The relationship between constituent power and political founding is one of the most intricate problems in contemporary political theory. Simply put, it is the question of the basis on which we can consider a given political and legal order to be legitimate. In its most general form, the paradox is that an existing constitutional order cannot justify its own origins, since the space of legality that it enacts only becomes possible after the fact of an extra-legal founding moment.
Although this question of the founding appears in the writings of Machiavelli, Hobbes, Locke, and Rousseau, it has especially resonated in the “age of democracy”. Since the French Revolution, it has been possible to argue that the constituent power lies in “the people”, who act as the foundation and guarantors of an instantiated legal order. Yet the theoretical paradox remains, now in the sense that the constitution is assumed to both create and be created by the people. Once again, we confront the difficult question: If the people are the creators of the constitution, how can they exist prior to this act of the political founding? Conversely, if the constitution “creates” the people, where does it come from and what makes it legitimate?
Recently, David Brooks touched on this issue in a way that fetishizes a vision of constitutionalism devoid of constituent power. Weighing in on the overhyped debate about the “crisis” of free speech on campuses, Brooks identifies two potential courses that today’s students could take:
“The first would be in revolutions–the French, Russian, Chinese and all the other ones that unleashed the passion of the mob in an effort to overthrow oppression–and the way they ALL wound up waist deep in blood. The second would be in constitutionalism. We dump on lawyers, but the law is beautiful, living proof that we can rise above tribalism and force–proof that the edifice of civilizations is a great gift, which our ancestors gave their lives for.” [1]
Besides the absurdity of comparing campus protests to epoch-making revolutions, Brooks contrasts constitutionalism and revolution in a way that assumes they are clearly distinct and unrelated phenomena, and so completely neglects the question of constituent power. A stark line is drawn between the violence and upheaval of revolution and the procedural politics that are only made possible by the existence of a constitutional order. In effect, Brooks conceals the sheer illegality of the American founding through his myth-making distinction between lawful, “civilized” governance and a revolutionary terror that inevitably consumes its own.
This is not a particularly novel point, in that Brooks is channeling an interpretation originally advanced by Hannah Arendt in On Revolution. [2] There Arendt contrasted the violence and mass politics of the French and Russian revolutions with their relative absence during the American revolutionary founding spanning 1776–88. Arendt suggested that whereas the French and the Russians were concerned with the “social question”–the matter of social suffering and equality–the Americans’ demands were more modest. They (i.e. free, propertied, white men) sought legal and political equality, but were not concerned with allegedly non-political demands such as the alleviation of hunger or the abolition of oppressive toil. These key differences were also reflected theoretically in the crucial question of sovereignty. For while the French and Russians wished to assert the people as the seat of sovereignty, the Americans were far more concerned with the institutional durability and longevity of the neo-Roman novus ordo seclorum they were bestowing upon posterity.
Setting aside the idiosyncrasies of this interpretation, Arendt pointedly observed that far from being opposites, revolution and constitutionalism are closely entwined. Contra what Brooks would have us think, Americans were not uniquely exempt from the paradox of the founding, either by virtue of the social conditions underlying their revolution or the restraint and moderation ostensibly shown by the founders. This is nowhere more clear than in the prominence of the debates about popular sovereignty that took place during that time.
As early as the late 1760s, American jurists were putting forward justifications for revolution that appealed to the authority of the people, not that of Parliament. [3] As Bernard Bailyn noted in his classic study of the political ideology of the Revolutionary era, it was the growing unviability of coexisting representations–domestic representation in state legislatures alongside supposed Parliamentary representation and sovereignty abroad–that provided additional justification for the colonists to claim a right to take up arms. [4] In 1777 the Pennsylvania radical Thomas Young wrote that the people of Vermont are “the supreme constituent power, and their immediate Representatives are the supreme delegate power; and as soon as the delegate power gets too far out of the hands of the constituent power, a tyranny is in some degree established”. [5] As such, the language of popular sovereignty was very much in the air by the time of the Revolution.
The problem of sovereignty and revolutionary constitutionalism reappeared to an even greater degree in 1787, during and immediately after the Constitutional Convention. Initially convened to revise the Articles of Confederation, the Federalists advanced what James Madison himself called a series of “informal and unauthorized propositions” premised on the notion that the people as a whole, and not the component states of the union, were the real basis of political authority. [6] As James Wilson, possibly the strongest advocate of constituent power in the federalist camp, argued,
“[i]n our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures; so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess, over our constitutions, control in act, as well as in right. The consequence is, that the people may change the constitutions whenever and however they please. This is a right, of which no positive institution can ever deprive them.” [7]
Of course, the Federalists’ genius lay in the fact that they effectively co-opted this language of popular sovereignty to be the basis of the new constitution, while at the same time curtailing the reappearance and exercise of this constituent power by institutional constraints and a very high threshold for amendment. This created what has been called a “ghostly body politic”–a situation where the invocation of “the people” acts as a rhetorical placeholder in an otherwise decidedly undemocratic constitutional order. [8]
Nevertheless, the presence of the language of popular sovereignty and the framers’ preoccupation with it is important, because it shows that this challenge of inaugurating and retroactively justifying a new political order was as much an issue for the American Revolution as it was for the French, Russian, and Chinese. More broadly, it illustrates how this question of constituent power and the ability to proclaim and inaugurate a new political order is at the heart of every appeal to constitutionalism. In Brooks’ case, the effect of the separation he draws between revolutions and constitutions is to depoliticize the latter, reducing them to a matter of received tradition and ancestor worship originating somewhere in the mythic past. Yet we know that constitutions are neither bestowed by wise legislators nor are simply the heritage of the past. They are made by people, and they capture and reflect in them the state of existing social forces, struggles, and distributions of power. This makes them fundamentally political documents that are subject to contestation and reinterpretation, and it means that revolution and the question of political authority cannot be fully eliminated from any discussion of constitutional rule.
[1] David Brooks, “Understanding Student Mobbists”, New York Times (8 March 2018), A27, available at https://www.nytimes.com/2018/03/08/opinion/student-mobs.html.
[2] Hannah Arendt, On Revolution (New York: Viking Press, 1963).
[3] Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1988).
[4] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press, 1992 [1967]).
[5] Quoted in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, trans. Rita and Robert Kimber (Lanham: Rowman and Littlefield, 2001 [1980]), 63.
[6] James Madison, “The Federalist Papers: No. 40”, available at http://avalon.law.yale.edu/18th_century/fed40.asp.
[7] James Wilson, “Speech to the Pennsylvania Convention, November 24, 1787” (original emphases), available at http://teachingamericanhistory.org/library/document/speech-to-the-pennsylvania-convention/.
[8] Joshua Miller, “The Ghostly Body Politic: The Federalist Papers and Popular Sovereignty”, 16 (1988) Political Theory 99.
Rafael Khachaturian recently completed a PhD in political science at Indiana University. He is currently Research Associate at the University of Pittsburgh, where he is affiliated with the Global Studies Center and the Center for Russian and East European Studies.
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