The revival of the discussion on constituent power (and some possible reasons for its previous abandonment)
Aside from the relatively recent revival of the issue,9 political philosophy and legal thought had been scarcely concerned in the second half of the twentieth century by the question of constitutional foundation (see Van Middelaar, 2013, p.
36). Such a lack of interest can be seen in spite of, or precisely because of, the fact that most of the constitutional documents in the Western tradition still in force in the twenty-first century were produced during the decades that followed the end of the Second World War.The theoretical indifference to self-assessment about the origins of Western constitutional democracies in places such as Germany, Italy, or France may be assessed as a political strategy to entrench the legitimacy of such regimes from the ashes of war and given a context in which the Communist bloc could have spread its power to the whole continent. In my opinion, the circumstance that the history of the creation of constitutional orders in the Western tradition and, particularly, in the European tradition, owes something to the developments experienced in the interwar period, during the Second World War and in its immediate aftermath, is what explains the lasting abandonment of the question. In other words, the violence of that time, as my research on the present German constitutional system shall remark, had something to do with the configuration of the present constitutional structures, including the taboo on undertaking a serious critique of the constitutional foundations in Europe.
Besides that, the point was that constitutional regimes designed in the postwar decades were stable, stable enough to the degree that they were triumphant in contrast with the collapse of the Soviet bloc from 1989. Nobody was likely to care about the coercions and abuses involved while designing those European political systems that, at the end of the day, worked.
Even in Germany, as we shall see, the lack of profound constitutional transformations during the process of national reunification in 1990 and the circumstance that East Germany was absorbed by the West German constitutional system, in a move conceived by the Western German political elites, did not provoke relevant protest in Eastern Germany nor among the Western German opposition (Ackerman, 2019, p. 20). German scholars, who maybe in 1990 had been the most active in campaigning for a new German constitution for a unified Germany, soon renounced their proposals.The European integration process provided instead an opportunity to debate again on the constituencies, but such discussions did not challenge the constitutional pillars of member States nor the condition of the latter of the “masters of the treaties,”10 in the words of the German Federal Constitutional Court, that is, of their condition as sovereign entities.
An alternative crisis would be necessary in order to provoke any meaningful discussion on constituent processes in Europe. As a consequence of the 2008 global economic crash, everything began to be questioned, particularly in the 2010s when the Western tradition of political thought dealt with the political consequences of the previous economic disaster (Tooze, 2018, p. 13). It is in that vein that some attempts to pass brand new constitutions were undertaken in those political systems that had been sharply affected by the economic devastation (as happened both in Iceland and in Ireland) and that the moves for a new constitutional framework caused a total reconsideration on the theory of political participation regarding the approval of fundamental laws.
Curiously, in those places where a complete constituent operation has been perpetrated were places, like in Hungary, in which constitutional democracies, pressed by the so-called illiberal drift, suffered the questioning of some of their most fundamental principles. They were also places in which the constitutional change was effectively culminated with the approval of a new constitution and that happened without instruments of popular direct political participation, not to say any of such innovative figures of public involvement (random citizenry assemblies, partial referenda...) proposed by theoreticians concerned with the relationship between democracy and the creation of a constitution. Experiences such as the Hungarian one show, to some degree, that a new constitution is likely to be passed precisely when public involvement is curtailed.
Apart from the political developments in Western Europe, the conclusions of which are still very uncertain, the question of constituent power had created some interest in other parts of the globe much before the convulsions in the liberal order that the 2008 crisis represented. The aforementioned dismantling of the Communist world, including its consequences in Eastern Europe and the split of some Eastern European States (the Soviet Union, Yugoslavia, and Czechoslovakia), marked another point of increasing theoretical elaboration on constitutional design. The struggles of constitution-making in Latin America were another scenario that brought the topic of constitutional creation to the core of academic concern and, more recently, anti-authoritarian revolutions in the Middle East, already occurring in a moment defined by global economic turmoil, opened other paths for debate on constituent power. But leaving aside the fact that the episodes experienced in Eastern Europe, in Latin America, or in the Middle East were clearly tainted by bursts of violence (which in fact made evident some of the claims expressed in my analysis), the events developed in these areas, far from calling for a reconsideration of constitutional theory, expressed the struggles of some political orders to adapt themselves to the paradigm of constitutionalism as exhibited by liberal democracies in Western Europe and North America.
Only in some Latin American experiences were there substantial reviews of the constitutional foundations of the State as such (and, particularly, as an exercise able to consider the involvement of the citizenry in the creation of fundamental laws). However, the arguable product of the mentioned constitutional experiments developed in places like Venezuela or Bolivia, surrounded by serious social conflicts and authoritarian turns, have had no other effect than casting all sort of doubts on any radical critique of the basic elements of the foundations of their constitutional democracies.
To sum up, the issue of the creation of constitutional democracies (and collaterally the issue of the constitution-making processes) has not been preeminent in theoretical discussion because the central constitutional tradition, depicted by the Western liberal democracies, has not had to deal with the prospect of new beginnings, following a major crisis, in decades. Some convulsions recently detected, such as the rise of populisms, the threats to the supranational integration processes, or the demands of secession in Western Europe, may force a revival of the debate around the creation of political orders and their legal translation.
At the time of writing these lines, it is still too soon to state if the illiberal wave engulfing some long-standing Western liberal democracies will have any impact in rethinking the legitimacy around constitutional foundation. It is also too soon to assess the constitutional consequences of the health, social, and economic crises unleashed by the Covid-19 pandemic in 2020. Either way, with some exceptions, current debates on the erosion of liberal democracy by the day-to-day developments of the constituted power will play a secondary role in my research. They shall only be examined as long as they are related, as I suspect that mostly they are, with the violence that originally blueprinted the constitutional system.