Activating constituent power

9    Activating Constituent Power

Weak constitutionalism and democratic legitimacy not only demand a constitution that makes available a set of mechanisms that facilitate the exercise of constituent power. The most an established mechanism of constitutional change can achieve, it was suggested by Carl Schmitt, is the execution of the constituent power: the transformation of the will of the constituent subject into law. But in order for an exercise of constituent power to take place, something, some sort of political act(s), must occur that results in the initiation of constituent activity. Such activity would normally take the form of informal political practices like civil disobedience, street assemblies and mass protests. By engaging in those kinds of activities, groups who aim at the transformation of the constitutional regime attempt to create the climate necessary (e.g., convince other citizens that an important constitutional transformation is desirable) for an exercise of constituent power to take place and a new constitutional regime to be produced. Put differently, these groups would attempt to activate constituent power in the hope that the decision (now supported by a great majority of the population) in favour of a new constitutional regime is executed. As a way of concluding my analysis, this chapter will examine the distinction between the activation and the execution of constituent power, and briefly explore its meaning in the context of the recent upheavals in the Middle East, North Africa and Europe.

The Activation/Execution Distinction

A democratic of constituent power might be the result of at least two different types of events. The first is a situation in which a government attempts to use the ordinary process of constitutional reform to inaugurate a new constitutional regime. In such cases, depending on the regime in question, the judiciary might invalidate the relevant constitutional change and the government would have no choice but to abandon its plans or to ask the citizenry to convene an extraordinary constitution-making assembly. If a majority votes in favour of convening the extraordinary assembly, the constituent process begins. In this type of situation, the initiation of the exercise of constituent power is a result of the combination of an act of government and of a popular vote.

The second type of situation is different. It is about a citizenry that wishes to alter the constitutional regime without the open support, or even against the will, of government. In this second type of situation, it is usually a group of citizens that seeks to convince popular majorities of the need to adopt a new or radically transformed constitution. If these citizens are successful, it could be said that they were able to activate constituent power. Only after that happens, a constitution-making body, in any of its variants, would be convened and a new constitution produced (or, to put it slightly differently, the will of the constituent subject executed). It is on this type of situation that I will focus in this chapter.

In such a situation, the citizens of a democratically legitimate constitutional regime, one open to future exercises of constituent power, are likely to recur to the established participatory procedures of fundamental constitutional change. And in a regime that lacks that opening, citizens would put pressure on state officials until they agree to create a means for the exercise of constituent power. Both in the instance of a regime whose constitution allows citizens to convene a constituent assembly and in the case of a regime in which the power of constitutional reform is in the exclusive hands of ordinary government, one can make a distinction between the activation of constituent power and its execution. In both instances (provided that the movement in favour of fundamental constitutional changes comes from civil society and not from the state), the exercise of constituent power would likely be preceded by different public manifestations in favour of a new constitution.

The exercise of constituent power is activated through this kind of informal practice, and only when this happens would a mechanism of constitution-(re) making is likely to be convened (regardless of whether it is convened by the collection of signatures or by the legislature). Once that happens, the exercise of constituent power becomes more organised and regulated, in the sense of formally taking place through a special body that is elected and that operates according to certain rules. Such a body is called to execute the decision of the constituent power; that is, to produce fundamental constitutional transformations. Constituent power’s execution, of course, requires the constitution-making body to deliberate about the ways in which the popular mandate for fundamental constitutional change may be translated into constitutional law, and its proposals would be subject to popular ratification.

Carl Schmitt understood this distinction very well. It is true that he thought “there cannot be a regulated procedure, through which the activity of the [constituent power] would be bound”.1 Moreover, he maintained that the constituent power of the people is an “unmediated will”, one which exists prior to and above “every constitutional procedure”, and insisted that no constitutional form could “prescribe the form of its initiation”.2 He thus maintained that because the people “are not a stable, organised organ” (unlike, for example, a monarch), the decision to create a new constitutional regime could “only be made evident through the act itself and not through observation of a normatively regulated process”.3 For Schmitt, the natural form of the direct expression of a people’s will “is the assembled multitude’s declaration of their consent or disapproval, the acclamation”; the people, he said, can only “say yes or no to the fundamental questions of their political existence”.4 This unmediated and non-participatory character of the constituent power, an instance in which the citizenry is limited to make a ‘yes’ or ‘no’ decision as to whether to alter its form of political existence, sits uncomfortably with the conception of democracy and democratic legitimacy defended in this book.

But what Schmitt was describing in those passages was clearly not an exercise of constituent power, but the ways in which it might be activated. Schmitt was simply describing the types of political practices that he thought should be taken to reflect a popular will to exercise constituent power. This is why he wrote that although no constitution can confer constituent power or establish the process through which it is initiated, “[t]he further execution and formulation of a political decision reached by the people in unmediated form requires some organization, a procedure, for which the practice of modern democracy developed certain practices and customs”.5 The examples he considers regarding the procedures that can be used to execute the people’s political decisions are different types of extraordinary constitution-making bodies and special elections.6

If these organisations and procedures are not available, the constituent subject could remain in a state of powerlessness and disorganisation; it would be unable to transform its will into law. If Schmitt’s theory of constituent power is understood in light of this distinction, its practical applications become much clearer and it is freed from its more mysterious aspects. He was only noting the uncontroversial fact that no constitutional form can establish the ways in which a popular majority may express their will to create a new constitution. Such expressions would naturally take place in the political terrain through popular manifestations against the established constitutional order and in favour of the creation of a new one. For example, they could involve a popular movement demanding a fundamental constitutional change through different informal political practices. These proposed changes would normally be of a general character (such as the creation of a new constitution or the adoption of mechanisms to enforce social and economic rights), and their transformation into constitutional law would therefore be subject to intense deliberation within (and outside) the constitution-making body finally called to execute constituent power.

Nevertheless, Schmitt’s conception of the way in which an exercise of constituent power is initiated is problematic in at least one important respect. It is not accompanied by a deliberative conception of the public sphere, one in which proponents of a new constitutional order not only express their ‘will’ to create a new constitution through non-deliberative acts of acclamation, but in which they engage in informal deliberative practices designed to engage with other citizens and persuade them about the need for re-inaugurating the constitutional order.7 If one sees the moment of the decision (in which Schmitt is almost exclusively focused) as preceded by a set of informal participatory practices through which citizens deliberate about whether a fundamental constitutional change is necessary (and followed by the convening of a democratically elected constituent assembly that would deliberate about the specific constitutional changes to be adopted), then the distinction between the initiation and the execution of constituent power assumes a radical democratic potential. It allows us to conceive of the pre-constitution-making moment as a terrain of direct citizen participation and of popular challenges to the established constitutional regime. In this respect, a regime based on the theory of weak constitutionalism, a democratically legitimate constitutional regime, would not only be open to fundamental constitutional change through highly participatory procedures, but would also guarantee the rights that make the democratic initiation of constituent power possible, such as rights to assembly and expression.

Of Revolutions, Informal Assemblies, and Other Protests

The activation of constituent power, as we have seen, escapes any form of legal organisation. This is why Andreas Kalyvas is correct in stating that from the perspective of constituent power, “phenomena such as civil disobedience, irregular and informal movements, insurgencies and revolutionary upheavals retain all their dignity and significance even if they directly challenge the existing constitutional structure of power”.8 These are the types of political practices that would normally precede an exercise of constituent power, the activities that might give birth to a popular majority determined to create a new constitution. It is not difficult to identify recent instances of the initiation of constituent power in action. From the student demonstrations that led to the adoption of the Colombian Constitution of 1991 to the indigenous mobilisations that ended in the creation of the Bolivian Constitution of 2009, the twentieth and twenty-first centuries are full of examples. Nevertheless, the most recent (and perhaps most extreme) examples are those currently taking place in the Middle East and North Africa, where disorganised multitudes have challenged the existing juridical orders and demanded the establishment of new constitutions.

In a way, the massive character of these movements is consistent with Schmitt’s conception of the activation of constituent power: a multitude expressing its decision to establish a new order. This ‘decision’ is perhaps reflected in one of the main slogans of these demonstrations – Al-sha’b yurid isquat al-nizam (‘The people want the downfall of the regime!’).9 These popular protests have overthrown governments in places like Tunisia and Egypt, and at the time of writing this book they continue to exert pressure in countries like Bahrain, Syria, and Yemen. While having their origins in complex social, economic, and political issues, they involve demands for traditional liberal freedoms and important constitutional reforms.

This is why, in those cases in which they have succeeded, constitutional changes are taking place; and in those where they have not, protesters have clearly shown their intentions of inaugurating new constitutional orders.10