Brief Excursus: Political Action and Constitution

There are some scholars such as Paulo Arantes^[286] for whom political initiative cannot discard mediations without being demonized. I do agree with him that every politi­cal action without mediation is almost immediately identified with violence, excess, abuse and, then, with the demon.

Pushing Paulo Arantes’ argument a little further, I would say that a political action without mediation retains an interesting radicalness, yet not necessarily insurrectional, in the sense he advocates for. For this reason, I would like to explore the idea (and the possibility) of a radical Constitution and therefore of a possible mediation for political action, by means of the Constitution: not exactly the basic norm, nor its text but also them, as far as the Constitution does not let itself to be reduced to the constituted power retaining in it the constituent power. As such, the Constitution radically constitutes us as a political community.

It is noteworthy that in Paulo Arantes’s book Extinqdo (2007, 153-154), in the chapter on Estado de sitio, he refers to this institution (the State of Siege) as a excep­tional legal regime to which a political community is subjected because of a threat to public order and during which extraordinary powers are given to governmental authorities, at the same time public liberties and constitutional warranties are sus­pended. That is, the State of Siege is a situation that takes exception on some basic rights and warrantees, in situations of great political, social and institutional tension but in a constitutional context. It seems to me that despite the author critique about the mediation of the Constitution, at the end he recognizes it, even to stress the para­dox in this creature of modern constitutionalism (Arantes 2007, 155): Exceptional measures authorized by public force must be determined by the law (...).

The point I first want to make is the link between Constitution and constituent power which is either immanent to a certain notion of Constitution, the radical Constitution or contingent (eventual yet necessary and inevitable). This implies in the following premise: one cannot reduce the constituent moment (promise) and the Constitution (the real thing) to the terms of a dual logic (another world and this world). This premise deconstructs the naive faith (easily found in Constitutional Law Books) that the Constitution is nothing but a text; or that its norms/rules appease political tensions; finally, that it is enough to constitutionalize political, social, economic, environmental, labor, etc. relations of/in a given society and they will happen in the way prescribed by the Constitution and, therefore, we will live in a community without tensions as if it were paradise.

There is an agonistic sense in politics, which have to be explored in the Constitution. Paraphrasing Chantal Mouffe (2000, p. 99) we need a Constitution able to capture the agonistic nature of the political, i.e., a radical Constitution.

Zizek says (2013, 102), in a essay called Troubles in Paradise, in the book, Cidades Rebeldes: troubles in Hell seem to be understandable but why are there troubles in Paradise, in prosperous countries or in countries that, at least, are in a period of fast development such as Turkey, Sweden or Brazil?

Paraphrasing the author, I would say that troubles in States of exception concern­ing restriction of rights or suspension of rights are understandable (the last Brazilian dictatorship after 1964 Coup d’Etat) however, I inquire why are there troubles of these sort in democratic constitutional States such as Brazil after 1988 Constitution? Raquel Rolnik (2013, 08) talks about the right to have rights, which nourished many contests in the 1970s and the 1980s and has inspired new Constitutions and the emergence of new actors in political scenario. Against the common understanding that in States of exception basic liberties are restricted, there is the difficulty of understanding why in the existence of basic liberties and basic rights one might be in a exceptional State?

Maybe the most problematic question is the following: why are there troubles in constitutional democracies? This essay has in this question its leitmotiv or, accord­ing to Nimer Sultany (2012, 374), the centrality of the tension between constitution­alism and democracy for political theory and constitutional theory derives from its implications for larger discussions concerning the justification of political regimes.

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