The origins of constitutional democracy
A political community not founded on violence has probably never existed. In the beginning was violence and then appeared the word that ensured the order emerged from the original breach.
First comes the force and then comes the myth. In such considerations are included authoritarian patterns of government but also (herein the main concern of this text) States organized under the set of political and legal practices identified with the concept of constitutional democracy.The basic idea of this text is that even the founding of a system grounded on the rule of law, the separation of powers, fundamental rights, and political participation is originally rooted in some form of coercion, such as wars, exploitation, ethnic cleansing, or domination through armed force, and not in a public, fair, and rational deliberation developed within a space of freedom and equality. Accordingly, constitutional limitations, including the idea of constitutional supremacy and its safeguards, such as judicial review of legislation, besides the task of protecting liberties within day-to-day democratic developments also help to maintain the powers erected during the creation of the political regime.
Constitutional settlements that supposedly serve liberalism and democracy, in short, that have been drafted and adopted in the shadow of the gun,1 or similar circumstances, have consequences that reemerge in the present. Modern scholars who have approached the question of constituent power tend to admit that “(almost all) actual beginnings are linked to dictating violence and can have no normative justification” (Arato, 2016, p. 1). To put it in Nietzsche’s words (an author that through Foucault’s genealogical analysis shall be crucial in my analysis) legal and moral concepts “in their beginning, as all that is great in the earth have been watered by blood” (Nietzsche, 1892, p.
51). Any research into constituent power is a research on the origins par excellence, an inquiry on the formation of political order and the drafting of the rules that organize it. The constitutional State has this “original sin.” The liberal and democratic State has found in constitutionalism a way to rationalize (and to forget) the original violence, the centrality of sacrifice (of killing and being killed) in the construction of the political entity (Kahn, 2011, p. 28).The veil that helps partly to cover the trace of the corpses is related to the concept of “popular sovereignty,” and more precisely, to the narratives developed around the participation of the public in the approval of the constitutional settlement (Balkin, 2011, pp. 31-32; Torres and Guinier, 2012, p. 1057). Under the constitutionalist paradigm the justification of constitutional supremacy hinges on the “We the People,”2 the political entity that, as a sovereign nation, conscious of its unity and supposedly as an act of free will, gives itself the framework of the basic rules that will organize the community in the future. Current enquiries on constituent power are centred in tracing a normative theory on people's participation while creating a constitution (see, among many others, Agne, 2012; Banks, 2008; Colon-Rios, 2012; Eisenstadt et al., 2017; Elster, 1994, 1995, 2000a, 2000b; Habermas, 2001; Lindahl, 2015; Loughlin, 2014; Rubenfeld, 2001; Rua Wall, 2012). But another point of this book handles violence as a decisive factor involved in every constitutionmaking process.
In spite of the fact that some prominent scholars who had turned their interest to the question of how constitutions are created admit the decisive role of coercion in drafting and passing constitutions (Patberg, 2017, p. 55; Loughlin, 2014, p. 229; Kumm, 2016a, p. 920; Walker, 2016, p. 908) they tend to elude any further consideration on that issue in order to look at the empirical forms of democratic practices and public participation that may be registered in some constituent experiences (so Jacobsohn and Roznai, 2020, p. 224). Unsurprisingly, violence barely plays a role in their theoretical analysis of the constituent power.3
Instead, my approach is concerned about the empirical practice of violence in constitution-making processes arguing that any of the violations perpetrated during the founding cannot be compensated by narratives on popular participation.4 In other words, the mere presence of violence cancels any justification of constitutions grounded on the supposed democratic character of the process that created them. Since the real world offers a general connection between violence and the building of constitutional order, I consider it secondary to explore in detail which condition should be fulfilled in order to determine if a constitution is, or is not, a product of popular will.