Abstract

A radical Constitution is at the same time promise and effectiveness. It retains the constituent impulse, which reappears each time it is enforced. As such, the Constitution is a possible mediation to political action.

The tension between constituent power and constituted powers or between potentiality and actuality plays a fundamental role for contemporary constitutionalism and democracy. Then, constitutionalism is that which exhibits and reaffirms - instead of annihilating- constituent power, as far as it ensures and renews democratic politics and its commitments. Past events such as protests that happened in Egypt, Turkey, Greece, Portugal, Spain, United States, Brazil, etc. must be understood not as pure political action but as grounded either in the achievements of democracy or in the achievements of constitutionalism, i.e., there is a right to protest (even against the Constitution). A radical Constitution is that which retains the radical impulse of constituent power in the constituted community aiming at a provisory yet necessary agreement between promise and effectiveness; between people’s absolute power and its restraints; between political action and the law; between democracy and constitutionalism. Constitution as promise is what makes one act politically, i.e., it is no longer a simple radical impulse but the realization of something, like the enforcement of rights by means of the Constitution. Then, promise soon becomes effectiveness. The recent events I mentioned above are noteworthy as far as they are not an exception to the possibilities of a constitutional democracy but exactly what it is about: potentiality and actuality; promise and effectiveness; stabilization and crisis, not against the Constitution but because of the radicalization of it.

V.K. de Chueiri (*)

Faculdade de Direito, Universidade Federal do Parana, Praga Santos Andrade, 50, Curitiba,

PR 80020-300, Brazil

e-mail: vkchueiri@gmail.com

T. Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,

Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_11

11.1

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Source: Bustamante Thomas, Fernandes Bernardo. Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism. Springer International Publishing,2016. — 327 p.. 2016

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