Radical Constitution: A Possibility?

A radical Constitution must retain the potentiality of constituent power yet such potentiality becomes actuality by means of the enforcement of rights. In other words, the potentiality of the Constitution (as a radical one) appears when it is enforced, when it gives arguments for decisions that grant rights and when this task is done by the people; it is an individual and collective endeavor of the people who do it by means of political action.

As I have already said, in the past 4 years a sequence of events in different places around the world such as the Arabic Spring, protests in Turkey, Spain, Portugal and Greece, the Occupy movement in Wall Street, New York, June protests in Brazil in 2013, among others, have suggested that political action does not have to be mediated by anything. They are radical in this very sense of not being mediated by anything: no labor unions, no political parties, no traditional mass organizations or any other institution: it is just lots of young people mobilized by social networks acting in the street.

It is as if nowadays none of these young people had the power to decide the most important issues that concern their life in society or rather that concerns their fate. Abandoned by the government they are very skeptical about institutional designs and solutions.

Then, they claim to take their fate on their own hands without mediation. They want to act and they act directly and without a general goal yet with a common feel­ing of dissatisfaction, which put individual demands together.

Therefore, the argument I am developing in this paper is in the opposite way of that of a political action that renounces the mediation of the Constitution.

One has to consider that not everybody shares the same interpretation and judg­ment about the Constitution. It seems somehow contradictory that in democratic constitutional States (some of them more or less democratic and more or less con­stitutional) events such as the ones that happened in Turkey, Egypt, Greece, Spain, Portugal, Brazil and United States were considered as if they were a state of excep­tion. At this point my argument takes a step back and goes ahead. It goes ahead in agreeing with Benjamin that the state of exception became paradigm of government or, according to Paulo Arantes, it is the state of exception as the expression of rela­tions between center and periphery in the new global imperial order that makes possible to act politically in the street. It takes a step back in understanding that this state of exception in its pure form as a denunciation or a diagnosis do not activate its own revolutionary dispositive.

Zizek (2013, 101-108) says that problems in the hell seem to be understandable yet problems in paradise should not happen. Do these facts affect the very sense of democracy and constitutionalism? Of course they do, but how do they affect? Or, is there a constitutional democracy without the possibility to put into question its own basis? At this point I recall Michelman’s (1999, 06-07) assertion that by the prin­ciple of democracy, the people of a country ought to decide for themselves all of politically decidable matters about which they have good moral and material rea­son to care.

The tricky thing is first to define what should be politically decidable by the people (as it is a deliberation and a decision to be taken by the people themselves) and second, how should be? I also recall Post and Siegel’s (2007, 375) assertion that (w)hen citizens speak about their most passionately held commitments in the lan­guage of a shared constitutional tradition, they invigorate that tradition.

In spite of the institutional difficulty that the idea of self-government poses to democratic politics, as far as not everybody is able to make the Laws, it (the idea of self-government) can strengthen individual responsibility and, in my opinion, it reveals itself by means of political action. For Post and Siegel (2007, 375) citizens should not acquiesce in judicial decisions that speak in a desinterested voice of law. Such nonacquiescence means to act politically yet without taking into account the constitutional order and the negotiation it allows between the rule of law and self-governance.

A radical Constitution is that which is where popular political action is and it is not dissociated from this. On the contrary, a radical constitution enables popular political action so that democracy and constitutionalism can be renovated rein­vented. Then, Constitution is, at the same time, potentiality and actuality, promise and effectiveness, stabilization and crisis (not against the itself but because of it). Radical has to do with that which is at the origin, at the root, as well as, with that which is unstable and provokes chain reactions.

If constituent power is the space and time of making promises then, it is exactly this that the Constitution has to retain from it and by the time of its actualization turn to be effectiveness. By effectiveness I mean the radical character Constitution has retained from constituent power which allows one, in the name of democracy and constitutionalism, to fight for rights, to reinvent them, every time, on the street and from the street. The present time of the Constitution has to be understood in its rela­tion to the past and to the future. Thus, the time of the Constitution is the time of its enforcement by the people and by institutional spheres; the time of the Constitution is the time of the events; it (the time) does not stop; it accelerates, it is the time of life that one lives; it is the now. To radicalize the Constitution means to live it inten­sively without retreat in face of the dangers of life.