Rethinking democratic theories on constitution-making under the shadow of violence
I will begin my approach with methodological considerations which will encompass the first part of the book. At this stage I will develop my theoretical preference to focus on the description of the historical and social circumstances involved in constituent processes, which I will call henceforth the “genealogical model” inspired by Michel Foucault’s social and political terminology (on Foucault’s concept of genealogy see Couzens Hoy, 1998, pp.
18-32). This theoretical insight will be presented contesting the models provided by positivist theories and social contract theories which, under my perspective, are not able to give a satisfactory account on the question of the constituent power, even though, as happens in the case of the social contract theories, they introduce some pretended historical descriptions with the intention of supporting their normative assertions. The positivist approach shall be criticized, since in my opinion it does not provide any explanation on what lies behind the normative supremacy, but I will follow some of its premises regarding the idea of “effectiveness” as a crucial notion to grasp the foundation of a constitutional order and its preservation. Effectiveness is, in my analysis, attached to the question of authority and, in a nutshell, to the mere existence of a constitutional legal system.The main strands of the discussion about the constituent power in liberal democratic constitutional regimes shall be introduced in the central, and second, part of this book.
I will begin by expounding the classic theories on constituent foundations emphasizing the approach of the thinker that, according to some versions, created the concept of constituent power: Emmanuel Sieyes (Sieyes, 1988, p. 137). In introducing Sieyes’ ideas on the pouvoir constituant and its reinterpretation provided by Carl Schmitt (Schmitt, 1993, p.
75) and particularly given the boundless normative character of the constituent power as traced by both Sieyes and Schmitt, I will go profoundly into my description of the constitution-making processes as the legal translations of the coercions given in the foundations of the system. For that I shall distinguish and analyse the historical scenarios of State-building, the drafting of a constitution, and the enforcement of the fundamental rules and the violent clashes respectively experienced in the three of them, as sources of creation of constitutional normativity. The latter will lead me to define a concept of constitution essentially marked by a decision on the allocation of power gained by force, and I shall subsequently present a theory on constitutional transformations linked with the previously developed ideas about what a constitution is. At that point we shall turn our attention to some considerations arising from the work of the author who, possibly, has most acutely explored from the perspective of political philosophy the relationship between violence and the foundations of political systems: Giorgio Agamben (2000, 2003, 2005). Differently from Agamben's seminal work, nevertheless, my contribution rather than being centred on a general theory of sovereign power, distinguishes between stages involved in the creation of a constitutional order:1. the formation of the political community.
2. the specific constitution-making process.
3. the reaffirmation of the constitutional system through the effectiveness of states of emergency.
4. constitutional transformation when the previous order is superseded.
On the other hand, while Agamben's work exposes what may be considered another narrative (a different kind of narrative compared with that of the public involvement but a narrative after all), my intention lies in the struggle of providing a conceptual framework to generate empirically accountable research from historical facts and, more precisely, from the restricted notion of violence that I have mentioned above in referring to Zizek's “subjective violence” (on violence as a contested concept see De Haan, 2009, 27-40).
An attempt to demonstrate the empirical research through the analysis of the historical circumstances is delivered through the experience of two prominent constitutional democracies: the United States of America under the 1787 Federal Constitution, and the German Federal Republic under the 1949 German Basic Law. The analysis on the creation of such constitutional systems is enshrined in Chapters 3 and 4 of the book. In those chapters I will invoke the classic pattern in which the emerging of a constitutional framework is supposed to come from the people's will (the United States) and a pattern of a modern constitutional democracy which is mainly imposed by foreign powers (although the latter point is contested by some German historians and political thinkers). Notwithstanding these fundamental differences regarding constitution-making, both constitutional narratives, the American and the German, ground their legitimacy on the idea that constitutional provisions somehow reveal the expression of an extraordinary and democratic power. Examining the historical circumstances closer I will suggest, however, that the web of coercions that envelops a constitution presumably passed “in the name of the people,” as the American one, do not broadly differ from an imposed constitution such as the German one. Throughout the research I will always have in mind the aforementioned perception: similarities between the American and the German pattern might not only be traced on the outcome (both systems are currently recognized as democracies and federations in which human rights are more or less protected) but on the foundations as well. I will extend my considerations on the German Basic Law to the foundations of the European integration process and the importance of a background of violence to understand the present situation of constitutional structures.
It might be claimed that in my detailed historical analysis should be included, not only the United States and the German Federal Republic cases, but also the French constitutional developments.
However, aside from the fact that I shall deal with some French historical events with constitutional relevance while commenting on Sieyes’ theory on constituent power, I must emphasize that I have centred my enquiry in constitutional systems which, while founded in the remote past as happens with the United States Federal Constitution, are still in force and decisively determine the tradition of current liberal democratic constitutionalism [and leaving aside the considerations expressed by some American authors according to which the United States Constitution has, from a material point of view, radically transformed the original document (see for instance, and in comparison to the French constitutional system, Ackerman, 2019, p. 395)]. Even though the influence of the French constitutional tradition is undeniable both for liberal democratic constitutionalism, in general, and for the theory of constituent power, in particular, I think that a study of the circumstances that led to the approval of the current French Constitution in force, the Constitution of the Fifth Republic adopted on October 4, 1958, would not add any significant point to my thesis. Rather, its adoption in the midst of a political crisis marked by violence, the decolonization wars, and, particularly, the bloody experience of Algerian independence, would do nothing but confirm my intuition (Gildea, 2002, pp. 50-60). Such an appreciation would also emerge if we consider French constitutional history as a whole, since the constitutional replacement has classically taken place through revolutions and coups (Hauriou, 1923, p. 281). In a different sense, the French constitutional experience from 1958 has not been so defining in understanding the dynamic of constitutional development in European integration as the German model has been (Halberstam, 2020, pp. 262-263) an issue on which I shall centre my attention and my critique.A final part of this work, Chapter 5, will be devoted to the analysis of recent examples of constituent developments in stable liberal democracies which I associate with the term of “new constitutionalism.” As we shall see, such struggles of creating a new constitutional settlement have been oriented under the premise of displaying a constituent action with a background of citizenship participation and deliberation, and without any vestige of violence. However, it is symptomatic to confirm the extent to which most of such experiences regarding constituent revisions developed in completely peaceful and deliberative frameworks have historically failed (or did not entail a real constitutional transformation). The recent developments will enable me to show some contradictions inherent to the constitutional founding experience, namely, the paradox of a normative product grounded on an idealized popular unity which is historically created during episodes of radical social and national confrontation.