Elite coercion as a prime mover of the constituent experience

Throughout this work so far, I have alluded many times to the concept of elite. I’m not the only one. Also, the authors demanding democratic procedures in creating and re-creating fundamental laws take account of the elites’ predominance in constitution-making.

so many effective modern constitutions have been enacted as a result of a process of elite negotiation among important interests in a given society.

Certainly, politics is an elite-driven affair (Albertus and Menaldo, 2018, p. 28). However, while there is a long tradition that sees the creation of a constitution as a (particular kind) of elite pact (Mendez and Wheatley, 2013, p. 13), an opposite branch of legal and political thought (that would include authors from Carl Schmitt to Colon-Rios) envisages scenarios in which political agents would not be able to constrain popular fundamental decisions. If the involvement of the elites has been a recurrent issue invoked by the critics of day-to-day democratic procedures, it is still more acute in dealing with the creation of a constitutional framework.

Even though at the normative level, public involvement during the constitution-making had to be more intense, what the historical descriptions show is its character as an apotheosis of imposition of power by the elite. Defenders of constitutions as the product of an elite agreement may be closer to real historical experiences. However, to be more precise, the constituent movement would be the confirmation of a particular elite domination upon other groups rather than an agreement among different elites. When the elites bargaining model in a federal context is mentioned (Riker, 1964), understood as the bargaining among territorial elites that agree to establish a federal centre of government (such as

Constituent power and the constitution 77 happened with the creation of the United States), what happens, rather than a negotiation among the different groups, is the discovering by such territorial leaders of the mutual belonging to the same social and economic stratum and, thus, their commitment to the same interests of domination.

As I pointed out, we may trace the act of creating a constitution as the legal translation that certificates a power already gained by a particular elite. From that observation I may elucidate my particular concept of elite following the path traced by authors such as Wright Mills (2000) and Mosca (1939): the elite is a social group that has reached power through force. Notice that I use a concept of elite attached to a theory of the constitution and, thus, such a concept may be considered a special category of the notion invoked by sociologists or political scientists in countless studies on the issue. Given a considerable consensus in the social sciences for defining elites as persons with power to influence strategic deci­sions in a society on a regular basis (see, for instance, Hoffmann-Lange, 1991, p. 81), my approach would be consequently centred in the idea of the elite involve­ment in the procedure to create a constitution. “Elites,” in my sense, would be therefore able to display their influence in decisively adopting strategic decisions on creating the fundamental rules that would regulate the political community in the future. My thesis would be that the privileged position held by the agents in the decision-making process that leads to the adoption of a constitution would be conferred by the violence that had marked the events that occurred before the adoption of the legal frame.¹⁰ Under the perspective here described, constitu­tions might be regarded as a ceasefire agreement or a peace treaty between social forces struggling for power in which the triumphant forces lay out their principles of how society should be ordered (see also Preuss, 2006-2007, pp. 469-470). Developments during the creation of constitutional democracies would not, despite the historical distance, differ excessively from those dynamics concerning the elites and the appearance of the State or large empires from antiquity, that in the economic analysis have contributed to explain the entrenchment of inequal­ity among individuals (Scheidel, 2017, pp.

Such elites may exercise the power within a constitutional democracy as well once the constitution is established through democratic means. The elite may, certainly, be elected. But the point would precisely be that a liberal democratic constitution has been passed in order to ensure that the elite which previously has gained the power through the force maintains its power through ordinary elections. In other words, the constitution is the space conceived to confer democratic legitimacy to groups that have used violence to reach political hegemony. As I have remarked, the latter explains why the particular drafting of a constitution, as also Carl Schmitt thought, may perfectly be an act of ordinary politics because the existential decision on the allocation of power benefiting a social group has

already been taken (that is precisely what defines the concept of constitution in my vision and, somehow in Schmitt's when referring to the idea of the absolute concept of constitution).

Constitutionalism, on the other hand, would be nothing more than the general trend analyzed by some schools of sociology, political science, and political philosophy according to which elites develop instruments to escape from popular control and to ensure the domination upon wide strata of the society (see, for instance, Miliband, 1983, p. 238). Constitutionalism would not express a concern for the common interest but the only concern by which elites' behaviour is guided: to preserve their privileged status for as long as possible (Hoffmann-Lange, 1991, p. 96). Generally, such perceptions are not far from the approaches developed by Critical Legal Studies in their struggle to show that legal and political institutions adopt rules which serve the dominant interests of groups in society (see Gordon and Nelson, 1988, p.

Such trends match with the ideas more recently outlined by Michael Albertus and Victor Menaldo (2018, p. 13) when they describe the action of constitution­makers more focused on preserving the elites' self-interest rather than on the common welfare of future generations. Albertus and Menaldo's analysis is centred on describing to what extent the elites coming from an authoritarian regime use constitution-making processes developed during the transition to a democratic regime as mechanisms to protect their rights and vital interests in the new political framework (2018, p. 14). However, leaving aside the question on whether such “transitions” from dictatorships to liberal democratic regimes represent “constitutional transformations” or not, the point here is that both in the case of an authoritarian elite that seeks to maintain its privileges in a democratic regime, and in the case of a new elite that has emerged in the midst of a revolution, the particular social group that controls the constituent process won the conflict through violence.

Ackerman's recent contribution on the paths in which constitutionalism develops (Ackerman, 2019, pp. 3-7) also refers to the question of the elites in two of the three types of constitutional establishments that he distinguishes. According to him, constitutionalism would be the outcome of three kinds of experiences: the first one would be that of “revolutionary constitutionalism,” in which revolutionary insurgents manage to finish with the constitutional order of the old regime and replace it with a new “constitutional beginning;” the second type, the so-called insider constitutionalism, would rely on an order built by pragmatic insiders who, in facing up to popular movements for change, reach an agreement with moderate outsiders in order to reinvigorate the establishment's claims to legitimate authority. And finally, the third scenario would be defined as an elite construction in which previously existing elites create a new formal constitution given the crises of the old order or a power vacuum.

Considering Ackerman's description, my claim would be that the analysis of the elites as a prime mover of constitutional creation would not be only centred on the

Constituent power and the constitution 79 “insider constitutionalism model” or in the “elite construction model” but in the “revolutionary constitutionalism” as well. In fact, revolutionary constitutionalism is the scenario in which the elite as a constituent agent is better appreciated, since the destruction of the previous order and the replacement with a new one can be described as the destruction of an elite and its replacement by another or, in my terminology, the obliteration by violent means of a given allocation of power by outsiders which establish a new allocation of power reflected in a new constitution.

As we shall see, the ’’constitutional transformation” would only take place in that type of revolutionary constitutionalism which would entail the replacement of the older elite with the new one. Once the power of the new elite has been consolidated through wars and all sorts of attacks derived from political coups, it would be involved in the task of making a constitution able to perpetuate them in power.

Under the interpretation that I suggest of a constitution as the legal translation of the violent taking of power exercised by the elites (and against Ackerman’s opinion), the passing of the 13th and 14th Amendments to the U.S. Constitution, for instance, though some historical nuances shall be added to the following statements, would be a mere execution of a constitutional transformation previously adopted. The real constitutional move in that case was the consolidation of the elites in the North that led and won the war against the Southern elites. Such a thought might lead to another more turbulent sequence of statements: the war in which a social group has smashed other groups is the constitution.

The history of constitutionalism, as is the case with all political history, is one of different groups fighting to obtain power. Constitutional revolutions at the end of the eighteenth century, for instance, were not done with the intention of establishing human rights or the rule of law but to foster the substitution of one ruling class for another. Human rights, rule of law, and democracy emerged as incidental outcomes of what was a raw battle for power. The substance of those political processes was not to establish limits to State action, but to invest the elite with a monopoly on the legitimate use of force. In a similar way, social function comes under a democratic regime dominated by competing powers among the elites through the electoral process, as Schumpeter (2010, p. 250) brilliantly remarked. The fight for power among different classes and the appearance of tenets traditionally related to constitutionalism defined the English civil wars and revolutions of the seventeenth century, culminating with the Glorious Revolution in 1688 and the subsequent constitutional developments expressed in the 1689 Bill of Rights, or in the 1701 Act of Settlement (see on this point Hayek, 1999, p. 162). The establishment of these institutions was not based in any consensus nor in any approval by the general population (or at least by a part of it through its representatives) but, rather, was the result of intense conflict as different groups competed for power, contesting the authority of others by violent means and attempting to structure institutions in their own favour (see Acemoglu and Robinson, 2012, p. 102).

The same observations might be applied to the French Revolution in 1789 and the 1791 Constitution. The French Revolution, marked by violent events, was instigated by a class which already dominated some parts of the economy even though their achievements had been frustrated by the ancient regime (Preuss, 1995, p. 10). Their appearance as a political agent and their revolutionary struggle, at least until 1792, was mainly aimed at creating a constitutional framework (the 1791 French Constitution) that would certify their interests grounded in property rights, a free market economy, and political recognition through liberal rights. In other words, power had already been gained by the class represented in the Third Estate, including the assignment of property rights, which needed a violent revolution to be consolidated and a constituent process to be legalized. The French Constitution drafted in 1793 demonstrated the emergence of the popular masses through the rule of the Jacobins against both the bourgeois and the nobility [as well as the use of violence in the experience of the founding, see Duong, 2017)]. These regimes were not concerned per se with democratization or ensuring spaces of individual freedom: the constitutional documents derived from those events provided constitutional safeguards or devices of political participation as long as they benefited the new rulers over the old, displaced cadres. At any rate, as is well known, the emergency situation which the Jacobin rule had to face allowed Robespierre to suspend the popularly ratified Constitution of 1793 (Arato, 2020, p. 96) and thus liberated his government from the constitutional constraints that the Jacobins had themselves designed with some popular support.

Following Schumpeter’s statements, through which he defined democracy as a competitive struggle among the elites to gain votes (2010, p. 241), I might readapt his vision to the foundations of the constitutional democracy themselves. Thus, under my analysis, the questions posed would be centred in determining where did such elites involved in the ordinary democratic process come from, and how much the formation of the procedural conditions of such democracy designed by constitutional rules was a matter of their action. The basic structure of the power system (such as for instance, the attribution of property rights under a liberal and free market constitutional State) was already determined before the decision on the constitutional rules and, in fact, defined the agents endowed with the capacity of participating in the constituent process and the main features of the constitutional regime alike.

The description of the concrete elite involved in each model in State-building and the drafting of the constitution would require an empirical, historical, and qualitative analysis beyond the scope of this book. My aim would be satisfied enough if I were able to offer some reasonable suggestions in order to boost further research that might define the specific groups that in each system have gained power through violence and have used constitutionalism to translate their supremacy into legal language. I have only explained the participation of the elites in the constitution-making in the cases of the United States and the Federal Republic of Germany, but even in such constitutionally solid traditional models a detailed genealogical reconstruction is, and will be, pending. Still, if it is difficult to link a concrete act of violence to a constitutional creation

Constituent power and the constitution 81 or to a constitutional transformation, a more ambitious quantitative analysis would be required to make statements about the authorship of such violence and to conclude that coercions have been instigated by single individuals within the frame of a group. In fact, establishing who are the elite, may be almost as vague as fixing what the people or the nation is. We may turn to sociological approaches and struggling to identify the origins of the people or the nation through social and ethnic cleavages that have been fighting each other until the point at which one of the groups have gained hegemony over others. But the definition of the elite would be, as well as the definition of the people, closer to a matter of narrative than to a question of “objective” reality. Saying that violence perpetrated by specific groups allowed them to occupy power may be more detailed than saying that a people has given itself a constitution, but it is also related to a representation in an intersubjective discourse. In my structure the deed of the political killing would be the closest to the “objective reality,” then, in a superior level of abstraction, we would have the establishment of links between a previously defined elite and such political violence while we would find a higher level of an intersubjective story creation (and, thus, far from the empirical ground) the constitution-making through citizenry participation, deliberation, and consent.

To summarize my proposal, I am still far from providing the historical reconstruction that would enable me to determine of whom I speak when I use the term “elite” and the nexus of causality that would bring me from the social group to power through the use of violence and from such a movement to the drafting of a constitution. However, I find important the mere suggestion of these associations in order to explain the phenomenon of constituent power, opening a path through the confusing jungle in which facts and norms appear mixed.