PART II
Chapter 5
THE authority of the constitution rests on it having been drafted in the name of “the people.” Through an exercise of their constitution-making power, the people engage in an act of collective self-government. This acknowledges the principle of democracy in constitutional thought. First formulated with precision during the American and French revolutions, the origins of this constituent power can be traced to seventeenth-century revisions to Bodin’s concept of sovereignty. Particularly influential was the work of Calvinist jurists who asserted that the state is founded on a double sovereignty: “personal” sovereignty (majestas personalis) might be held by the prince, but “real” sovereignty (majestas realis) lies with the people.1 This exposed the kernel of a distinction between the constituted power that vests in the office of government and the constituent power of the people that authorizes the establishment of the office of government.
These revisions are found in John Locke’s Second Treatise of Government. Locke explains that political society is an original compact entered into by a freely consenting people to establish a fixed system of government that could guarantee the protection of their property. If the government ever breaches the terms of this compact, they are placed in “a state of War with the People,” who have “a Right to resume their original Liberty, and, by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security.”2 Locke may not use the term “constituent power,” but it is the basis of his scheme of government. By recognizing that the people have the right to overthrow the regime if the terms of the governing trust are breached, he resolves the issue of resistance to authority that had always been ambiguous in the practices of medieval constitutionalism.3
In 1776, when the American colonists broke away from the British Crown, their Declaration of Independence closely followed the logic of Locke’s argument. The preamble states that “to secure these [unalienable] rights [of Life, Liberty and the pursuit of Happiness] Governments are instituted among men, deriving their just powers from the consent of the governed.” It continues that “whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”4 Through an exercise of constituent power, the American colonists asserted their right to break from the original compact with the British Crown and to establish a new type of government. The new regime was established in the federal Constitution of 1787, the world’s first modern constitution.
Sieyes and the French Revolution
The French Revolution soon followed. It began on 17 June 1789, when the meeting of the Third Estate declared itself to be the National Assembly. That momentous declaration had been drafted by Emmanuel-Joseph Sieyes, who explained its significance in his pamphlet What Is the Third Estate?5 Faced with the imminent bankruptcy of the state, the king had convened a meeting of the Estates-General as a grand advisory assembly. Claiming that France was experiencing a much deeper bankruptcy of the entire political order, Sieyes called instead for a constituent assembly that might address the case for fundamental constitutional reform. The ancien régime had lost its authority, he argued, and prime responsibility lay with the nobility. Far from being producers of the nation’s resources, they had become its most avaricious consumers. No longer an aristocracy charged with the task of governing, they had become a caste with privileges but no corresponding duties, in effect seceding from the nation and becoming its enemies.
Sieyes’s pamphlet proclaimed the Third Estate the nation itself. Reconstituting the meeting as the National Assembly, they demanded that sovereign authority be transferred from the king to that body, initiating both a political and a legal revolution. On 4 August 1789, the newly established National (Constituent) Assembly removed the privileges of nobles and clergy, thereby abolishing feudalism and establishing the principle of equality before the law. The assembly then established a committee to prepare a draft constitution, and on 26 August adopted the Declaration of the Rights of Man and the Citizen as its preamble. This proclaimed that “men are born and remain free and equal in rights” (Art. 1), that the aim of “political association is the preservation of the natural and imprescriptible rights of man” (Art. 2), that “sovereignty resides essentially in the nation” (Art. 3), that law is “the expression of the general will” (Art. 6), and that, without a defined separation of powers, a society “has no constitution at all” (Art. 16).
For Sieyes, the nation is created by a social contract that transforms an aggregate of individuals into a unified body politic with a common will. The nation, he explains, “exists prior to everything; it is the origin of everything. Its will is always legal. It is the law itself.” It follows that the nation, which “cannot alienate or prohibit its right to will,” is not bound by any prior constitution. As the bearer of constituent power, the nation determines the constitutional form of the state.6
Today it is accepted that constitutional law is fundamental law. The point Sieyes makes is that while the law of the constitution may take effect as fundamental law with respect to the institutions of government, the constitution itself is established by the higher authority of the nation. In this, Sieyes is following Rousseau, though he disagrees with him on the manner of forming a national will. Rousseau had claimed that sovereignty could not be represented because the moment a people give themselves representatives, it is no longer free.7 Sieyes, by contrast, maintains that a constitution can only be made by representatives. Rousseau had extolled the constitutions of the ancient republics, but in the modern state some political division of labor is necessary. The basic law, Sieyes explains, is not an idealized “general will” but rather a “common will” that, though formulated by a representative body, is as valid as that of the nation itself.
Lucia Rubinelli has argued that in Sieyes’s account, the power of the people is limited exclusively to authorizing the constitution, which means that, once adopted, “the people’s constituent power is present only indirectly.”8 She therefore claims that Sieyes devised the concept not as an expression of popular sovereignty but as a replacement for it.9 Concerned that sovereignty implied too much absolute power, which if transferred from the king to the people could lead to its despotic abuse, he posited the people’s constituent power as an extraordinary power, to be exercised only at certain founding moments.
Rubinelli’s claim is reinforced by Sieyes’s treatment of representation. Acknowledging the nation as the bearer of constituent power, he argues that since the nation cannot in reality assemble whenever conditions require, it is obliged to entrust this power to a representative body. This body of extraordinary representatives acts as “a surrogate for an assembly of that nation” and is distinguished from the ordinary representatives who are entrusted only with “that portion of the common will that is necessary for good social administration.” And yet these two groups could comprise the self-same individuals, albeit with distinct powers—one acting as an ordinary legislature whereas the other, exercising constituent power, deliberating “as would the nation itself” to establish the Constitution.10
Sieyes’s account was explicitly designed to appeal to the bourgeoisie, who anticipated becoming the governing class of an emerging commercial society. Since this commercial society is founded on productive work and the division of labor, we see why Sieyes would extend a similar division of labor to the political domain.11 His account of constituent power underpins the formation of a bourgeois expression of constitutional democracy.
Having excluded the nobility from the political nation, Sieyes goes on to exclude women, beggars, vagabonds, domestic servants, and anyone dependent on a master. The nation’s representatives must be limited to that class within the Third Estate “with the kind of ease that enables a man to be given a liberal education, to cultivate his reason, and to take an interest in public affairs.”12 Sieyes therefore argues first “that the Third Estate is the entire nation because its members do all the useful work of society and that the nobility is alien to the nation because of its idleness” and second that the legitimate representatives of the people are “those classes of the Third Estate whose wealth frees them from the daily press of labor and gives them sufficient leisure to concern themselves with public affairs.”13 His account legitimates the transfer of political power from the aristocracy to the bourgeoisie.
Constituent Power and Constitutionalism
Following these revolutionary movements of the late eighteenth century, many nation-states facing existential crises adopted a constitution as a sign of refounding. Such moments brought into clearer focus the hierarchical relationship between ordinary law, constitutional law, and constituent power. But once the new regime had stabilized its rule and the constitution established its authority, constituent power seemed destined to become a marginal, if not redundant, concept. Since the constitution makes a provision for change through the power of amendment, there is no reason to fall back on the potentially unruly notion that governmental authority depended on the will of the multitude.14
The concept of constituent power was retained, but its meaning gradually altered. Specifically, constitutional lawyers devised a doctrine of “derived constituent power,” a power that vested in special assemblies charged with the task of constitutional amendment or revision. As the French jurist Raymond Carré de Malberg explained, “Constituent power can be conceived as an essentially legal power only so long as it has its origin in an anterior statutory order and is exercised in accordance with that pre-existing order.”15 The effect was to absorb constituent power into constituted power, which meant that it could be reinterpreted as a principle of constitutionalism, reinforcing the permanence of the constitution itself.
In practice, however, the ambition to transform constituent power into a special category of constituted power was not so easily realized. The French experience was evidence of their serious difficulty in establishing a constitution that could bring a halt to the revolution.16 Contrary to the orthodox interpretation of constitutional lawyers, it became clear that constituent power was not available for purely liberal purposes.17 Ernst-Wolfgang Böckenförde maintained that constituent power “was not transferrable to the monarch, because his position of power … stood within an entirely different legitimatory context.”18 But other jurists have argued that constituent power is simply the political will that establishes a constitution, and it was in this sense that Napoleon could assert “I am the constituent power.”19 Consequently, in the period after 1815, French constitutional development was driven by “the clash between monarchy and popular sovereignty as two formative political principles,” and in this dispute “the monarch also laid claim to the constituent power.”20
The most significant reason why constituent power could not be absorbed into constitutionalism is because of ambiguities in Sieyes’s account. It is axiomatic that constituent power vests in “the nation,” but Sieyes used that term in two distinct senses. Its idealized meaning was “a body of associates living under a common law,” in which sense the nation is “the origin of everything.”21 But Sieyes also gave the term the more concrete meaning as a power located in the governing class. Constitutional scholars have since used the difference between abstract and concrete meanings—between norm and fact, formal and material—to advance conflicting accounts. This explains why his claim that constituent power could replace sovereignty in modern constitutional thought proved ill-founded. The meaning of constituent power remains contested because it is inextricably bound up with competing conceptions of sovereignty.
Constituent Power as Sovereign Power
In the early twentieth century, the controversy over constituent power that had shaped nineteenth-century French debates acquired wider import. The toppling of European monarchies and their replacement by constitutional democracies forced a return to first principles. Nowhere were constitutional debates more intense than in Germany. The German Revolution of 1918 transferred authority from the kaiser to the people, a shift symbolized by the declaration in Article I of the 1919 Constitution that “the power of rule (die Staatsgewalt) derives from the people.” But many issues concerning the legitimacy of the new constitutional order remained unresolved, for guidance on which jurists often returned to the French revolutionary debates.22
As an explanation of the meaning and status of constituent power, Carl Schmitt provides the most forthright answer: the constitution is established by an exercise of sovereign will, a specific political decision given jural form as constituent power. This was rejected by those such as Hans Kelsen who, asserting the autonomy of law, equates the state with the legal order, treats the state’s authority as a presupposition of legal thought, and eliminates constituent power as a category of legal thought.23 Schmitt, however, maintains that the attempt to sever legal norms from political facts distorts both legal knowledge and the nature of constitutional arrangements.
For Schmitt, the state is no abstract idea. It is the product of an actual historical process that yields the relative homogeneity of a people. As the concrete condition of political unity, the state precedes the written constitution. He argues that to counter competing interests within the state, a sovereign power able to impose its will in response to any threats to political unity is needed. In normal times, this sovereign remains hidden, and formal constitutional norms are sufficient to resolve disputes. But the sovereign is always necessary because issues that threaten unity can never be predicted. For Schmitt, the sovereign is the agent that identifies that threat and resolves it, in which situation the law—including constitutional law—recedes, but the state, the condition of political unity, remains.24 This is the sovereign presuming to exercise constituent power.
For Schmitt, then, constituent power is the political will that determines the institutional form of the state. It establishes the constitution but, contrary to Sieyes, it is a power that continues to uphold the authority of the constitution. The question of who bears constituent power is circumstantial. Constituent power is exercised in the name of the people, but since “the people” do so only through representatives, who then is best able to represent the people? In Weimar Germany, Schmitt argued that the president, directly elected by the people as the republican version of the monarch, holds the constituent power. Schmitt presents a legal analysis of presidential power, but his basic point is that the president is more than a mere creature of the constitution. The president is the agent who can maintain unity and safeguard the “substance” of the constitution.25
This concrete conception of constituent power not only expresses the political will that makes the formal constitution but also maintains the constitutional order of the state. Constituent power is commonly thought of as the will of the people in whose name the constitution is adopted. But this abstraction does not answer the question of who is authorized to speak in the name of the people. Schmitt’s answer is that “whoever decides on the exception is sovereign.” Sovereignty is simply “the highest, legally independent, underived power.”26 Collapsing the abstract into the concrete, it follows that constituent power is an expression of the “highest, legally independent” political will. It is the essential foundation of legal normativity, the product of “actual interests,” and it both establishes the constitution and maintains a sense of continuing unity. Making use of Sieyes’s analysis, Schmitt nonetheless goes far beyond the limits Sieyes imposed.
Sovereignty and Constituent Power
During the Weimar debates Heller had sided with Schmitt against Kelsen. Accepting the distinction between the formal constitution and the substantive constitution of the state, he nevertheless could not agree with Schmitt’s explanation for it. The normative scheme of the constitution must be distinguished from the political reality through which it acquires authority, but because law has a “power-forming quality” the constitution could not be the decision of a normless power. Whether the bearer of constituent power is the prince or the people, Heller argues that that power is not acquired existentially; it must be generated through the normative order of the state.27
Heller’s critique presents an alternative conception of constituent power that derives from Schmitt’s determined refusal to accept any abstract conception of sovereignty. He accepts Schmitt’s account of the role of the sovereign. But he cannot accept Schmitt’s rejection of the political worldview wherein we imagine ourselves as citizens with powers and rights, able to reflect on the terms by which the collective association—the state—is organized. In Heller’s view, no entity, whether the people or the prince, has “legally independent, underived power.” The standing of the sovereign remains unsettled, but sovereignty, the symbol of power and authority created in that worldview, is not.
If sovereignty represents the set of relations generated through the establishment of a political worldview, what is the role of constituent power? In Locke’s account, the concept conferred the right of rebellion: if the constituted authority breaches the terms of trust, power reverts to the people. But constituent power in this case means more than a de facto power relationship: it rests on the distinction between the right of the constituted authority to make law and the right by which this power to make law is conferred, the latter being the kind of political right Rousseau refers to in The Social Contract. Constituent power can then be more precisely called “constituent right,” what Heller called Rechtsgrundsätze. Constituent right expresses not so much the founding ideals of the constitution but rather the political dynamic through which those ideals strive to be realized.
Constituent power, then, expresses the way in which the normative scheme of the constitution changes in response to new material circumstances. It expresses a dialectic of political right (droit politique), a power-generating quality that constantly irritates the institutionalized form of constituted authority. Contrary to Schmitt’s materialist account, constituent power is not the same as the will of a multitude or of an entity that enforces unity. Reducing power to a particular will ignores the symbolic dimension of the political. Constituent power is generated when the multitude can be represented not just as the will of a majority but—in some senses at least—of everyone. But contrary to Kelsen’s normativist account, the concept cannot be entirely absorbed into the normative scheme of the constitution.28 This would simply eliminate the tension that gives the political worldview its open and provisional quality. This is the normativist fallacy, the realization of which would lead not to “the rule of law”—an impossible dream—but to the destruction of political freedom.
Constituent Power Defined
The concept of constituent power was formulated in the late eighteenth century as part of a movement to jettison the absolutist connotations of sovereignty. In its stead would be the power of representatives of the people to draft a constitution to define the legitimate powers and duties of governing institutions. It was a key component of a liberal progressive movement from traditional to modern in thought, from feudalism to capitalism in society, from aristocracy to bourgeoisie as the ruling power, and from traditional to legal-rational claims to authority. Its endpoint was the establishment of constitutional democracy.
But the constitution is not a self-enforcing document whose authority can simply be assumed, and in this important respect the issue of sovereignty persists. Because of this, it is unconvincing to claim that constituent power is invoked only at the enactment of the constitution and thereafter converts into a type of constituted power. Sieyes may have invoked constituent power to replace a notion of sovereignty, but the two concepts remain bound together.
Sovereignty has nevertheless been evolving in two different ways, the concrete and the abstract, each of which identifies constituent power as not just the power that makes the constitution but also that which, through constitutional development, maintains governmental authority. The way it has evolved reflects differing understandings of sovereignty that, in turn, yield different conceptions of law. The concrete, in which sovereignty is simply the power of a sovereign, presents law as voluntas (will). The abstract, in which sovereignty is a set of politicolegal relations, conceives law as ratio and specifically as ratio status, political reason.
From this account, we discern, first, that a constitution cannot be assumed to have eliminated sovereign power such that all politicolegal relations are refracted through its formal structures. That is, it cannot be assumed that the constitution expresses the way the state is constituted, this being the type of normativist method promoted by constitutionalism, which seeks to eliminate constituent power as a category of constitutional thought. We see, second, that the issue of sovereignty remains and that it evolves along two tracks. The concrete treats the sovereign as the constituent power that works to preserve the political unity of the state, occasionally by having to displace certain provisions of the constitution.29 The abstract treats sovereignty as an expression of a dialectic of constituent right, an evolving relation of norm (the constitution) and fact (the political reality) that operates to give the constitution its open and provisional quality.30