The paradoxes of democratic theory and founding

The definition of the conditions that, according to democratic theory, a constitution-making process should fulfil in order to be legitimated has countless problems, to begin with the already mentioned paradox pointed out by authors such as Michelman (1996) according to which the conditions of the founding cannot be defined democratically.

The problem of democratic founding is, indeed, ”one of the most intractable issues in political theory” (Kohn and McBride, 2011, p. 153). The sharpest evidence of this observation concerns the definition of the constituent agent, the subject whose participation in the form of deliberation and consent is required by the democratic theory to draft and to pass a constitution. The paradox of the need of a well-formed people to found a political order which, at the same time, has to be defined by someone else was already pointed out by Rousseau in the Social Contract:

In order for a nascent people to appreciate sound political maxims and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be the product of the way in which the country was founded would have to preside over the founding itself; and before the creation of the laws, men would have to be what they should become by means of those same laws.

(Rousseau, 1966, p. 67)

In mentioning such “social spirit,” Rousseau is likely to allude to some pre­existing rules, a sort of civic ethos, that ought to be shared by the members of the society called to give itself a basic legislation, including the definition of the attributes that explain and justify their belonging to the community which is going to decide on constitutional issues (see on this point Colon-Rios, 2020, pp.

The disagreement on the agent that has to exercise the constitutional founding and to give itself a set of rules has been steadily highlighted also from Sieyes and all those concerned with the question of the pouvoir constituant. As I have pointed out, according to Sieyes, who was well aware of the problem regarding which are the institutional and procedural presuppositions of the founding, the power to organize the structure in which politics are going to develop relies on the relationship between the one that decides on such fundamental arrangements and the agent in which the common will is encapsulated:

It is impossible to create a body for an end without giving it the organization, forms and laws it needs in order to fulfill the functions for which it has been established. This is what is meant by the constitution of that body. It is obvious that it could not exist without one... The body of representatives entrusted with the legislative power, or the exercise of the common will, exists only by the way of the mode of being which the nation decided to give it. It is nothing without its constitutive forms; it acts, proceeds, or commands only by way of those forms.

(Sieyes, 1988, p. 126)

As advanced, my thesis, plainly, is that the definition of the constituent agent is provided by violence, that the determination of what is the nation or who belongs to a people or if some people exercises the right (or not) to self-determination depends on historical disruptions traced by massive human rights violations.

The impossibility of defining democratically the constituent agent, the difficulty to think of the people as a corporate body capable of speaking in one voice, opens thus the door to self-arrogate the representation of such will in creating the fundamental norms by anyone, including a power scarcely attached to any form of popular participation which is able to impose its order, not through deliberative persuasion, but rather through savage means.

Different strategies have been displayed in order to surmount the inability of describing and justifying the foundation of a democratic order in democratic terms and, at the same time, diverting the objections related to violence. I gather them into three main groups:

1. those concerned with the virtues of deliberation to justify the adoption of constitutional rules.

2. those centred in describing the constituent power as an ex-post reconstruction.

3. those, somehow linked to the two previous, devoted to minimizing the factor of coercion in the origins of the constitutional system in order to highlight the benefits of the constituted power in terms of stability and inclusiveness.

Besides the three mentioned strategies I will also mention a fourth one related to some attempts developed by international law scholars focused on surmounting the problem of violence in building national constitutional democracies through a cosmopolitan conception of constituent power.

Deliberation in constitution-making processes as a strategy to diminish the influence of violence

One way of containing the problem of violence in the creation of a constitutional order relies on focusing on the episodes of the constitutional discussion. A democratic theory on constitutional settings would not only be provided by political participation and mobilization, but also by deliberation among the different participants in the constitutional drafting. One of the major theorists regarding the idea of deliberative democracy, Jon Elster, has also turned his interest towards deliberation in the creation of a constitutional framework (Elster, 1994, 1995, 1998, 2000b). Elster defines a deliberative setting as a context in which, since speakers have to justify their proposals according to public interest, outcomes may be shaped independently of the motives of the participants (1998, p. 104). Deliberative models of democracy, to present them broadly, see as a necessary condition for attaining legitimacy and rationality with regard to collective decision-making processes in a polity, that the institutions of this polity are so arranged that what is considered the common interest of all results from a deliberation conducted rationally and fairly among free and equal individuals (Benhabib, 1996, p.

The application of the deliberative models of democracy to the constituent processes, the application of a decision-making process conceived as a “well- conducted conversation” (Banks, 2008, p. 1047), clashes with the same challenges that such models have to contend with in general, namely, that supposed rational and fair discussion on the common good among individuals is developed within a horizon of suppositions, assumptions, and power relations which are able to distort both the process and the outcome of the deliberation. Put in another way, deliberation is not developed out of the avatars of the world, deliberation is attached to history and is a product of it, a frame made of battles, resistances, and defeats, composed by classes, genders, groups, and nations (Benhabib, 1996, pp. 78-79).

The latter may explain why an analysis devoted to handling constituent process from the position of rational and fair discourse, such as the one discussed by Elster himself, is likely to be unsatisfactory. In spite of Elster's struggles to characterize some historical developments regarding constitutional assemblies as the proposed deliberative setting, he admits that force-based threats (which he judges as inadmissible within a deliberative context, 1998, p. 103) concurred with the aforementioned episodes (1998, pp. 112-113). An ambient force was created during the debates of1789 regarding the drafting ofthe 1791 French Constitution,

Constituent power and the constitution 49 or during the discussion regarding the 1848 French Constitution, in both cases with a decisive influence on the outcome of these constitutional processes. On the other hand, although the delegates drafting the U.S. Constitution in Philadelphia never went beyond the threat of force (which might be doubtful as we shall see) Elster also recognizes the flaws in the United States constitutional process from the deliberative and democratic point of view, considering the absolute exclusion of women, slaves, Native Americans, and many property-less individuals (1998, p.

Elster, nevertheless, tries to surmount the objections grounded in the real context of drafting the United States Federal Constitution by defending that is possible to see in some constitution-making processes a deliberative setting by understanding “democracy” and “deliberation” in a minimal sense (1998, p. 98). But the examples provided by the 1787 Philadelphia Convention, or by the 1789 or 1848 French processes, reveal that any deliberative structure recognized in them cannot be detached from the abuses that embedded the elaboration of the constitutional rules finally approved. It is difficult from the outset to see if the deliberative and democratic constitutional processes in which Elster affirms that he is interested, even assuming the words deliberative and democracy in their minimal sense, have in fact taken place somewhere. In an article written later, Elster (2012a) prefers straightforwardly to examine the role of violence in both the making of the U.S.

It is certainly difficult to focus on the deliberative setting regarding the constitution-making process since, as Schmitt rightly detected (1993, pp. 3-11),

in the founding moment, existential questions of the political community are at stake. It is not a matter of reaching an outcome through bargaining, it is a matter of all or nothing. Bargaining and deliberation might occur in secondary aspects of the organization of States, but not in the fundamental pillars of the political order, in what Schmitt called the absolute concept of constitution (der absolute Verfassungsbegriff) which precisely make fundamental constitutional discussions so easily sway into raw confrontations. This topic is also recognized by Elster (1998, pp. 117-118; 2012a, p. 7) when he remembers that the calm and undisturbed conditions in which a constitution ought to be adopted, according to the deliberative pattern, contrast with the dramatic and turbulent circumstances in which constitutions are drafted in the real world. In fact, Elster himself (1995, p. 370) noticed that the activation of the constituent power is sociologically and historically associated with strong conflicts which are not particularly conducive to deliberation. So:

new constitutions almost always are written in the wake of a crisis or exceptional circumstances of some sort... By and large.. the link between crisis and constitution-making is quite robust.

Also, Russell (1993, p. 103) admitted that:

No liberal democratic State has accomplished comprehensive constitutional change outside the context of some cataclysmic situation such as revolution, world war, the withdrawal of empire, civil war, or the threat of imminent breakup.

Furthermore, even while nowadays deliberation is at the centre of normative ideas about democracy (Gutmann and Thompson, 2004, p. VII), there is no agreement in the literature about to what extent deliberative standards are accomplished while discussing and approving a constitution (Ginsburg, Blount, and Elkins, 2008, pp. 367-368). The faith in deliberation is puzzling since scholars have not clarified how deliberation really works (Barabas, 2004, p. 687), and even the normative premises regarding institutions in which deliberation is supposedly to be held, are fuzzy.

The same disagreements that any theory on deliberative democracy has to face when it is confronted with any level of governance are reproduced (and amplified) in the case of constitution-making. As some recent processes of citizen- led constitutional change have shown, participatory and deliberative trends set in motion several factors that might lead to contradictory outcomes. Deliberation is argued to promote rationality by encouraging a real and sustained dialogue (Carolan, 2015, p. 736) but, as suggested, massive political mobilization and participation is likely to cancel scenarios in which rational and deliberative dialogue can be developed.

In fact, it may be doubtful if deliberation, defined as an enlightened and open- minded search for consensus in which participants cast their personal interests

Constituent power and the constitution 51 aside, is related to political discussion (Barabas, 2004, p. 699). Yet, political discussion is not, or not only, the research of the truth beyond ideologies. Politics is not science. If we have ideologies, it is because the conditions, the procedures, and the outcomes foreseen by deliberative theories are imperfectly given in the real world. A general objection to deliberative analysis and decision­making procedures highlights the problem about the political character of the procedure chosen: procedure might be itself a political decision, able to influence the outcome. The conclusion of the debate would thus not be a rational and consensual solution adopted by free and equal participants, but the answer that those who designed the procedure, motivated by political interests, sought to reach.

A constitution-making is, in addition, a procedure marked by the imperfections, inequalities, and lack of information of the participants, as well as by historical circumstances, prejudices, short-term ambition, the desire for material wealth and political power, and therefore, intimidations and coercions. The literature is full of examples of short-term political interests that impinge on fundamental legal configurations (see, for instance, Ackerman, 2019, pp. 12-13).

The binomial, deliberation/constitution-making has, besides that, to surmount another shortcoming: even while admitting that deliberation may offer a fair frame in which individuals may discuss in equal conditions the experiences that have been developed during the last decades in the form of deliberative citizens' fora such as randomly chosen assemblies and juries, consensus conferences, or deliberative polls have been more likely to succeed regarding one particular issue. A discussion on whether a sixth nuclear power plant should be built in Finland is one thing (Setala et al., 2010) and another is deliberating about an overarching regulation of the public power which is entailed in constitutions (Kong and Levy, 2018). Confronted interests, contradictions, technical ignorance, and atavistic resentment are usual while drafting a constitution. Still, if we focus the definition of a deliberative model on the arrangements conducive to conducting a rational and fair discussion on the common good, the debate on constitutional rules is precisely the debate on those arrangements which enable deliberation. Constitutional matters are matters of the preconditions of deliberation, and such preconditions are not attained in their turn through deliberative processes.

Related to deliberative theory, one particular institution involved in constitution-making procedures tends to generate controversy and reflects the lack of agreement among experts: the referendum. Ratification through a referendum involving direct vote by citizens has been seen as an expression of popular participation necessary for a constitution to be regarded as legitimate (Ginsburg et al., 2008, p. 362; Ackerman, 1992, p. 53). It has been seen, at the same time, however, as an instrument with which all sorts of populist rulers may mislead their citizens. As evidence of the relevance of the referendum in modern constitution-making, it should be highlighted that of 49 new constitutions promulgated in the twenty-first century (until 2020) 26 have been approved in referenda.⁶ But it has been suggested that ratification is probably an insufficient instrument to engage the public in the constitutional process. Authors such

as Gastil (2000, pp. 69-71), while admitting that referenda may provide a complement for representative government in order to reinvigorate the public sphere, deem that this form of direct political participation may suffer from similar maladies to those that plague elections for public office. Tierney (2012, p. 23, and 2014) for instance, detects three major inherent problems associated with the use of referenda: “elite manipulation” (a problem which, as we shall see, is inherent to the constitution-making process itself), “deliberation deficit,” since the voters may have insufficient information to base their vote upon, and “majoritarian danger,” since the adoption of a new constitution by referendum with the support of an overwhelming majority does not preclude the violation of the rights of the minority.

Supporters of referenda, on the other hand, are reluctant to limit the constitution-making process to only one final referendum of ratification (see Eisenstadt et al., 2015). A “yes” and ”no” vote to the whole draft is not, under this perspective, likely to provide the proper deliberative atmosphere that would require a discussion on the different institutions through which the relationship between the people and the power is designed (See Colon-Rios, 2012, p. 154; Tully, 2002, p. 213).

If the ratification through a final referendum has been deemed as a device used by the elites to ensure popular consent to the decisions on the governmental system that they have already adopted (Morel, 2012, p. 505; Suteu, 2015, p. 273), in the darkest fashion the apellatio ad populum that a referendum entails has been associated with authoritarian government (Kay, 2011, p. 747). In conflictive transitions, charismatic leaders have used referenda to trigger a constituent process suitable with their aspirations to strengthen their power in respect to other representative institutions (Partlett, 2012, pp. 223-233; Arato, 2020, p. 91). The mandate of hearing the voice of the People has sometimes covered up infringements of legality or dismantling of democratically elected bodies.

Generally, recent participatory constitution-making processes, such as the ones triggered in Iceland or Ireland, have highlighted the tension between participation and deliberation, expressing uncertainties as well around representativeness of citizen-led assemblies and their relationship with institutions. It is not clear to what extent direct engagement of the citizenship in participatory forums provides a more qualified deliberation than that developed in the political instances through elected representatives. In that sense, sceptics on the direct engagement of the public in a constituent process have even suggested that citizens are, to a greater degree than the elites, motivated more by self-interest than by ideals of community and good governance (Cusack, 2003, pp. 91-93). From this point of view, thus, might be accepted a limitation on public participation in constitution­making in order to avoid the creation of a governmental system captured by a mass desire for immediate benefit.

In short, even though the idea of deliberation in order to assess public participation has been exhaustively analyzed in historical processes of constitution­making (and even though it still represents the normative keystone in approaching the more recent constituent episodes, see Eisenstadt et al., 2017, pp. 25-54)

Constituent power and the constitution 53 there is no consensus among the scholars about what deliberation is, or ought to be, in the different phases of passing a constitution. The unleashing of streams of violence that surround deliberative fora in real experiences of founding new constitutional regimes jeopardize, in my view, any consideration on the supposed democratic virtues of rational and inclusive dialogues developed in contexts of public participation and mobilization. In another way, as we shall see, where a special effort has been made to engage the citizenry in a brand-new constitution­drafting, what eventually happens is that the constitutional product is usually (if not always) not finally approved.

Constituent power as a permanent reconstruction

Recent theories on constituent power, such as the ones presented by Lindahl (2003, 2007, 2015) or Loughlin (2014) describe constitution-founding through the ontology whereby individuals retroactively identify themselves as the members of a polity in constituent action by exercising the powers granted to them by a constitution. Thus, the act of collective self-attribution would not have taken place in the historical point related to the constitution’s approval, but in the timeframe ruled by the constituted power which, in obeying the constitution, would reaffirm the “We” of the original moment. In a similar vein, as some German scholars do in their struggles to rebuild the constituent power through the democratic processes foreseen by the German Basic Law (see Mollers, 2007, pp. 98-99; Kumm, 2016b; Patberg, 2017), for Lindhal or Loughlin constituent power would be therefore discerned through the processes developed under the constitutional regime. In fact, some authors have noticed that it is the constitution itself, after its enactment, the device called to develop a sense of mutual belongingness among the citizenry. As Joseph Weiler (2003, p. 9) has observed, the demos able to act as the maker of the fundamental rules is constituted, legally, by the very constitution, and often the acceptance of the constitutional framework is among the first steps towards a thicker social and political notion of constitutional demos. Echoing Loughlin’s works, Nootens (2015, p. 138) also described the role of the constitution as a factor of building the collective ruled by it:

constituent power is a symbolic reconstruction of a multitude as a collective political agent that is crystallized a posteriori in distinctive representations of ”the people” (in a kind of “back-to-the-future” move) that build on the empirical and discursive significance of specific interests, yet whose function is to represent the whole body politics.

Such approaches coincide in underlining the paradox of giving normative value to something that cannot be confronted with historicity. This ontology, nevertheless, handles a historical product which is extracted from historical developments. The truth about the facts is consciously lifted in order to create authority. As Lindhal admits (2007, p. 20):

the characterization of collective selfhood relies on a past that never has been present and a future that never will become a present, hence on a past and a future eliding its control.

Certainly, the “past” to which the exercise of constituted powers by the individuals is referred imagines an action of the People that never was. Lindhal depicts the constituent moment through a retroactive ontology precisely because of the democratic deficits of the real constituent moments provided by history. Since we have serious problems characterizing constitution-founding as a collective action based on cohesion, democracy, and deliberation, and completely outside of repressive factors, authors like Lindhal and Loughlin move the democratic elements of legitimacy to the future.

To such a strand would also belong the sociological and functionalistic approach developed by Thornhill (2012, p. 389) who, precisely by observing the historical weakness of the foundational experiences as ways of conferring an external legitimacy to the constitutional system, suggests a notion of constituent power fixed through institutions and practices developed within the political system.

In my perspective, nevertheless, evoking a real situation made of conflicts and divisions might precisely provide an explanation about the current deficits in the day-to-day functioning of liberal democracy. The “reconstructive” theories see both the reaffirmation of the constitutional foundation and the “We” in the democratic present, in the exercise of fundamental rights and the constraints on government through the division of powers. But the question is do the past flaws reappear in the present and distort current developments within the constitutional State? Unavoidable circularities, furthermore, affect the reconstructive approach: we do not have in the present either the confirmation of the ”We” because it didn't exist in the past and, when we struggle to solve the conflict in the present, we have to look backwards into a past that has never existed: a past that has motivated the present division.

More criticisms and observations can be added to the reconstructive vision: an individual consent pronounced through the constituted power that confers, retroactively, an entity to the constituent power and the foundation is not rooted in the effectiveness of the constitutional rights or the constitutional framework. In my account, the individual consent that can be inferred from the effectiveness of the constituted power is not retroactively applied in order to revive the presence of the People but it signalizes the violence and the turbulences that surrounded the original moment. The constitutional language on the present maybe depends, as Lindhal suggests, on a retroactive ontology, but not in that of remembering “We the People,” but in that marked by the fears of the forces that clashed before the approval of the constitution or that fostered the inauguration of the constitutional order. In summary, the “We” is more defined through the remnants of violence in the present than through an idealization of an original consent.

Such retroaction centred on blood and death instead of on the supposed will of the living participants gives a precise account of the ex post facto character of

Constituent power and the constitution 55 the constituent power. The acceptance of the order might only be given to a violence that succeeded. If a constitution, for example, defines a People in national terms (and considering the paradox mentioned, according to which the constituent power cannot be placed upon said “We the People” since it is created by the constitutional rule itself) what the constitutional mention in reality envisages is the national group which won the original conflict against other nations and ethnic minorities: the rule creates the People since the facts established the relation of domination. The constitutional determination of the People in national terms would be, in this way, nothing but a certification of who won the confrontation.

Observing the issue through the prism of violence in such national clashes enables us to appreciate, firstly, that a subject in the form of a national or ethnic group imposed its coercion upon minorities and created a political community; and secondly, that said subject can only be outlined retroactively since the point from which the winner is perceived is the constitutional determination of the national People and the effectiveness of the constitutional order; thirdly, that constitutional language confers legitimacy to such a retroactive operation; and fourthly, that legitimacy does not come from an authority inferred from the constitutional rule regarding some principles of morality or fairness, but from the sign of the knife with which the prevalent group asserted its dominance upon the others.

Thus, constituent power wouldn't be understood through a reconstruction regarding the virtues of the constituted power as, let's say, the protection of human rights, democracy, or the welfare State; but on the confirmation of the effectiveness of the constitutional order in threatening the population with repetition of the original acts of oppression, in the case of collapse of the current framework.

Again, it is not a matter of the mobilization that surrounded the act of constitution-founding, but a matter of the People's passivity once the system is established, fearing another descent into the hell of war, mass murders, or ethnic cleansing. The constitutional system is, thus, in force, as long as the remembrance of the original founding is able to be imposed and used as a threat when other violence arises strong enough to challenge the repressive mechanisms of the system and to cancel the memory of the clash that underpinned the previous regime.

The constituent power, thus, would not be a reconstruction regarding a democratic past that never had been, but a violent past that, on the contrary, was enough present in the collective and the individual memories to sustain the established constitutional system.

Looking to the future in order to avoid the view of the past

Another way to focus on deliberative and discursive factors in deciding on constitutional issues might be well represented by Jurgen Habermas' theory on the foundations of a constitutional democracy (1996, 2001). In a different way to the theories of the ex post facto reconstruction, Habermas is fully concerned

with an exploration of the features of the constituent moment. His struggle is also centred in establishing the normative conditions of the founding even though some defective externalities regarding the empirical conditions on the constitution-making operation might be obvious. Thus,

Rather than appeal to a moral realism that would be hard to defend, I propose that we understand the regress itself as the understandable expression of the future-oriented character, or openness, of the democratic constitution: in my view, a constitution that is democratic not just in its content but also according to its source of legitimation is a tradition-building project with a clearly marked beginning in time.

(Habermas, 2001, p. 774)

Since the constitution-making practice is oriented to the future, Habermas would assert, shortcomings which alter the constituent moment might be corrected through the deliberation on constitutional issues displayed while the constitutional regime is in force. Thus, a democratic constitution devoted to ensuring liberal basic rights and rights of political participation and communication would enable an inclusive process of opinion- and will-formation on the part of the citizens functioning as a self-correcting process in discussing constitutional issues.

To be sure, this fallible continuation of the founding event can break out of the circle of a polity's groundless discursive self-constitution only if this process, which is not immune to contingent interruptions and historical regressions, can be understood in the long run as a self-correcting learning process.

(Habermas, 2001, p. 774)

Yet, the problem of Habermas' “self-correcting learning process” of constitutional practices is, in my opinion, that he is still requiring strong normative conditions for the citizens' participation in the founding, which are not given in reality (mainly because they are distorted by the involvement of physical force). The latter seems to be recognized by Habermas as well (2001, p. 778), in spite of the fact that he avoids exploring the problem of violence in the foundational moment in its entirety, when said violence might cause the invalidation of the whole creational endeavour.

We can see it in more detail: Habermas claims for a co-original formation between the citizen's democratic participation and the basic liberal rights (Habermas, 1996). Such integration between public autonomy and private autonomy, that makes democracy possible, when legally incarnated, would crystallize in the constitutional agreement. Hence, the constitutional agreement would be signed by participants able to fulfil different conditions, the first of which is that they form a voluntary association of individuals considered free and equal and committed to regulate their future life together by means of positive law.

Constituent power and the constitution 57 we understand the normative bases of constitutional democracy as the result of a deliberative decision-making process that the founders (motivated by whatever historical contingencies) undertook with the intention of creating a voluntary, self-determining association of free and equal citizens.

(Habermas, 2001, p. 772)

Our objection, of course, is that such association is never voluntary under the empirical and historical contingencies to which Habermas alludes and that, rather, the foundational moment has been dominated by coercions and exclusions. Those “historical contingencies” are precisely what empirically makes the association not free and avoids the fulfilment of the “normative bases” of the constitutional agreement. Nevertheless, being aware of such circumstances, Habermas insists on the constitution-making practice as a necessary commitment in ensuring the deliberative practice and the inclusiveness in that practice of the future members of the association counted as bearers of individual rights:

the normative expectation of complete inclusion and mutual recognition, as well as the expectation of equal opportunities for utilizing equal rights.

(Habermas, 2001, p. 775)

If the constitution-making moment is legitimate as long as it foresees the expansion of the discursive and deliberative practices under the law through the inclusion of new members covered by both participative and liberal basic rights, it is because in the original agreement not all the members were historically included.

The thesis that seems to emerge from Habermas' approach would be that rather than the exclusions and the arbitrariness crossing the constituent moment, the important thing to assess the legitimacy of a constitutional system under democratic parameters would be its ability to establish the pillars to expand the constituent agreement in the future. In order to simplify Habermas' proposal with the example of the United States Constitution-foundation, it would not be as relevant if the foundational moment were led by a handful of landowners and slave traders which excluded slaves, indigenous people, or women, if the operation that began in Philadelphia allowed, in the future, the inclusion of those marginalized groups. The important issue is if the established constitutional system would entail a moral basis relating to democratic openness, discursive practices, and safeguards for both democratic and liberal rights that would be sufficient to permit self-correction of the original deficiencies, in the long run. But, again, the mere need to focus on the ability of the constitutional regime, once established, to promote inclusion in the future somehow supposes an admission of paucity, both in democratic and in liberal terms, of the original arrangement (on this point see Olson, 2007, p. 340).

Habermas' characterization of constitutional democracy is rather a promise of equal political agency and, in that sense, his idea for evaluating the legitimacy conditions of a constitutional democracy does not differ substantially from other kinds of political regimes (after all, for instance, communist regimes were also

grounded in a promise of full political inclusiveness even though it was recognized that before reaching a horizon of equality it was needed to suffer chapters of violence, exclusion, and marginalization, such as the disruption of a revolution and the dictatorship of the proletariat).

Habermas' theoretical developments, in spite of the fact that he deals with the past (as he does in presupposing at least a minimum of deliberative practice in the founders' performance) are likely to stress the future-oriented character of the constitutional project in order to elude the exploration of that problematic background. But, under my perspective, precisely the abuses of the past, and particularly those involved in the creation of the constitutional framework, are the factors that make the correction of the system in the present impossible. The problems of the past are dragged into the present and make the future turbid (see Agne, 2012, p. 848). It is not only a matter regarding the shortcomings of the deliberative and inclusive practices developed within the founding act (in most constituent experiences such practices were not given at all) but also that the democratic and liberal paucities of the origins are the grounds on which the constitutional regime is sustained in the present.

In my vision, a constitution is the legal way to convey foundational abuses through time, these only ceasing when the basic existential decisions concerning the structure of dominance of that society change, and are replaced by others, which would mean that the system is replaced by a new constitutional settlement.

Political systems and their constitutional regulation, as in fact Habermas' theory is likely to suggest, are partially founded in amnesia. The creation of a constitution requires a quantum of suppressed memories to ensure its effectiveness. A constitution is, somehow, a tool to forget the dark past through the appearance of the law. The French historian, Ernest Renan, acutely described the relationship between the building of a political community and the operation of forgetting historical wrongs:

The essence of a nation is that all the individuals share a great many things in common and also they have forgotten some things... Every French citizen should have forgotten the Saint-Bartholomew [the massive killing of French Huguenots by the Catholics in 1572].

(Renan, 1961,p.892)

If the injustices committed during the founding persist in the memory, the constitutional drafting is more likely to be perceived as a product of a faction. The more buried the deeds, the more impartially the constitutional covenant might be interpreted. Such has been, for instance, the strategy coherently adopted by the social contract theories: individuals concur to agree the contract naked of regrets, under the “veil of ignorance” (to say it in Rawls' terms) or able “to pardon past offenses” (to say it in Hobbes' terms).

A genealogical approach on the formation of political entities and the analysis of the constitution-making that vest such entities with a legal framework is rooted in the opposite position from this selective amnesia. What matters essentially is what happened: the description of the abuses that a group committed against others. In the case of the liberal democracies, the genealogical approach is centred on exploring the fissures opened before the time that such entities might call themselves “liberal democracies,” or the moments in which, once established, liberal democracies suspend the handling of challenges in a democratic fashion by dedicating themselves to the destruction of opponents.

Memories have an ambivalent character in my interpretation of constitutional supremacy. On the one hand, they contribute to weaken the effectiveness of the constitutional system since they insist on describing the constitutional draft as a legal translation of an injustice (in that sense as an opposite operation to the one provided by amnesia, which tends to strengthen the system). But, on the other hand, as I remarked, the evocation of violence is a device attached to the enforcement of the constitutional order and its prevalence, since the memory of civil confrontation dissuades the losers from pressing for an utter change of the regime, as they fear a subsequent defeat.

Here would come my reading of the positivist model that I have presented in the previous chapter concerning the “effectiveness” of promoting obedience as a character of constitutional rule. More precisely, in my opinion “effectiveness” as a capacity to promote obedience makes the positivist analysis cling to a normative ontology which may be summarized in the statement according to which “effective rule (namely, constitutional rule), able to impose general obedience, is a rule that exists.”

If we examine how such a rule is obeyed (and thus exists) the answer would be that is because of the violence irradiated from the original moment to the present: obedience relies on the terror that the remembrance of the founding crimes is still able to inspire, or that it reemerges in a moment of crisis in the system.

Saying that effectiveness explains the being of the constitutional norm, as a positivist approach does, may be equivalent to saying, as the genealogical approach may hold, that violence is the being of the constitution and that such an essential quality is something that a more or less inclusive development of the constitution, once the constitutional system is established, cannot repair.

Surmounting the debate on constituent power through post-national constitutionalism?

The final strategy that we are going to present regarding the challenge of superseding the lack of democratic attributes in the creation of a constitutional democracy is related to the theories invoked in describing the formation of constitutionalism beyond the State (see Krisch, 2010, 2016; Kumm, 2008, 2016b; Walker, 2008). David Dyzenhaus, for instance, has examined to what extent the issue of international law's constitutionalization has boosted the discussion around the question of constituent power (2012, p. 231). How much might constitutional language be applied to international law practices or specific international regimes? Are the founding categories managed by constitutionalism regarding sovereign States able both to explain and to justify the arrogation of power by international and transnational bodies? Might the foundations of international law, based on constitutional categories, generate the same problems that we see in the legitimacy of the sovereign State itself?

Such issues have been envisaged in recent decades in countless contributions from both constitutional law and international public law scholars which might be gathered under the label of “cosmopolitan constitutionalism” (Fox-Decent, 2016, pp. 125-137) or “post-national constitutionalism”(Krisch, 2010, p. 16; Shaw, 1999). From the “cosmopolitan” perspective, in summary, it is possible to build a justification of a global public authority without connection to the self-governing practices of a people and, nevertheless, call this international phenomenon “constitutionalism.” On the other hand, authors such as Nico Krisch, supporters of a post-national conception of the law, go beyond. They even are critical of the idea of translating constitutional language to the global arena, arguing that the continuity between the domestic constitutionalist tradition and the cosmopolitan one by ensuring democratic participation in decision-making processes and the electoral accountability of the resolutions of global governance is “neither practically possible nor normatively desirable” (2010, p. 17). Thus, legal globalization and the interaction between States in the “post-national” space would not be necessarily organized under the ideas of self-government and the ultimate legal authority focused on the form of a written constitution in the service of the “We the people,” but in a more ambiguous coordination between plural legal systems, parallel to the considerations on the democratic legitimacy of the domestic orders. The post-national proposal would also reject any idea of a supreme norm to which the whole system might be subordinated. Lacking a global demos able to ground the democratic legitimacy of a supreme norm, the very notion of normative supremacy (crucial to constitutionalism) might be expelled both from the descriptive and the normative analysis of regulatory responses in an interdependent world.

A similar debate has played a central role within the framework of the European Union integration process since, in said scenario, there was perceived a need to build a concept of legal authority beyond the idea of the ultimate authority placed in a demos. Discussions on these issues have been reactivated during recent years, marked by economic crises in which decisions adopted at the European level regarding the returning of debts, the budget balance mandate, or the undermining of the welfare States that compose the Union needed to find some legitimacy beyond democracy. To some extent, nonetheless, the ideas around cosmopolitan constitutionalism and its conclusions, including the ideas provided by the European Union experience, substantially coincide with the approach here developed on the domestic level: by remarking the real lack of popular involvement in the founding. To put it in another way, cosmopolitan constitutionalism and “State constitutionalism” present some analogies regarding the real participation of the people during the foundation of their respective orders. This is also suggested by Mattias Kumm (2008, p. 319) when he observes that:

When questioning international law it is important not to ignore these features of domestic practice, idealizing constitutional conventions notwithstanding.

There is a widespread tendency, directly attributable to the prejudices associated with the statist tradition, to adopt idealizing prose when thinking about domestic constitutional practice while insisting on a hard-nosed realist vocabulary when describing the world of international affairs.

According to my vision, in short, translating the discussion on constituent power to the international arena does not erase the problems that democratic theories have both in describing the constituent moment at the domestic level and in conceiving normative theories about it. In fact, international discourse only makes the narratives on popular participation and mobilization in creating State constitutions more unsustainable. The latter, in addition, would be in our opinion, marked by two objections, the first from a normative perspective and the second formulated from a descriptive one:

Firstly, any attempt to reduce the idea of constituent power in the global order, by minimizing popular involvement in the global sphere might be considered a back-door way to justify the current state of things in the international order: that is, a global sphere in which authoritarian States are in the same position as liberal democracies, both to create a global legal order and to claim the highest authority for such international rules. Absence of a democratic origin of the public power is precisely the point that enables an author like Dieter Grimm to state that the essential conditions to reconstruct the idea of constitutionalism beyond the nation-State are still not given (2010, p. 22) and, related to this, one might recall that the democratic principle does not belong to the set of principles concerning general international public law. Notice that in the international scenario we find at the end of the day the proximity between constitutional democracies and authoritarian States that we already remarked that was appreciated during the founding of both domestic systems.

Secondly, the basic point of our observations regarding the violent origins of State constitutions might be also translated to the configuration of the “international community” and its global rules. So understood, even admitting as Kumm (2016b, p. 699) struggles to show, that the legitimacy of the State in a world of sovereign States depends on its integration into an appropriately structured international legal system and such an international legal system might be considered a “global pouvoir constituant” the origins of the present order would be rooted in the most recent global shock: the Second World War. So, in the cosmopolitan constitutional order (both the global, with organizations such as United Nations, and the regional, with examples such as the European Union) the basic premise according to which “constituent power is violence” would be valid as well, or, at least, as valid as it is for State constitutional democracies. When, for example, Bardo Fassbender (2008, pp. 286-291) attempts to portray the United Nations (UN) Charter as a constitution, and “the peoples” of the world as the constituent power behind it, he could not escape from the fact that the creation of the Charter in San Francisco took place in the last throes of the Second World War and was led and conceived by the sovereign States that won the war. Such evidence showing to what extent the legal framework of the

UN Charter depends on the victorious forces in the last global confrontation is provided by the veto bestowed to the Second World War Western Allied Powers, the former Soviet Union (now Russia), and (later) the People's Republic of China as permanent members of the Security Council both in admitting new members of the organization (Article 5.2 of the UN Charter regarding the system of voting in the Security Council provided by Article 27.3 of the UN Charter) and in amending the Charter (Articles 109.1 and 109.2 of the UN Charter).

Provisional conclusions

I have revisited the different proposals conceived to provide both a descriptive and a normative theory on the constituent power from the perspective of democratic theory. My criticism of such approaches, from the deliberative vision of the constitution-making processes to cosmopolitan constitutionalism going through the “back-to-the-future” reconstructive struggles, is centred on the minimization of the role of violence that all of them express.

As has already been outlined, high-scale conflicts are in my opinion crucial to understanding the movement of erecting a constitutional framework even if we depart from some ontologies provided by the theories analyzed, as happened in the case of the reconstructive operations to endorse the ex post facto creation of the constituent agent. I will further expose how far the presence of violence to explain the creation of a constitutional order depends on the concept of constitution itself. But first it is time to describe the different phases in which violence irrupts in a relevant form for constitutional developments and in what way it defines the elements involved in constituent decisions.