Contents

Acknowledgements

xi

Introduction: Violence and foundation 1

The origins of constitutional democracy 1

Narratives on public mobilization and participation 2

The legitimacy grounds ofconstitutional supremacy 5

The definition of violence 9

The revival of the discussion on constituent power (and some possible reasons for its previous abandonment) 10

Rethinking democratic theories on constitution-making under the shadow of violence 13

Hypothesis and empirical challenges 16

Notes 17

1 Methodological considerations 19

A description on the origins 19

Legal positivist theories 20

Social contract theories 24

Contractualism and history 28

Genealogical model 32

The ontology of violence 34 Counting the deaths 36 Constitutionalism and forgotten time 39

Notes 40

2 The concept of constituent power and the concept

of constitution 41

Introduction 41

Emmanuel Sieyes, Carl Schmitt, and the legal boundlessness of the pouvoir constituant 42

The paradoxes of democratic theory and founding 46

Deliberation in constitution-making processes as a strategy to diminish the influence of violence 48

Constituent power as a permanent reconstruction 53

Looking to the future in order to avoid the view of the past 55 Surmounting the debate on constituent power through post­national constitutionalism? 59

Provisional conclusions 62

Violence and the different phases ofconstitutional formation 62 Violence and the formation of the political community 64 Violence during the constitution-making 68

Violence and the enforcing of the constitutional regime 70

The constitution as a legal translation of a structure

of power 71

Elite coercion as a prime mover of the constituent experience 76 Constitutional transformation vis-a-vis constitutional amendment 81

Constitutional transformation and the rule of law 84

The “no victims rule” 85

Notes 87

3 Violence and constituent power in the creation of the

American Republic 90

The American experience and the theory of the constitution 90 Precedents: the Mayflower Compact and the colonization 93 The “dramatic circumstances” and the origins of the U.S. constitutional order 95

Slaves 95

Indigenous peoples 98

Popular classes 100

Wars of State-building and constitution-making 102

Internal revolution 106

The road to the illegal founding 111

Framing the U.S.

The ratification of the Federal Constitution 119

The bill of rights 123

Constituent power and beyond: constitutional transformations 125

Notes 130

4 Constituent power without “We the People”: The

foundation of the Federal Republic of Germany 134

Introduction 134

Die Stunde Null 135

The disintegration of the German nation 138

A nation of refugees 139

The two Germanies 141

Fragmenting the nation through federalism 142

Western Allied tutelage in the constitutional framing 145 Involvement of elites in the shaping of the German constitutional framework 149

Conferring democratic legitimacy to the Basic Law 152 The People and the constituent power in Germany's reunification 155

The interactions between the German Federal Republic and the European Union constitutional models: liberalism, rule of law, cosmopolitanism 159

Constitutional identity or the return of the German nation 161 The voice of the German People 165

Notes 167

5 “New constitutionalism” and the emergence of constituent

power in some recent experiences 170

Constitution-making in modernity 170

European Union: Treaty Establishing a Constitution for Europe (2001-2005) 175

States' Constitutions within Federations and constitutional transformations 177

Iceland: a never-ending constituent-making process 178

Republic of Ireland: from comprehensive constitutional revision to punctual change 183

Violence and constitutional change in the hands of temporary majorities: Venezuela, Bolivia, and Ecuador 189

Republic of Chile: from sober deliberation to attempted revolution 192

Constitutional transformation and authoritarian constitutionalism in Hungary 196

Secessionism in Catalonia 200

Brexit or the Mulier Sacer 204

Paradoxes of the new constitutionalism in higher lawmaking 210

Notes 212

Conclusions

Bibliography

Index