Constituent Power and Constituted Power: The Constitution as Promise and the Constitution as Effectiveness
The Constitution as promise refers to an absolute indeterminate (Caputo 1997,161162), a structural future, a future to come. The structure of this to- come, a venir, of this structural future or of this promise (I am talking about the Constitution) that in principle cannot come about is the very openendedness of the present that makes it impossible for the present to draw itself into a circle, to close in and gather around itself (Caputo 1997, 162).
The promise from this messianic perspective is the structure of this to-come which exposes the contingence and the deconstruction of the present. To that which Derrida calls the very structure of the experience and where experience means running up against the other, encountering something we could not anticipate, expect, fore-have or fore-see, something that knocks our socks off, that brings us up short and takes our breath away (Caputo 1997, 162).According to Derrida (1996, 82) there is no language without the performative dimension of the promise. Then, the language of constitutionalism as well as the language of democracy is in itself promise. To constitutionalism, it is the promise of the Constitution and its realization/effectiveness through the exercise of rights. To democracy, promise means the always-present possibility of reinventing rights.
That which strikes me most is this moment in which the Constitution makes promises, announces and compromises us (with such promises). This moment is very much related to democracy as something to come. The difficulty lies in the impossibility of the full realization of these promises in the present (constituent power and democracy) as far as it would mean the dissolution of their own conditions of possibility. However, this difficulty, contrary to what it seems, opens up an important space of discussion and action for contemporary constitutional theory and political theory such as the relation between constituent power and democracy and between them and constituted power (or the actual Constitution).
These relations must not be synthetized in a triumphant constitutionalism.The Constitution, as the constituent impulse, means promise(s) and then relates itself to democracy. According to Negri (2002, 11), nell’eta moderna i due concetti sono stati spesso coestensivi e comunque inseriti in un processo storico che, avvici- nandosi il XX secolo, sempre di piu li ha sovrapposti. Such promise, impulse or constituent force prevents the Constitution of being a fixed thing, like a trophy won in a battle by constitutionalism; of being just the source of constitutional norms/ rules.
Even considering constitutionalism as a restraint to constituent power and democracy, because of that, it imposes to itself a certain closure that will always be provisory. Then, the Constitution as promise and as a real (effective) thing - likewise constituent power, democracy and constitutionalism - experiences an on-going and unavoidable tension. According to Nimer Sultany (2012, 371) instead of attempting to solve or give a right answer to the difficulties that result from the relation between constitutionalism and democracy, between constituent power and constituted power one should recognize their irreconcilability and, then, one could have a better understanding of the role of law in society.
Democracy as openness, i.e., the democracy to-come it is not the future democracy. According to Derrida (1996, 83) there is an engagement with regard to democracy, which consists in recognizing the irreducibility of the promise when, in the messianic moment, it can come. Just like happens with constituent power, the promise of democracy is, at the same time, a suspension, that which is not decidable, as well as an impulse to the real, effective Constitution, to that which is decidable.
In its relation to time constituent power is its suspension as well as its acceleration. Constituent power opposes itself to constitutionalism considered as the limitation of power by the law.
Such restraint of power by the law and, by the same token, the control over government does not fit in the constituent impulse, which always happens in the present. Then, it is precisely the opposite, that is, the constituted thing, that which had already happened (in the past). Time in its present continuous constitutes a new time, which not only redeem the past but also changes it. Constitutionalism restrained to an idea of the Constitution as a fixed thing it is always a glance to the past, except if it retains the constituent impulse (the promise).A radical Constitutions is the one which does not conform itself to liberal tools of mutual negotiation among constituted powers. It dares to be more than that, that is, to be the subject and object of democratic politics. Basic rights are in the Constitution as far as it enables their permanent reinvention through political action. A radical Constitution does not simply synthetizes the tension between constituent power (democracy) and constituted powers (constitutionalism): it is precisely this, the tension. One should interpret Sieyes’s (1970, 180-181) statement that the Constitution, before anything else, presupposes a constituent power as the Constitution presupposes itself as constituent power (Agamben 1998,40-41).
The power of the Constitution, especially a radical Constitution comes from the fact that it imposes itself as the manifestation of constituent power and popular sovereignty binding both. Thus, in order to better face and explore the link between democracy and constitutionalism one has to first face and explore the link between sovereignty and constituent power and between these latter and constituted powers. My task is from now on to discuss the possibilities and difficulties of such relations, as well as the categories to better understand the notion of radical constitution.
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