Neuhann, Esther Lea

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Constituent Power: A History of WhatExactly?Esther Neuhann 2020-12-20T11:00:11In her book Constituent Power: A History (2020), Lucia Rubinelli aims to provide ahistory of the “language” or, more precisely, the “words ‘constituent power’” (p.14).She narrates this impressive history along five historical key moments, fromEmmanuel Joseph Sieyès to Hannah Arendt.In the following, I will, first, comment on the methodology Rubinelli adopts throughoutthe book and, second, focus on the fifth historical moment “Arendt and theFrench Revolution” (Chapter 5). In this chapter, Rubinelli reconstructs Arendt’scritique of “sovereignty as a theoretical category and as a principle of politicalorganization” (p.177) and her suggestion to replace it with ‘constituent power’. It isan original contribution of the book to show that Arendt’s argument is in line with thesense in which Sieyès originally put forward ‘constituent power’ – although Arendtherself framed it as a critique of Sieyès which, according to Rubinelli, is rooted in herinaccurate reading of Sieyès through Carl Schmitt.MethodologyMy methodological remarks are divided into three parts. The first two concern theentire book, whereas the third focusses on Chapter 5. However, it will becomeapparent that the first two points relate to the more substantial queries regardingChapter 5.(a) As I have mentioned, Rubinelli aims to provide a history of the “language” and,more concretely, the “words ‘constituent power’”. Such a history of the languageof constituent power stands in contrast both to a history of the “idea” (p.16) and toa history of the concept of constituent power. However, Rubinelli only makes thedelineation from the history of the idea of constituent power explicit. But can thebook really be understood as a history of the words ‘constituent power’? At the veryleast, it also seems to be a history of the words ‘pouvoir constituant’ and ‘poterecostituente’. Or, what exactly does Rubinelli mean by ‘words’?(b) Relatedly, Rubinellis’s investigation is guided by her interest in the questionof “what the distinct contribution” of “the notion of constituent power brings tothe negotiation and systematization of the principle of popular power” (p.4). Twoquestions arise here: First, does the necessary relation between ‘constituent power’and ‘the principle of popular power’ that is implied by this guiding interest (see alsop.29) not point to a layer of a shared meaning, however thin, between the differentusages of the words ‘constituent power’? And, in turn, does this thin layer of sharedmeaning not indicate that Rubinelli is actually not merely interested in a history of thewords ‘constituent power’, but rather in a history of an encompassing idea or concept- 1 -of constituent power? Second, does Rubinelli consider her engagement with ‘theprinciple of popular power’, or simply ‘popular power’, in the book as an inquiry intothe concept, idea, or into the words of ‘popular power’?(c) In the Introduction, Rubinelli states that in her engagement with the first twohistorical moments she looks at the role that constituent power plays in “politicalhistory” and that she investigates its role in “political and legal philosophy” whenengaging with the last three historical moments (p.27). As a side note: SinceRubinelli is not interested in providing an analysis of the systematic role that‘constituent power’ plays with respect to other concepts in political and legalphilosophy – like ‘democracy’, ‘popular power’ or ‘justice’ – it seems to me that, inanalogy to the focus on political history in the first two chapters, the focus in the lastthree chapters is also on the history of political and legal philosophy. That beingsaid, the chapter on Arendt – being one of the last three moments – is accordinglyintended as an investigation into the meaning of the words ‘constituent power’ inArendt’s political and legal philosophy.Reading the Arendt-chapter with this in mind, I noticed the way that Rubinellicharacterizes Arendt’s own method: Rubinelli writes that “[a]lthough constituentpower plays a capital role in Arendt’s theory of politics, she never theorized itsmeaning and form systematically. This can be explained by the fact that constituentpower was, for Arendt, a concrete experience, a practice, and not an idea to betheorized and elaborated upon” (p.193). This sounds to me as if Rubinelli wasclaiming that it would actually be wrong to analyze Arendt as providing a philosophyof constituent power. Relatedly, Arendt’s critique of sovereignty (which gives rise toher account of constituent power) can, according to Rubinelli, be understood as acritique of a particular kind of philosophical perspective: “To a large extent, Arendt’santipathy towards sovereignty was motivated by its abstract and ideal character.Sovereignty was the result of the philosophers’ preference for solipsist speculationover concrete political action, which resulted in the substitution of political freedomwith individual control over oneself and over the course of one’s action – the freewill.” (p.192)A number of different layers between philosophy and politics can thus bedistinguished: i) Arendt’s philosophy (or other kind of theoretical engagement with)constituent power. How are we to understand what Arendt is doing?; ii) Arendt’scritique of philosophy; iii) the political circumstances of Arendt’s writing in theirrelation to Arendt’s theory of constituent power; iv) the political history Arendt isparticularly interested in, namely the foundation of Rome and the French andAmerican revolutions – again in relation to Arendt’s theory of constituent power; v)Rubinelli’s own authorial voice and how it relates differently to Arendt’s theory ofconstituent power than to, say, Sieyès’ usage of constituent power in the first chapter(as one of the two chapters in which Rubinelli looks at political history rather thanpolitical and legal philosophy). In Rubinelli’s view, how are these different layerssupposed to be related exactly?- 2 -Sovereignty, Constituent Power and Regular PoliticsRubinelli claims that from Arendt’s body of work we can distill a common threadof the critique of sovereignty that leads to Arendt’s alternative idea of constituentpower. Rubinelli engages with Arendt’s early writings from the 1930s, in whichArendt comments on “the ongoing international effort to find a homeland for theJews” (p.177), and her books The Origins of Totalitarianism (1951), The HumanCondition (1958), and On Revolution (1963).Let me start by presenting the bare bones of Rubinelli’s reconstruction of Arendt’scritique of sovereignty and her consequent account of constituent power. Whatis at stake in Arendt’s critique of sovereignty is the idea of the sovereignty of thepeople – not, say, the sovereignty of a monarch. However, Arendt’s critique of thesovereignty of the people can be formulated as the critique of the fact that thisconcept articulates political authority after the French Revolution analogously topolitical authority in a monarchy. Arendt is particularly critical of the equation of‘people’ with ‘nation’ in the idea of the sovereignty of the people. Arendt saw thisconcept of the sovereignty of the people – in which people equals nation – as key tounderstanding the “decline of the nation state” (p.180) in the totalitarian regimes ofthe first half of the 20th century. One important reason for this is that the “sovereigntyof the nation” is seen as somewhat more absolute than the “sovereignty of themonarch”. And this, in turn, is because: “the nation became both the source and therecipient of power” (p.181, emphasis added). This overlap between the source andthe recipient of power seems central to understanding the problems of sovereigntyand the difference between ‘sovereignty’ and ‘constituent power’ (see also p.199). Iwould like to invite Lucia Rubinelli to elaborate more on this.If we accept Arendt’s critique of sovereignty, in what sense can constituent powerserve as an alternative (On Revolution)? Arendt’s preference for constituent powerover national sovereignty corresponds to her claim that the French Revolution failedbecause the people did not participate in constituting the new order, whereas theAmerican Revolution was initially successful because the people actually exercisedtheir constituent power. But what does it mean to say that the people exercised theirconstituent power, or more generally, what does it mean for the people to exercisetheir constituent power in any historical moment? Rubinelli distills three features fromArendt (p.194f.):• (1) “[I]t [constituent power] can only be exercised when the founding act isimmanent” (p.194). This means that when constituent power is exercised, themoment of founding is not understood in relation to the prior will of the nation (cf.p.196) or anything else that transcends the practice of founding itself.• (2) The people, and not merely their representatives, must actually participate“[…] in the constitution-making process” (p.194).• (3) The third feature explains how this second feature may be realized.According to Rubinelli, Arendt argues that “[p]eople, organized in local councils,should discuss, deliberate and eventually adopt the constitutional text draftedand proposed by a committee created ad hoc.” (p.195) These are “practices ofdirect democracy rather than representation” (p.196).- 3 -The elaboration of what makes a process of founding successful – successful inthe sense of having been determined by the constituent power of the people – isfollowed by a discussion about the question of how it is supposed to ‘live on’ in the“regular working of politics” (p.199). Rubinelli again describes three institutionalelements of a political system in which constituent power ‘lives on’ according toArendt (pp.200–203):• (I) Such a political system must be a “federal regime, based upon decentralizedgovernmental structures, which reduce the delegation of power to aminimum” (p.200). This shows Arendt’s preference for council democracy overrepresentative democracy.• (II) Relatedly, such a system must be opposed to “Europeanparliamentarism” (p.202).• (III) Such a system must also display “instruments to incorporate politicalchange in the constitution without endangering its authority” (p.202). Accordingto Rubinelli’s reconstruction of Arendt, an example for such an instrument is theAmerican Supreme Court.With regard to the question of how constituent power may ‘live on’ in a politicalsystem, Rubinelli concludes that: “the people’s constituent power could be keptalive not only through the people’s participation in councils [feature (I), E.N.] butalso through processes of constitutional revision, enshrined in the Supreme Court’swork of augmenting the foundation [feature (III), E.N.].” (p.203) This conclusionleaves me a bit puzzled about the exact relationship between constituent powerand the three institutional features of a constituted order in which constituent powerlives on: In what sense is constituent power kept alive in councils (feature (I))?As Rubinelli states shortly after the passage quoted above, is this not more anexercise of popular power simpliciter (p.202, cf. p.205)? This leads me to a moregeneral question: How do constituent power and popular power relate (cf. thethird alternative narrative of the book, p.227f.)? Is constituent power a particularkind of popular power? More precisely, is constituent power popular power relatedto the founding or the change of constitutions, or does it also include, say, lessformalistic and/or radical or direct democratic elements of participation in constituteddemocracies? Or should the idea of constituent power pave the way to getting rid ofthe distinction between extraordinary politics and ordinary policymaking altogether(cf. p.220 on Negri and Hardt)?***At this point, the methodological questions (a,b) I raised at the beginning of mycomment resurface: Do we not need at least a pre-conception of the meaning ofconstituent power in order to write an intelligible history thereof? The pre-conceptionat work in this book seems to be that constituent power is in some specific senserelated to popular power or is itself a specific kind of popular power. But would it thennot make sense to include theories of this particular kind of popular power, even ifthey do not use the language of constituent power (e.g. verfassunggebende Gewalt),and to exclude certain usages of the words ‘constituent power’ as off-topic (e.g. the‘constituent power of a monarch’)?- 4 -- 5 -

Constituent Power: A History of What Exactly?

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Constituent Power: A History of What Exactly?

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