Introduction

My idea is that violence is the crucial factor that enables us both to examine the operation of designing a new constitutional order from a descriptive point of view and to offer a normative parameter in order to assess the constitutional product.

Since the real world offers a general connection between violence and the building of a constitutional order, I find it therefore secondary to explore in detail which conditions should be fulfilled in order to determine if a constitution is or is not a product of popular will. The vexing question of which democratic requirements should surround the creation of the constitutional framework that has disturbed the theory on constitutional democracies is likely to appear less relevant in light of the historical evidence. The mere presence of violence, I argue, cancels out any justification of constitutions grounded on the supposed democratic character of the process that created them. We are faced with the question posed by Simone Chambers (2004, p. 153): how do we know when a constitution really speaks for the people? I answer that never in contemporary experience or history has a constitution truly spoken for the People if violence is involved. In my opinion, thus, the analysis should be transferred from the issue of popular sovereignty to the issue of domination expressed by the struggles to occupy political power that produces countable deaths in the process.

Under my perspective coercion is present in the foundation ofboth authoritarian States and liberal democracies and, in spite of efforts dedicated to emphasizing the popular origins of constitutional regulations, a historical overview easily reveals to what extent high levels of conflict were present in the political movements that led to the creation of the fundamental laws of constitutional democracies.

The basic ideas here developed on the relationship between constitution­making processes and violence would bring me to a theory of the constitution that, in short, may be described as follows:

1. instead of being an action by which a people gives itself a set of rules that will regulate the political community in the future, a constitution is rather the outcome of violence.

2. it is so because a constitution, according to my vision, is a decision on the allocation of power and such a decision was the consequence of a conflict in which some groups defeated other groups by the worst possible means (wars, killings, ethnic cleansing, and economic spoliation).

3. following this pattern, a constitution may be considered as a device held by the groups that won the previous conflict to freeze the established structure of domination during the ordinary democratic times of the constituted power.

4. given the passing of a set of rules which are the legal translation of such domination there would not likely be a constitutional transformation without a radical change in such relations of domination.

The latter remark would help us to understand, on the one hand, the difference between the emergence of the constituent power, when the previous constellation of powers is contested, and a mere amendment to the system. A consideration such as the one just mentioned makes why violence is likely to occur when there is a constitutional transformation more comprehensible: because it attacks the core decision on power previously adopted. Violence, thus, would be in that fashion not only inherent in the constituent power but, from the analytical point of view, would help to identify when a constitutional transformation is provided. If “violence is the constituent power,” we only must ask ourselves about the moment in which violence erupts in order to recognize when the constituent power reappears.