Narratives on public mobilization and participation

However, and in spite of stubborn reality showing itself over and over again, the crucial link between turbulent revolutions and the creation of new constitutional orders, modern and classical theories on constitution, constitutionalism, and constituent power insist on the promise of an inclusive founding process among free and equal individuals, both from the perspective of describing constituent experiences of the past and from the perspective of formulating prescriptive statements.

Constituent power, in this fashion, is seen as an act of collective and self­conscious mobilization able to redirect decisively a nation's governing principles and practices (Jacobsohn, 2014, p. 2). Constitutions of democracies are thought to supply democratic and self-contained standards of legitimacy that express people's fundamental and enduring values (Fox-Decent, 2016, p. 119).

Constraints imposed by a constitution would somehow be constraints agreed by the people itself (or rectius^ by the “electorate” acting as if it were the “people.” See Colon-Rios, 2020, p. 280). Consequently, considering that the constitution is the highest level of lawmaking and provides the ultimate rule of recognition for lawmaking processes, it requires the greatest possible level of legitimation in democratic theory (Ginsburg, Elkins, and Blount, 2009, p. 206). It is commonly assumed, thus, that the constituent process has to be itself democratic in a strong sense (Arato, 1995-1996, p. 191). Conceptualizations of constituent power in this fashion often coincide with conceptualizations of the people (Contiades and Fotiadou, 2017, p. 9): who is the bearer of the power to create constitutions has become in modern political theory a particular expression of a theory on the people's sovereignty and, therefore, on the reconstruction and imagination of what a people is (Oklopcic, 2018, p.

The idea on constituent power has, in fact, attempted to simplify the question of the people's sovereignty by limiting its analysis to the body of people from whom the constitutional authority emanates (Saunders, 2012, p. 3; Tushnet, 2013, pp. 1985-1986). Some of these traces of a relationship between a popular body and the formation of a constitutional framework might be inferred, for instance, from the very beginning of the United States Federal Constitution, which famously proclaims that “We the People.. do ordain and establish this Constitution,” and the same justification lies behind the reasoning of the United States Supreme Court in Marbury versus Madison when exposing the premise that:

the people have an original right to establish, for their future govern­ment, such principles as, in their opinion, shall most conduce to their own happiness.⁵

The concept of the constituent power has been from its origins associated with a constitutional theory on democracy (Bbckenfbrde, 1992a, p. 93; Kalyvas, 2008, p. 99; Roznai, 2017, p. 125; Schmitt, 1993, p. 238). As Antonio Negri stated, talking about the constituent power is talking about democracy (2002, p. 11). But what popular mobilization and participation is there, theoretically surrounding the foundation of each constitutional order? To what degree and under which procedural conditions should the action of the citizenry be expressed in order to affirm that constitutional decisions correspond to the people's will? Beyond the normative premise according to which constitutions should be the result of a democratic decision-making process in a way that all those subjected to the collective binding decisions of the State that is being created and regulated are entitled to determine the form and the competences of its political institutions. (Patberg, 2017, p. 51) the aforementioned questions fall into a well of vagueness, confusion, and contradiction. As we shall see, there has been a shift in modern constitutional design towards more inclusive and participatory mechanisms whereby the people can assume their constituent role (see Jacobsohn and Roznai, 2020, p.

In the context of transitions from authoritarian regimes to liberal ones, in another sense, contemporary discussions highlight that the more the public are involved in the constitution-making process (in terms of electing a constitution­making body, participating in its debates, or approving the final constitutional draft by referendum), the more the citizens will internalize constitutional norms to the extent of defending the constitution from any authoritarian abuse and, consequently, the more the stability of the system will be safeguarded (Mendez and Wheatley, 2013, p. 13; Weingast, 1997, p. 251). But real experiences of constitution-making show that constitutional discussion is displayed in closed fora, through an exchange provided by the interaction among elites, in which the citizenry, at most, is invited to agree or not by the means of a referendum with the whole package of decisions already adopted.

The people is the indisputable source of political legitimacy in modern constitutional thought but is also, as is well known by the German constitutional tradition, a source of fear (Mollers, 2007; Preuss, 1995). It is at least curious to confirm the extent to which the constitutional system among those in the Western tradition, that is most remarkable in its resistance of the present siege of populist trends, is precisely the regime of the German Basic Law, that was passed with a lack of popular participation both in 1949 and in the process towards German reunification in 1990. Maybe all the scholars concerned in the narratives of public involvement should ask themselves why the German constitutional system has done remarkably well for more than 70 years by marginalizing any form of popular direct participation (such as federal referenda) in the debate on the constitutional foundation and by refusing to contemplate a constituent assembly directly elected by the citizenry.