalitarian, rights-based, in effect, liberal-democratic constitutional regime.^{Footnote 13}

But in the vocabulary of constituent power, the democratic and the social arenas of political struggle have from the outset been joined at the hip. Sieyès’s ‘What is the Third Estate? was not only a call for the abolition of privileges and the establishment of the democratic order, but also part of the ‘rhetoric of social revolution’.^{Footnote 14} For William Sewell, this rhetoric ‘harnessed private social grievances and resentments to public political issues; and … called into question the basic architecture of the Old Regime's social order’.^{Footnote 15} In his pamphlet, Sieyès ‘linked a very specific and practical political program to the identification and denunciation of a class enemy’.^{Footnote 16} The Ancien Regime was a system where one-twentieth of the population leeched off the productive efforts of the rest of the population. The ‘arduous work’ in ‘public services’ and ‘private activities’ comes almost exclusively from the Third Estate. Excluding them – the productive ones – from political power would be a ‘social crime’.^{Footnote 17} In other words, the problem was not only that nobles and clergy were political oppressors, but also that they were social parasites and economic exploiters.

While Sieyès’s constituent power clearly speaks to the democratic and the social arenas of political struggle, the salience of constituent power to the nationalist arena is not immediately discernible. In fact, when contemporary constitutional theorists invoke Sieyès, they do so mainly to celebrate his purportedly civic understanding of nationhood, where the nation exists as the ‘body of associates living under a common law and represented by the same legislature’.^{Footnote 18} What logically follows from this definition is the circumscription of constituent power’s sphere of applicability. As Martin Loughlin has recently suggested in his analysis of Sieyès, ‘it is the government, not the nation, that is constituted’.^{Footnote 19} According to this line of thought, we can only speak about constituent power once we have settled the issue of the identity of the constitutional subject. If this is correct, national struggles, and nationalist struggles about territory in particular, should be divorced from the vocabulary of constituent power. By implication, to attribute constituent power to a civic nation defined by existing ‘common law’ is to dignify the spatio-political status quo, and exclude struggles over territory and power sharing between different nations within a single polity – the bread and butter of nationalist conflict – from the purview of constitutional theory.

But Sieyès’s pamphlet features another, radically different understanding of a nation, which complicates the picture above.^{Footnote 20} The nation here is not a territorially and institutionally prefigured citizenry but an assemblage of ‘isolated individuals seeking to unite’.^{Footnote 21} ‘This fact alone’, Sieyès is clear, ‘makes them a nation’.^{Footnote 22} The nation, to put it differently, is an amorphous and desirous assemblage of individuals who share nothing but the political impulse of wanting to live together. When these individuals begin to ‘confer with one another and agree upon public needs’ their union obtains power.^{Footnote 23}

The focus on the alternative account of nationhood by implication reveals an alternative account of constituent power: constituent power emerges among and for those who share the same political aspiration to live together and are able to discursively solidify a new national identity. Pre-existing institutions, obviously, go a long way towards helping generate constituent power, but are not necessary. The people (nation) endowed with constituent power is not (only) a ‘body of associates’, a civic body, but also, a group held together by affective bonds: an entity we today usually describe as an ethnic nation. This interpretation shows at a minimum that there is a tension between two understandings of the nation in Sieyès’s overall argument about constituent power that enables it to be read both ways. While this still does not mean that constituent power ought to be invoked as the appropriate template for the context of a national struggle in constitutional theory, it does mean that such struggles cannot be divorced from debates about constituent power by a simple definitional fiat that somehow claims to have discovered the true meaning of constituent power.

If this were true, then behind the unitary concept of constituent power there would be three arenas of political struggle – democratic, social and national – in which this concept is involved, both at the level of practice, as well as at that of theory. By isolating them analytically and then engaging them side by side in the sections that follow, my aim is not to deny the possibility of their factual overlap in actual political struggle, nor the attractiveness of the possibility that the projects of democratic, social and national emancipation may be productively theoretically conjoined. Rather, my next aim is to show how different arenas of struggle carry with them specific assumptions and risks, and as a result, rely on certain underexplored trade-offs that produce particular sets of winners and losers.

III. Constituent power in the arena of democratic struggles

Though Sieyèsian constituent power cannot be understood outside the social struggles on the part of the young French bourgeoisie for political primacy, the dominant understanding of popular constituent power, today, links it with extra-legal popular movements that seek to overthrow authoritarian, unresponsive political regimes. When citizens gather in the streets, when they paralyse the political and social life of a country, when parts of the state’s coercive apparatus switch sides yet when civil war ultimately does not ensue, this is the ideal-type of the exercise of popular constituent power. The deposing of Ceausescu and Honecker in 1989, Milošević in 2000, Ben Ali and Mubarak in 2011: these are constituent power’s proudest recent achievements.

But not just any overthrow of an unresponsive regime counts as the exercise of the people’s constituent power. Built into the idea of constituent power is a threefold normative promise. First, the exercise of constituent power ought to be triggered by as many of those who will end up under a new constitutional order. What undermines the credibility of the invocation of the people in a process of constitution-making is if the process is triggered by a dictator’s lieutenant, a military junta, or an external intervention. Second, once the process of constitution making has begun, it ought to be as inclusive and participatory as possible.^{Footnote 24} As Carl Friedrich famously said, ‘[t]o make the constitutional decision genuine it is also necessary that it be participated in by some of those who are being governed, as contrasted with those who do the governing. This differentiates such a constituent act from a coup d’état.’^{Footnote 25} Finally, the imperative of inclusiveness does not exhaust itself in the triggering and the process alone. To be attributed the name of constituent power of the people, the telos of its exercise must be the creation of an inclusive regime of politically equal individuals.

But when these three normative promises selectively materialize in practice we have a problem with the vocabulary of people’s constituent power. For instance, is it ‘the people’ that is exercising its constituent power when democratic political transformation is triggered by a small section of the population, with the helping hand of the army? Or, by the army claiming to be the ‘armed people’, itself? Justifying the army’s role in the deposition of the Peruvian left-leaning regime of General Velasco in 1975, General Vargas Prieto exclaimed that ‘the true forerunners of the Peruvian revolution are its armed forces, the root and institutional essence of the people because they are born from them’.^{Footnote 26}

Today, as well, we do not need to go beyond current events to see the significance of this question. Who were the people in Egypt in 2013? Those in Tahrir Square on 1 July 2013 demanding the ousting of democratically-elected president Morsi? Or those, at Rabaa al-Adawiya Mosque, on 14 August, 44 days later, demanding his reinstatement? When the three normative promises do not align, we have something that has not been theorized in constitutional theory, something escaping Friedrich’s neat distinction between a constituent act and a coup d’état: a rev-o-coup or a coup-o-lution.^{Footnote 27} There is no way from within the vocabulary of constitutional power to answer the question what has been more legitimate, Sisi’s ‘coup-o-lution’, which emerged through the army coup d’état, yet promised a new, inclusive round of constitution-making, or Morsi’s electorally legitimate ‘demokratura’, that was apparently bent on curtailing the freedoms of citizens.

In response, one could say that the practical contestability of the identity of the people is actually not a problem for the theory of constituent power, but rather a condition for its correct understanding. For some theorists, such as Hans Lindahl, the mantle of peoplehood is always up for grabs, and constituent power can only be attributed ex post, to the successful political project, achieved in the name of the people.^{Footnote 28} A smaller problem with this understanding of constituent power is that it might become the victim of its own success. If Lindahl’s claim is taken seriously, we can imagine a situation in which political antagonists invoke the will of the people, only to be met with the confident knowledge on the part of the other side that such invocation is just another attempt to ‘pull off’ a radical political change. To work its magic, ironically, constituent power is best left ‘in the dark’.^{Footnote 29}

But Lindahl’s intervention, illuminating as it is, neglects that ‘the people’ is invoked not only after, but also during the democratic revolution, and during the period of protracted political upheaval. During this period, the invocation of ‘the people’, such as in Leipzig on 9 October, 1989, may be intended to have and indeed may end up having a palliative, violence-minimizing impact.^{Footnote 30} To assert the existence of the people, one people, is not only to broadcast with confidence to the security apparatus that vox populi is vox dei, and that resistance to its will is futile. It is also, as Leipzig civil society groups intended it, a call for the security apparatus to switch alliances, to side with the people, and bring a speedy, non-violent end to the uprising.

Equally, however, these putative palliative effects of the invocation of the people are often undermined in cases of the temporal or spatial proximity of the people’s antagonistic invocation. To be plausible, the assertion of peoplehood relies not only on the ‘activity’ of those who present themselves in Tahrir Square in Egypt, or Maidan Square in Ukraine, but also on the ‘passivity’ of everybody else, which enables the attribution of the claim of peoplehood to all.^{Footnote 31} This passivity may be temporal in the sense that a significant period of time passes between two successful invocations of peoplehood. Or, it may be spatial in the sense that the claims of peoplehood will not be matched by the simultaneous ‘presentation’ of a counter-people devoted to the maintenance of the political status quo. Authoritarians, semi-authoritarians and dictators such as Milošević, Yanukovych and Assad know this well. As a result, part of their strategy for staying in power has always been to show that a credible claim to peoplehood cannot be made since there is another ‘people’ assembled, two squares away, supporting not the revolution, but their own regimes.

Constitutional theory deals with the problem of what I call spatio-temporal proximity of the people’s antagonistic invocation in two ways. The first is well known. Carl Schmitt has posited the homogeneity of the population as a condition for the existence of constituent power in a democracy. Some have attributed Schmitt’s embrace of homogeneity to his ethno-nationalist commitments. But if the preceding argument were correct, homogeneity should be better understood as a wager that the likelihood of the proximate antagonistic invocation of peoplehood is low. In other words, homogeneity is a stand-in for the requisite modicum of ‘passivity’, necessary for the invocation of peoplehood to make sense during the period of political upheaval.

Constitutional theory’s second way of dealing with the problem of antagonistic proximate invocation of peoplehood is not so well illuminated, though it is present in the classical literature on the subject. As John Locke argued, there is ‘slowness and aversion in the People to quit their old Constitutions’.^{Footnote 32} If the people are naturally docile, what justifies democratic revolutions is not only the objective quality of the regime’s behaviour, and not only the normative quality of the constituent process, but also the fact of the population’s justified exhaustion, the assumed depletion of people’s capacity for political suffering. The concealed tropes of docility and exhaustion serve as constitutionalism’s meta-guarantee that popular uprisings won’t happen too often, that there won’t be temporal proximity between opposing invocations of a finicky ‘people’. Without this tacit wager, the proponents of constitutional power would not only have to accept that there is nothing problematic with spurious re-foundations of constitutional orders, but would also have a hard time associating frequent upheavals with the constituent power of the people.

In many cases of democratic upheaval we cannot rely on Schmitt’s and Locke’s postulates of homogeneity and docility to help us identify who legitimately speaks for the people during the period of political upheaval. Even nominally homogenous states can be radically polarized, their ‘streets’ and Schmittian ‘horse tracks’ populated with antagonistic groups claiming the mantle of peoplehood. Equally, only rarely can one credibly distinguish between the pose of exhaustion and the true exhaustion of reasonable political alternatives to revolution. To attribute the honorific of ‘the people’ as shorthand for legitimacy judgment in such situations is futile at best, and inflammatory at worst.

If this were true, to keep insisting on the vocabulary of peoplehood – its sovereignty and constituent power – in the context of democratic revolutions is to rely on a tacit consequentialist calculus, and not on the logical necessity of understanding the constituent power of the people as a politically successful regime change that can only be deigned ‘popular’ in hindsight. To the contrary, what appears as an ontological explanation of the vocabulary of peoplehood aimed at fellow theorists is in effect a hidden judgment that the putative benefits of the people’s invocation trump its potential hazards. To continue indiscriminately invoking the concept of the constituent power of the people in the context of democratic struggles implies the upholding of a globally valid trade-off: that the benefits from catalysing participation, political inclusion and the quick stabilization of the nascent political order^{Footnote 33} with its rhetorical potential to persuade the security apparatus to switch sides, on the one hand, are more significant than the perils of the increased solipsistic violent vehemence on the part of those who claim to fight in the people’s name.

When asked about the nature of the popularly-backed military intervention against democratically elected president Morsi, one Egyptian journalist urged: ‘[d]escribe, don’t label’, ‘[r]efrain from the use of coup or revolution … because they’re loaded terms and will explode in your face’.^{Footnote 34} Probably animated by similar concerns, Andrew Arato has recently warned that ‘from the beginning the populist revolutionary imaginary of [the Egyptian political] transformation pointed toward the outcome whose unfolding we now witness, although it could have been avoided through constitutional learning’.^{Footnote 35} If Arato has a point, does this mean that constitutional theorists should abandon providing theoretical rationalizations for the grassroots’ invocation of the will of the people? While Arato is probably right to counsel ‘the central post-sovereign principles of consensus, public participation and self-limitation’^{Footnote 36} as stand-ins for the paradigm of constituent power in the process of post-conflict constitution-making, invoking ‘the people’ – its will, constituent power, and sovereignty – may in certain contexts have salutary political effects. The task of constitutional theory should not then be to counsel the wholesale rejection of the vocabulary of constituent power in the contexts of democratic struggles, but rather to articulate those putative benefits and risks, highlight the possibility that their ratio – and, by implication, the advisability of invoking ‘the people’ – will in a given situation always be contingent.

IV. Constituent power in the arena of social struggles

Reconstituting constitutional orders in the name of the people is often associated with the redistribution of wealth and social egalitarianism. The populus, the putative bearer of constituent power, is traditionally seen not only as the body of citizens, but also the plebs, the lower stratum, those oppressed and dispossessed.

In Sieyès’s classical account of constituent power the two registers of political struggle overlapped: the Nation, the Third Estate, demanded democracy and political equality, as well as the overthrow of a parasitical and inefficient socio-economic system. In contemporary political practice, however, the relationship between the democratic overthrow and the direction of radical social change is contingent. The ‘99%’ (echoing Sieyès’s 19/20ths) in the Occupy Wall Street movement have not mobilized – not en masse, and not loudly at least – around a radical political programme to overthrow the extant political system of the United States on the grounds that it is undemocratic. Conversely, some have claimed that popular insurrections in Tunisia and Egypt, while aiming to change the political regime, had no ambition to change the foundations of the existing capitalist economic model. If anything, according to Hernando de Soto, what animated the protesters in these two contexts was a desire for legal certainty, and the protection of their nominally guaranteed, but in reality disrespected property rights.^{Footnote 37} Departing from capitalism, or ushering in a more equitable distribution of wealth in the name of the people, has not been on the aspirational horizon of these revolutions. Likewise, the early 1990s return to capitalism, the cheerful re-embrace of social inequality where the state- or socially-owned property ended up restituted to the descendants of the Austro-Hungarian nobility, has actually been inextricably linked with popular revolutions in the former communist countries in Eastern Europe. Democratic social transformation in the name of ‘the people’ can cut both ways.

Irrespective of the factual contingency of the relationship between democratic change and the content of social change, recent work in constitutional theory has not abandoned the project of linking democratic emancipation with social egalitarianism. Linking them, however, has been achieved either at the price of ‘weakening’ constitutionalism, or that of abandoning the very collective agency of ‘the people’. In the first case, democratic and social emancipation are linked implicitly; in the second, explicitly.

In the first case, where the link between democratic and social emancipation is implicit, the hoped for social change results from an expansive understanding of constituent power, unconstrained by prior substantive or procedural constitutional guarantees. Joel Colón-Riós’ ‘weak’ constitutionalism, for instance, downplays the importance of constitutional form, and demands that the citizens be allowed to propose, deliberate, and decide on a new constitution unconstrained by the strictures of the existing constitution.^{Footnote 38} This means that constituent power can, if it so decides, abolish private property, expropriate the rich and institute a far-reaching system of economic redistribution.

Colón-Riós’ explicit argument does not go that far. While he mentions in passing that liberal-democratic constitutional rights carry the baggage of ‘mainstream acquisitive capitalism’,^{Footnote 39} he does not associate ‘the people’ with the socially deprived ‘populus’ (the 99%, for example) nor is his constituent power explicitly deployed in the service of a radical, left-wing project. The examples he uses to substantiate the desirable operation of constituent power, however, come from Venezuela, Colombia and Ecuador – all countries where constitutional change in the name of people’s constituent power has led not only to an increase in popular political participation, but also to an increase in social equality.

The implicit bet that inclusion and participation will yield greater social equality has paid off in Latin America. But the result of the openness of the constitutional process without prefiguring the idea of the people to include the promise of social equality can, in theory and in practice, yield constitutional settlements that undermine the ideal of sociopolitical equality. Colón-Riós’ recent contribution to the debate should be credited for being willing to bite that bullet. Instead of explicitly defending a left-wing constitutional project, he follows Sheldon Wolin and Cornelius Castoriadis in their understanding of democracy, which embraces the inherent riskiness and the radical political openness it requires. For Wolin, democracy is not a mode of government, but a risky, episodic moment of popular participation that cannot be contained, ever destined to challenge established constitutional forms.^{Footnote 40} Equally, for Castoriadis, democracy means that the people can do anything, which establishes it as a regime of ‘historical risk’, and potentially ‘a tragic regime’.^{Footnote 41} And indeed, while constituent power seems to have served the cause of social justice in Latin America, in Europe, in Croatia, the constitutional referendum based on popular initiative resulted in a triumph of a right wing political movement that has managed to constitutionally ban gay marriage,^{Footnote 42} and would have most likely succeeded in reducing the right of the minority Serb population to use its language in public had pressure from the European Union not succeeded in persuading the leading centre-right party, the Croatian Democratic Union, to abandon support for this project.

The simplest way to escape implicating constituent power with ‘risk’ and the potential constitutional ‘tragedy’ of political oppression is to associate it explicitly with a specific project of social change. In his recent work on constituent power in the context of the Greek mass demonstrations in 2011 in Syntagma Square, Costas Douzinas does exactly that. In doing so, however, he severs the link between ‘the people’ and constituent power.^{Footnote 43} ‘Constituent power’ is not the master attribute of the unitary, sovereign people, but rather the cause of a ‘sovereign people’s’ rightful downfall.^{Footnote 44} Disobedience in the city squares, controversies over immigration and ethnicity, all demolish the fiction of the people’s corporate existence, and its role in legitimizing an extant constitutional order.

Instead of the debunked fiction of ‘the people’, Douzinas proposes a conceptual innovation, a differently imagined ‘we’ that steers clear of both the unitary people, as well as from the formless multitude, à la Hardt and Negri. The new collective agent, ‘demos in the square’, as Douzinas calls it, captures the new-old phenomenon ‘where multiple singularities lived in common, discussed, decided and acted together’. While Douzinas’ theoretical intervention gives it a name, ‘demos in the square’, those assembled in the square have themselves refused to disclose their political identity as a unified agent, opting throughout the demonstrations to remain a simple, all-inclusive ‘we’.

In underscoring inclusion, Douzinas’ ‘demos in the square’ is no different from Kalyvas’ or Colón-Riós’ highly inclusive, highly participatory ‘people’. However, the Syntagma Square’s ‘we’ is better suited for the imaginative inclusion of the marginal – the poor, minorities and immigrants.^{Footnote 45} Whether this is true is an empirical question, but the crucial difference between the two concepts is absence of the claim to ultimate political authority, on behalf of the ‘demos’. The resolutions of those in the square bind no one: while present in the square, the ‘we’ is representative of Greece’s population, but they are not its representatives.

If that were the case, it is fair then to ask what is the utility of Douzinas’ conceptual innovation in the context of social struggles? Douzinas’ demos does not only fight theoretical battles, but as a conceptual innovation has a twofold strategic use. It serves as a blueprint, as well as a catalyst of actual constitutional change. In its first guise, ‘demos in the square’ encapsulates the principle of equality, which is both political as well as social. While with Kalyvas’ or Colón-Riós’ people we cannot know whether the constituent process will yield a socially equal society, with Douzinas’ demos, as inspiration for the content of constitutional transformation, we know it must. ‘Starting from direct democracy’, Douzinas maintains, ‘equality is transferred to social and economic rights creating a duty to set aside inegalitarian structures’.^{Footnote 46} Mirroring the example of how demos in the square operated during the insurrection, the new constitution should entrench ‘co-operation and solidarity, sharing of knowledge and skills, discussing in public and deciding in common [as] the guiding principles’.^{Footnote 47} From an institutional point of view, a new constitution will entrench ‘the principle of occupations’ where ‘the commons become the central concept of the organization of society and the constitution’.^{Footnote 48}

But in his sketch of radical changes, Douzinas is less interested in the mechanics of the constituent process, and more in the strategic role of the demos in the square. Demos is not only a blueprint, an exemplar of the values that ought to be entrenched in the new constitution, but also the catalyst, the generator, and echo chamber of the political process leading to social transformation, that does not abandon the parliamentary route. That change comes as the result of a ‘dual track strategy’ where ‘social mobilization [in the square] and parliamentary presence’ of parties such as Syriza^{Footnote 49} ‘act in parallel and coordinated ways’. As a result, it is not at all inconceivable that radical constitutional change may come about through an ordinary amendment process, should a progressive political party capture enough votes in the parliament. The ‘dual track strategy’, in turn, must be read against the backdrop of a wider strategic assessment that ‘[d]espite the hopes of Left internationalism and liberal cosmopolitanism, effective politics still takes place at home’ and that ‘[t]he resistances reminded us that radical politics, faced with a hostile international environment, can win victories only in its own polis’.^{Footnote 50}

Embedding the discourse of constituent power in a conversation about strategy to achieve radical social and constitutional change raises the broader question of the role of political strategy in the field of constitutional theory. At this point, it would probably be hasty to claim that Douzinas’ work suggests that there must be a logical link between the abandonment of constitutional foundationalism (i.e. pouvoir constituée having constitutional authority because of what the constituant did before) and increasing attention to matters of political strategy in the sense that the former must be traded against the latter, as we craft alternatives to the ‘sovereign people’. But once unpacked, his intervention must remind constitutional theorists that conceptual innovation, or lack thereof, is less about distilling the true meaning of constituent power than about responding to the perception of the wider opportunity structure for radical change, in light of the overarching, tacit or explicit, political ideal. Constitutional theorists who privilege social struggles should be invited to explicate more fully their understanding of this opportunity structure, but cannot be criticized for their particular understanding of it. Equally, they cannot be criticized for their self-aware acceptance of potential ‘tragedies’ and ‘historic risks’ when they celebrate a radical democratic understanding of the constituent power of the people. However, they should be prodded to contemplate and to construct an alternative constitutional imaginary that minimizes these risks and increases the chances for enduring social emancipation. Doing so, however, requires keen attention not only to the difficulties associated with invoking the idea of the constituent power of the people, but also to something thus far shunned by those who theorize constituent power with social struggles in mind. It would require the reorientation of constitutional theory away from celebrating constituent power (popular or not) as a repository of emancipatory potential, and instead toward developing more specific blueprints for a constitutional order for the day after – together with institutional mechanisms and programmes for the maintenance of popular enthusiasm, critical for the long-term survival of such a socially emancipatory project.

V. Constituent power in the arena of national struggles

It is the ideal of inclusion – expanding the circle of those who share political power or economic wealth – that unites struggles for democratic and social emancipation, despite their differences. Struggles for national emancipation, by contrast, redraw and most often contract that circle. When the people is invoked as part of a nationalist ideal the point is not inclusion, but rather self-exclusion from the larger polity and often, other-exclusion from nationalists’ own, exclusionary project. The point of invoking constituent power of, say, ‘the people of Scotland’, was to deny the inclusion of the rest of the British people in how Scotland is governed.

Some may argue that this tension between the registers is false, that exclusionary nationalism is in opposition to a true understanding of constituent power. Using state-building in Eastern Europe as a foil, Preuss has argued that ethnic groups cannot be carriers of constituent power, because as a pre-political subject, they do not reflect a ‘universalist tendency’.^{Footnote 51} This alleged universalist inclusionary tendency is what helps to explain the reluctance of constitutional theory to problematize the inherited territorial container of an independent state. Constituent power, according to (one reading of) Sieyès, Schmitt, and most recently Loughlin, presupposes the existing territorial state^{Footnote 52} that prefigures a united collective agent, the people. The givenness of that frame, we might further induce, is what prevents the claim of inclusion (social and democratic) from being countered by claims of national, spatial, reconfiguration.

As a result, we may reject the idea of constituent power in the context of a nationalist struggle that seeks to upset the existing territorial frame. In doing so, we would find traditional theoretical support for that move in the work of a number of modern and contemporary constitutional theorists. But the tensions identified in Sieyès’s contradictory account of the nation, mentioned in section I, show that the desire to be united in a nation cannot be expunged from the thinking about constituent power. As a logically preceding question, it will continue to haunt the invocation of the constituent power of ‘the people of’ a particular territorial polity.

Before abandoning constituent power in the context of national struggles, there are two, partially successful ways to theoretically reconcile nationalist aspirations and the idea of constituent power. The first is advocated by Stephen Tierney in the context the potential independence of Scotland from the United Kingdom. Tierney transforms the idea of a unitary people as the bearer of a constituent power. He argues that the constitutional experiences of Scotland (but also of Quebec and Catalonia) which feature territorially concentrated, potentially self-governing societies, invite us to pluralize the concept of constituent power of the people. Tierney argues that these polities perceive themselves not as minorities composing the united people of the whole state, but rather as distinct polities, ‘forward-looking territorial demoi’, each possessing constituent power. But conjuring ‘the people’ of Scotland as the bearer of constituent power, for example, only makes sense because the territory of Scotland is not only ‘a recognized political and territorial entity’ within the UK, but also because ‘its territorial extent is not disputed’.^{Footnote 53}

On the other hand, while the legitimacy of the Catalan territory is not questioned, the spatial reach of ‘the people’ which should determine its destiny is questioned: should it be the Catalans only, or the entire people of Spain, the bearer of constituent power as stipulated in Article 2 of the Spanish constitution. Finally, in Canada, the talk of ‘the people’ is potentially even more inflaming. The James Bay Crees have visibly rejected the claims of the existence of ‘the people’ of Quebec, with its putative right to unilaterally change the political status of Quebec, and keep its territory intact.^{Footnote 54}

The Canadian case is demonstrative of a wider phenomenon, politically salient in the former Yugoslavia in the 1990s, and in Syria and Ukraine, today, where the contours of territorial fragmentation are not neat, but where ever smaller ‘peoples’ iterate their demands for the redrawing of boundaries in the name of ethno-nationalism, or differently conjured affective solidarity. Those who screen out this phenomenon from the canvas of ‘constituent power’ may do so as a matter of definitional fiat, but will, in the process, neglect the fact that the principle that emerges from demands for such territorial reconfiguration ironically leads us back to Sieyès, and his first desire-based account of the nation. ‘Isolated individuals seeking to unite’, of course, is not an endorsement for ethno-nationalism, but it may legitimately be read as an endorsement of a principle that a political desire to live together in a polity, unconstrained by political context, should be accommodated to the highest degree possible. To put it differently: the hidden principle in the successful iterations of constituent powers on the part of ever-smaller ‘peoples’ is a tacit principle of boundary-drawing. The ideal that the more people live in political communities with consociates with whom, and in a polity with which, they may identify the better. While this process does not lead to everyone living in a political community of their first choice, such a process would lead asymptotically to the ideal of unanimous creation of a nation, implicit in Sieyès argument.

Another practical way in which constitutional law may attempt to overcome the threat of fragmentation is not to multiply the number of unitary demoi within a multinational state such as in the UK, Canada or Spain but rather to change the character of the single unitary demos in such polities. The vocabulary of the Bolivian and Ecuadorian constitutions, for example, speaks of the ‘plurinational people’ of Bolivia and Ecuador.^{Footnote 55} In this way, national plurality is recognized and accommodated while the territorial container of the state is not put in question. As a conceptual innovation, this gestures towards accommodating desires towards autonomy, but it does not (and cannot) provide a ‘correct’ conceptual and normative answer as to why this ‘people’, plurinational or not, would exist in the first place.

In Bolivia, the Lindahlian ‘pulling off’ of the ‘plurinational people’ ultimately ‘worked’, but at the price of bringing the country dangerously close to the brink of civil war.^{Footnote 56} The push for a nationwide popular constitutional referendum in 2008 by Evo Morales and his Movement for Socialism-Political Instrument for the Sovereignty of the Peoples was countered by demands for a popular counter-referendum at a smaller scale, in the hydrocarbon rich region of Santa Cruz, the stronghold of the conservative autonomist movement. The counter-referendum yielded a majority in favour of a de facto secession of that region from Bolivia, and has brought the nationwide constitutional process to a standstill. Only the subsequent negotiations between Morales and the autonomist provincial governors alleviated the threat of civil war, and have enabled the constitution-making process to proceed, culminating in a national constitution approved in a referendum in the autumn of 2008.^{Footnote 57} The constituent power of the plurinational people of Bolivia ushered in a socially progressive constitution, but at a high risk of protracted political violence.

In 2014, in Bosnia and Herzegovina, socially-inspired uprisings in the Bosniak-dominated cities of Tuzla, Sarajevo and Bihać failed to take hold in the Bosnian-Serb dominated Republika Srpska, and the Croatian-majority cantons of Bosnia and Herzegovina. The protesters’ ‘Manifesto for a New Bosnia and Herzegovina’ conjoined demands for expropriating corrupt politicians and greater social justice, with the constitutional demand to abolish the constitutional power-sharing arrangements blamed for Bosnia’s rampant public spending. While some commentators hoped they were the beginnings of a pan-‘Bosnian spring’,^{Footnote 58} the people’s invocation in the protesters’ agenda failed to capture the imagination of Bosnian Serbs and Croats who were deeply suspicious of the protesters’ organizations’ desire to speak in the name of ‘our people’ – Sieyèsian constitutionally pre-defined ‘citizens of Bosnia and Herzegovina’.^{Footnote 59}

Both the Bolivian and Bosnian examples show the difficulties of invoking the will of the people at the intersection of social and national struggles. In Bolivia, the invocation of the inclusive, socially emancipatory people of Bolivia failed to prevent the invocation of a smaller-scale, conservative, ‘counter-people’ of Santa Cruz and nearly led to a civil war. Bosnia had its civil war, and its subsequent constitutional order entrenched an awkward power-sharing arrangement between its three, (for the most part) territorially-concentrated ‘constituent peoples’. An attempt to upset this bargain from within the register of social struggle failed to take hold because it failed to speak to the ongoing national commitments on the part of large segments of the Bosnian population. Finally, the upheaval in Ukraine reveals similar dangers involved in the invocation of ‘the people’ at the intersection of the ‘democratic’ and ‘national’ arenas of political struggle. Responding to popular pressure on the streets of Kiev, the Verkhovna Rada deposed president Yanukovych, and reinstated the 2004 Ukrainian constitution. It was not long before the shape of a counter-constituent power began to emerge. Responding to the developments in Kyiv, pro-Russian forces in the Eastern Ukraine, supported by Moscow, swiftly declared the independence of Crimea (in the name of its ‘people’), and have continued to struggle for their ‘popular’ self-determination in the territorial provisorium of Donetsk People’s Republic.^{Footnote 60}

These quick sketches should not be interpreted as my rejection of attempts that try either to achieve social emancipation in a multinational setting, or try to conjoin social and national registers of political struggle. They do show, however, that pursuing such a project under the aegis of ‘the people’ leads either to a highly-elevated risk of protracted political bloodshed, or simple failure of the social agenda to take hold. Constitutional theory in such contexts should distance itself from the vocabulary of peoplehood and constituent power and instead highlight the hard work of political negotiations and strategizing that is necessary to achieve a common platform between the goals of democratic, social and national emancipation.

VI. Location, location, location: Invoking the people in the core, and in the periphery

So far I have argued that constituent power of the people is deployed in three analytically separate arenas of political struggle: democratic, social and national. However, the picture has to be complicated further. These struggles ‘look’ different, depending or whether they are conducted at the ‘core’ or ‘periphery’ of the international political order. Portraying the people of Scotland unlike the ‘people of Crimea’ as an agent vested with constituent power, for example, makes sense not only because the identity of this ‘people’ is not questioned neither from within Scotland, nor the wider United Kingdom, but also because other, external actors will not intervene to shape the constitutional choices of this particular people. In other cases of state-formation at the periphery of international legal order, such as Iraq or Yugoslavia, external actors have been more decisively involved, first in nominating both the territorial scope of the polity, as well as in shaping the nascent order’s institutional options. Such external interference is most discernible in situations of escalated ethnic conflict where it is conducted in plain sight, often under the banner of ‘humanitarian interventions’, ‘international territorial administrations’ or ‘jus post-bellum’.

The blatant constituent involvement of external actors is occasionally registered by commentators from within other disciplines. International legal scholar Nehal Bhuta has, for example, claimed that ‘[t]he real constituent power behind the creation of the new Iraqi political system – and the sole arbiter of exceptions to it – was the United States’.^{Footnote 61} Even outside of contexts which feature violent external constitutional imposition, external powers present themselves as constituent. The imposition of harsh financial conditions by the ‘troika’, led Douzinas, for example, to call it ‘the ultimate lawmaker’^{Footnote 62} and ‘the bearer of (economic) sovereignty’ in Greece.^{Footnote 63}

In the next section I discuss whether such realistic re-articulations of constituent power are apposite, but these lateral remarks show, whether or not they were intended seriously, that the rhetorical persuasiveness of the concept changes depending on where in the global power grid it is invoked. For instance, one could more easily imagine a successful outcome of a social revolution in the name of ‘the people’ within the command centre of global capitalism, the United States, than at its periphery – Greece, Italy, or Portugal. Equally, one can more easily imagine a successful democratic revolution if there were external political support readily available to stabilize the nascent political regime, or if external actors were less prone to interfere and to support an authoritarian incumbent.

I hasten to add that the presence of an external constituent power, though inescapable in certain coordinates, ought not to be understood as an ontological condition of people-formation. We can imagine an act of self-constitution à la Sieyès, where symmetrical desires culminate in a new polity, without external constituent powers. Such an isolated, small political community can constitute itself without external involvement. Equally, we can imagine a political community, because it is short-lived, for example, as escaping external constitutive involvement. Finally, a voluntary a-territorial political community can, in principle, escape the problems of over-inclusion that often lead the external actors to step in and arbitrate its internal setup.

But if constitutional theory concerns itself with present-day, territorial political communities, if it is concerned with the phenomena that bring about their profound reconstitution such as external military interventions, economic impositions, prolonged constitutional presence in the form of ‘international territorial administrations’, then the possibility of external powers acting as (co-)constituent powers cannot, at least prima facie, be disregarded. This likewise applies to situations where external actors decide not to intervene in the formation of a nascent constitutional order. Given the power differentials between great powers and the often-weaker polities in the process of reconstitution, the omission of intervention on behalf of such powers should be seen as a form of constituent commission.

The geographical context of constituent power’s invocation in the context of international power disparities raises a question that has lurked behind this article’s analysis of constituent power’s invocation in other contexts. If constituent power serves different functions at different latitudes, if its rhetoric makes more sense in one place and less in another, and if its invocation creates a different set of benefits and risks depending on the context, how should constitutional theory respond to this challenge?

VII. Pragmatics of conceptual adaptation: reject, reframe, contextualize

Constitutional theory’s approach to the question of constituent power will, in part, depend on how constitutional theorists understand their field’s role. For example, Stephen Tierney has argued that constitutional theory should not stray too much from the inherited social imaginary of ordinary people.^{Footnote 64} In other words, if the people of a certain locality invoke the ‘will of the people’ as the horizon for their political self-understanding, a theorist should embrace that, and seek to articulate a vision of constituent power that fits that context. According to this view, conceptual adaptations in constitutional theory should continue to closely orbit around the gravity centre of the modern social imaginary, which gives pride of place to the idea of people’s sovereignty.^{Footnote 65} On the other hand, constitutional theorists may be more relaxed about the relationship between theory and grassroots’ political self-understanding. In that case, the margin for innovation is wider: constituent power may be abandoned altogether, or be divorced from the people. As part of this approach the people may be given a different name (‘demos in the square’), or assigned a different role from the one habitually expected among the general population (‘the people’ as the result of a clash of constituent powers). Finally, theorists may implicitly or explicitly refuse to confront how the concept of constituent power of the people operates in concrete arenas of political struggle, not because they believe that constitutional theory ought to have a larger margin for conceptual innovation, but because they see the nature of their intervention as primarily theoretical. The vocabulary of the constituent power of the people, on this account, is primarily a theoretical ‘puzzle’ to be solved, not a political tool to be recalibrated.

In contrast to these theoretical attitudes, constitutional theorists may elect to view their task not only as that of a theoretical innovation, or the systematization of the extant political vocabulary but also as a critical practice of clarifying the moral ideals, strategic assumptions and prudential anxieties that inform both the existing grassroots uses of peoplehood, as well as the second-order theoretical articulations of those uses. Informed, and in part inspired, by James Tully’s vision public philosophy as civic engagement, I propose such an approach to constitutional theory in this article.^{Footnote 66} In addition to conceptual clarification, this approach also seeks to intervene in grassroots struggles as a theoretically informed practice of political encouragement, discouragement and avenue opening. Its hope is to elucidate the anatomy of worries and hopes that animate the grassroots’ invocation of peoplehood, and which inform existing theoretical positions, without itself making definitive judgments on the wholesale justifiability of the vocabulary of constituent power of the people.

While remaining respectful of the existing grassroots vocabulary, however, this approach does not shirk from announcing its own ethical commitments, prudential anxieties, or the risks it is willing to take in advancing this theoretical stance. While their contours have already emerged from the preceding discussion of the three arenas of struggle, they will ultimately be sharpened against the background of alternative approaches to the constituent power of the people, which either propose its wholesale rejection, or its wholesale reframing.

VIII. Closing remarks: contextualizing constituent power, provincializing constitutional theory?

The final implication of the contextual approach to constituent power concerns its potential spatial reach and deeper political significance. It is legitimate to ask who are, and where, the constituencies that have not only a theoretical interest, but actually may care about the role of ‘the people’ in national, social and democratic emancipation given the current global distribution of political power. By rejecting both the generality and the abstractness, on the one hand, and the ultra-concrete specificity of theorizing constituent power, on the other (‘constituent power in country x’), the contextualizing move does not simply distance itself from the quasi-universal, essentially Western preoccupation with the idea of the constituent power of the people. It likewise invites all those who have been betrayed by this concept, either because of their position within the global power matrix, or their experiences with constituent power’s unsavoury ‘side effects,’ to think about a new constitutional theory which will exhibit these experiences with an aim to construct a modified, or new set of theoretical lenses primarily aimed for the movements and groups in the global peripheries and semi-peripheries, where the three registers of political struggle sometimes overlap, but most often stand in a tension-riven, ambiguous relationship with one another.

Such a larger project of a provincialized constitutional theory would intrinsically be fragile. The provisional spatial identification of global centres and peripheries is in many situations possible. (For example, the Balkans or Ukraine objectively are peripheries of the European Union.) In many cases, however, peripheries equally nest within centres, which themselves sprawl across different territories. Much will, as always, depend on the granularity and framing of one’s political vision. ‘To claim that this is peripheral to that’, as David Kennedy has rightly argued, ‘requires a suspension of awareness of life’s complexity, irrationality, and unpredictability’.^{Footnote 88}

Without doubt, contemporary constitutional theory cannot be accused of a lack of sensitivity to the complexity of global juridical phenomena. But its focus on regional constitutional integrations, interactions among de-territorialized, yet increasingly constitutionalized legal regimes, and on the allegedly emerging global constitutionalism, have, by and large,^{Footnote 89} distracted it from asserting the existence of the Global South, or the Third World, as the legitimate focus for a new constitutional imaginary. No wonder then that despite the increasing scholarly production of different adjectival constitutionalisms,^{Footnote 90} there has not been a move towards constitutional theory’s complementary equivalent to the TWAIL movement in international law.^{Footnote 91} In addition to other implications articulated above, contextualizing constituent power by identifying three dominant arenas of struggle and asserting that their interaction is a particular problem at the internal and external edges of Western liberal democratic constitutionalism, leaves the door ajar for such theoretical and political gesture.