The constitution as a legal translation of a structure of power

Constitutionalism has been traditionally focused on describing the role of constitutions as devices to limit power. But a constitution may be conceived as a mechanism to create and consolidate power (Wolin, 1989, pp.

the domination (see Gargarella, 2020, p. 68). The stability of the decision about the allocation of power entailed in a constitutional regulation means that such decisions are out of the reach of the majorities formed in ordinary elections in the day-to-day governance.

Several traditions of political and constitutional legal thought might be, of course, involved in depicting such a concept of constitution.

An initial reference would be represented by Carl Schmitt's offspring theory on constitution, which in my view is still valuable to explore the link between constitutionalism and violence. In defining a constitution as the fundamental decisions of the political community in an existential sense (Schmitt, 1993, pp. 3-11 and pp. 75-76; see also Kalyvas, 2008, pp. 129-138; Roznai, 2017; pp. 116-117; Schupmann, 2017, pp. 135-152), Schmitt would allude to the material conditions upon which the positive rules are supported. Which are the decisions reflected in the constitutional text? What would be the “being” of the political community that precedes the form of a legal document? Throughout his work, Schmitt suggests some answers to this question, all of them related to an actual or a potential violent conflict.

He stated, for instance, that politics are founded in the capacity of distinguishing friends from enemies (Schmitt, 2018). Far from being a mere fiction, the pouvoir constituant gained density and concretion when it was associated with the concept of the political that Schmitt held: the “foe” was defined in opposition to the People (to a unified and homogeneous Volk) in the capacity of the latter to dispatch a violent action against the challenges to its collective identity (see on this point, Dyzenhaus, 2019, pp. 497-499 and Scheuerman, 1997, p. 144).

The specificity regarding what an “existential decision” meant to Schmitt, and its immersion within violent contexts was also perceived when he referred to the scope of a constitutional amendment. Schmitt insisted on the point that even through a formal constitutional amendment procedure, the Weimar Constitution would not regulate the same constitutional order if it would establish a Bolshevik regime (Schmitt, 1993, p. 26). The abolition of a liberal democracy and its conversion into a communist system would represent a break up in the continuity of the constitutional identity no matter how it would be expressed in an amendment scrupulously following the established amendment rules. Such disruption, in another sense, would probably result from a social cataclysm disregarding the circumstance of whether the change had been reflected in a constitutional operation or not.

Yet, Schmitt's existential decisions from which a constitutional order is cre­ated are decisions on power, decisions that entitle some groups of the society to dominate the others, to dominate the “internal enemies,” such as minority ethnic groups or social classes (whether it be capital owners submitting the dispossessed, in a liberal capitalist political order, or the workers and the farmers abolishing private property, as in a Bolshevik regime). Decisions that lead to a constitutional reconfiguration would, thus, represent the outcome of a bloody clash in which there were winners and losers, and the winners would use constitutionalism as a mechanism to perpetuate their privileged situation.

Constituent power and the constitution 73 change of decision has not necessarily to be coined in a formal constitutional change. In his later writings (1978), he insisted that constitutional transforma­tions might be carried out in full accordance with the formal law. In modern times the coup d’etat and the process for transforming material constitutions might be legalized (see on this point, Agamben, 2019, p. 463). Fundamental norms, at any rate, would be the legal translation of the decision concerning which groups detain the power of a political entity in a stable manner.⁹

After all, such a concept does not depart far beyond from the ideas on constitution already outlined in antiquity, such as the one described by Aristotle, who somehow conceded that a constitution was rather than a norm the description of the network of forces operating in a given society (Aristotle, 2005, pp. 19 and 68-71; on Aristotle’s concept of constitution see also Schmitt, 1993, p. 4 and Wolin, 1996, p. 38) and, particularly, the expression of the values and interests of a ruling class defined by noble birth, wealth, military prowess, and certain forms of arcane knowledge. To be sure, focusing the concept of constitution on the constellation of forces called to dominate a human collective blurs the differences between liberal democratic constitutions and other ideas on constitution derived from authoritarian regimes which do not fulfil (or they do so only formally) the conditions proclaimed in Article 16 of the 1789 Declaration of the Rights of Man and of the Citizen, wherein it was stated that “any society in which the guarantee of rights is not secured, or the separation of powers not determined, has no constitution at all.”

A constitution as a framework of power does not differ much from the vision expressed by Johan Christian Majer (1799, quoted by Preuss, 1995, p. 62) according to whom (alluding to the existing form of rules in the German monarchies and princedoms) the “constitution” was nothing else but the “status quo.” Rather than being a progressive, transformative, and liberal concept, the idea of constitution would be embedded by conservative and authoritarian influences in the sense of maintaining the relations of domination grounded in an original carnage.

The concept of a constitution as the legal translation of the allocation of power given in a society and the links between constitutional transformations with a radical change in the allocation of power is not obviously far from the Marxist analysis. Marx distinguished between the ideas of constitutional revolution and social revolution, arguing that a constitutional revolution does not entail a fundamental alteration of property rights and political order as a social revolution does (Marx, 1975, p. 176). Hence, Marx developed the idea that a social revolution renders a constitutional revolution superfluous because the constitutional guarantees are merely an expression of circumstances in society which can and must be overcome by a social revolution (see on that point Preuss, 1995, p. 86). Leaving aside that Marx may qualify the American Revolution (and the movements that led to the United States Federal Constitution) as a constitutional revolution, while in my interpretation the events developed in America at the end of the eighteenth century may be as well related to a social revolution, Marx’s terminology would maintain some analogies with my perception on constitutional transformations

(a radical alteration of the political order involving a change in the allocation of power) and constitutional amendment (described by Marx as constitutional revolutions wherein no real reallocation of power would take place).

The other tradition of constitutional thinking that would be directly related to the concept of constitution that I depict here would appeal to the variant that we could call the “social democrat” version of the previous approach, which would have one of its most prominent figures in the sociological concept of constitution exposed by Ferdinand Lassalle in a famous conference entitled Uber Verfassungswesen (“On Constitution’s essence”). In Lassalle’s approach a constitution is the combination of the real power factors existing in a society in a way according to which the constitutional provisions would be doomed to failure if they do not reflect the correlative of forces present within the social body (1993).

The analysis here developed is also swayed by the tradition of political realism (see Rossi and Sleat, 2014; Rossi, 2016; and Sanjaume-Calvet, 2019). From such a perspective of thought, the autonomy of the political would replace that of morality and, consequently, would take seriously the peculiarities of the historical and institutional context. Indeed, a political realist research agenda would not be focused on the construction of grand theories but, as we shall remark, this does not mean that from a realist point of view, it is not possible to propose a normative theory (Sanjaume-Calvet, 2019, p. 10). In fact, we shall conclude by using what we might call “a minimal notion of empirical legitimacy.”

The statements here revealed on the concept of constitution would require further considerations at different levels of philosophical and historical thinking (more precisely, further considerations concerning a particular vision of a philosophy on history) that we may here only pinpoint. The primary digression might refer to an ontological theory on the relations between facts and norms (the facts and the nature of constitutional rules) regarding to which I might set out some perceptions:

I support an absolute factual concept of constitution.

Constituent power and the constitution 75 characterization of the “existential decision” from which the constitutional order emanates.

The absolute concept of constitution would, thus, not be related, as Schmitt is likely to suggest, with a narrative concerning a “decision” adopted by a human group but rather with a fact. Legal language expressed in written constitutions is an abstract object created by human intersubjective discourse in a similar way to how Schmitt's ideas on “existential decisions” are created. But my proposal gets closer to the empirical conditions related to the creation of constitutional rules: violence may, in that sense, appear as a prominent candidate to play both an ontological role (since it is given in the physical reality) and an epistemological one (since it is able to be universally perceived and processed by human knowledge). In that case, violence would be analyzed as the empirical support that relies on the foundation of a constitutional order (including, as we have insisted, constitutional orders developed in the framework of States organized under liberal and democratic parameters). In such an absolute factual concept of constitution, understood in its most radical fashion, violence (the violence displayed in the creation of the political unity and during its transformations) would be the constitutional rule.

A wide array of analytical consequences (both ontological and epistemological) may be inferred from the statement “constitution is violence.”

The first one would be that the apprehension of the nature of a constitutional order would require an approach prone to focus on the violent facts given within a historical context.

Secondly, it should be considered that “violence” is a general category and that, consequently, the analysis of the facts from which the constitutional order emerges would have to scan the whole gamut of coercions and forces experienced in the historical movements that led to the creation of a constitution.

And thirdly, that the analysis of violence is not completely deprived of intersubjective narratives (though those narratives are present to a much lesser degree in some discourses such as the ones related to public involvement). To begin, an interpretation expressed in narrative terms is needed to be built in order to demonstrate causality between violence and political motivation. The murders, for instance, that occur in the midst of a regime change, are the fact that has to be established in the first instance in order to ascertain the elements of what I call the “absolute factual concept of constitution.” Human death caused by human action may be considered as the typical empirical fact, something able to be verified by human awareness and, thus, epistemologically valuable. Again, statements on public involvement while creating a constitutional regime are much more vaporous than determining how many deaths were perpetrated in the convulsions that led to the passing of a new constitutional frame. As we shall see, thus, the question would be to what extent the appreciation of one single death is enough to invalidate any assertion on public participation in constitution-making processes that supposedly establish a liberal democracy.

From a normative point of view, even in a scenario in which all the individuals had participated, deliberated, and consented in equal terms in all the provisions

of a constitution, a single death resulting from a single act of violence would be able to stain all the constitutional developments.

It should be thought, thus, how real experiences might be assessed in which both the participation does not encompass all the individuals in the same terms and where there have been multiple crimes. If the influence of violence during constituent processes leads us into a cul-de-sac in normative matters, at least it may provide a more accurate descriptive frame on the constitution-making experiences in liberal democracies (and, by the same token, it may provide a more realistic perception of the liberal democracies themselves through the analysis of their origins).

If a constitution is a decision on the allocation of power resulting from violence caused by humans (which is able to be captured by human sensitiveness as well), it is time now to focus on outlining the features of that agent that lies behind the material force impinging on constitutional regulation.