A description on the origins
The discussion on constitutional founding often eludes the description of the specific historical conditions and the concrete relations of power that interacted during the approval of a constitution.
This silence on the previous set of coercions involved in the constitution-making process plays a role in conferring authority to the constitutional framework, especially within such constitutional contexts in which legitimacy has been erected on the ideas of popular sovereignty and the protection of fundamental rights.Rights and democratic procedures could be reasonably respected according to constitutional provisions in force, but they were usually absent to some extent in the definition of the political framework that gave birth to the basic rules. They are rather connected to the conflicts and domination structures that made some social groups prevalent upon others (see, for instance, Mann, 1986, pp. 416-449 or Tilly, 1975).
As might be inferred from the remarks already expressed, my analysis of constituent power shall be centred in discerning the historical avatars that lead to the foundation of the constitutional settlement. It will be, thus, eminently, a descriptive approach, a description not related to the norms and their function (as would be developed from a positivist analysis) but to the facts (on the constituent power as de facto residuary power of changing and replacing a constitution, see also Friedrich, 1968, p. 134 and p. 138).
I will not be, in principle, concerned with normative propositions on the constituent power. Such a statement might be understood with a double sense: on the one hand, I will not deal with the phenomenon of the constituent power as a set of rules since, as it has been pointed out, I am reluctant to display any approach to the question through legal categories as presupposing that actions of the constituent drafters are bound to other rules or might be described as bound by other rules.
On the other hand, I will not set out any normative theory on constituent power grounded in democratic theory. I will not offer, consequently, any ideal on how the constituent power ought to be expressed within a liberal and democratic framework. Such considerations do not mean that providing historical descriptions on constituent processes under what I call “the genealogical method” are not lacking consequences regarding the legitimacy of the constituent power and, specially, regarding the legitimacy of the liberal and democratic political orders developed within the limits traced by the action of the pouvoir constituant. The description of the circumstances involved in the founding might obviously call for a reinterpretation of the constitutional systems in force, as it has been well assumed by the “social contract theories” devoted to strengthening the justification of the present through the assessment of the past, but, generally, my normative approach (reduced, as we shall see, to only one proposition) will depart from assessments regarding the participation of citizenry, or the quality of such popular involvement.My approach, thus, might be qualified as empirical, but not in the sense displayed by some authors inspired by some political science techniques of analysis according to which the point would be to depict the conditions involved in constitutional-making processes in order to predict some stability of the constitutional outcome (Ginsburg, Blount, and Elkins, 2009, p. 219; see Ackerman critics on the mentioned analysis, 2019, pp. 39-40). My enquiry, rather, would be concerned, firstly, in observing the influence of violence as a fact given in history during most constitutional transformations (if not all of them) and, secondly, in associating specific expressions of violence historically detected to the exercise of the constituent power that produced some constitutional rules of current liberal democracies.
As has been pointed out, the normative blindness of the research shall have an exception.
An absolute normative exception as follows: the legitimacy of an episode of constitutional creation or transformation requires no violence understanding ’’violence” as a “subjective one” according to the definition provided by Zizek. The problem, thus, would be how to determine that there had not been such coercion and, in order to answer such a question, I shall propose a kind of categorical imperative: during the formation of the constitutional system, there shall not have been the loss of any human life. No victims at all of political violence. This is what I shall call the “No victims rule.”. Consequently, instead of centring the analysis on an infinite of democratic variables (participation, mobilization, deliberation...) I will focus on a normative horizon only marked by a simple, binary pattern: the presence or the lack of at least one human death.Before proceeding to sketch the main characteristics of the genealogical approach, I will refer to the two main competing theoretical frameworks which, in my view, have had the most profound impact in the explanation of the constituent supremacy and the possible agency that lies behind the creation of the highest norm. I will thus focus my concerns on elaborating a critique on both positivism, and social contract theories.