Founding Acts
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All democratic constitutions feature «the people» as their author and ultimate source of legitimacy. They claim to embody the political form that citizens are in some sense supposed to have given themselves. But in what sense, exactly? When does a constitution really or genuinely speak for the people? Such questions are especially pertinent to our present condition, where the voice of «the people» turns out to be irrevocably fragmented, and people themselves want to speak and be heard in their own voices. Founding Acts explores the relationship between constitutional claims of popular sovereignty and the practice of constitution-making in our pluralistic age. Serdar Tekin argues that the process of making a constitution, or its pedigree, is as morally and politically significant as its content. Consequently, democratic constitution-making is not only about making a democratic constitution but also about making it, as much as possible, democratically. Tekin develops two overarching arguments in support of this claim. First, citizen participation in the process of constitution-making is essential to the democratic legitimacy of a new constitution. Second, collective action, that is, the political experience of constructing public life together, is what binds diverse people into a democratic peoplehood. Bringing into dialogue a wide range of canonical and contemporary thinkers, Tekin examines historical realities extending from revolutionary America and France to contemporary South Africa and Germany.
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FOUNDING ACTS
Constitutional Origins in a Democratic Age
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In both of these versions, the paradox of democratic founding is a recurrent theme in contemporary political theory. It has been stated and analyzed by a variety of theorists working in different traditions.25 Despite the rich variety of interpretations, however, what runs like a red thread through these contemporary treatments is a skeptical gesture, according to which the idea of democratic founding is at best self-contradictory and hence theoretically unsustainable, and at worst a hegemonic fiction that conceals the arbitrary origins of political power.26 Edmund Burke once commented that “there is a sacred veil to be drawn over the beginnings of all governments.”27 Contemporary theorists prying into the paradox of democratic founding claim to draw aside this veil. Since the people themselves are never “the people” and hence unable to underwrite their constitution, we are told, the establishment of democratic autonomy is necessarily implicated in a heteronomous intervention, a moment of speaking in the name of a people that does not yet exist. As such, these theorists want to have us acknowledge the ways in which the making of the democratic constitution performatively contradicts the basic principles that it seeks to foster, and hence bring to our attention the crucial discrepancies between the normative foundations of constitutional democracy and its political origins.
A central agenda of this book is to engage in a critical dialogue with this “agonistic” line of interpretation. In doing so, my intention is not to dismiss the wide range of important issues that it brings to our attention. Viewed from an agonistic point of view, the paradox of founding is a potent motif that keeps us alert about the ways in which appeals to “the people” are inherently contestable, law may remain alien to its alleged authors, and the politics of founding may turn out to be a hegemonic enterprise which covers its own tracks. Without dismissing its merits, however, I argue that this line of interpretation is also prone to hypostatize the problem. What I mean by “hypostatization” is basically a strategy of problem statement, which directly transposes the formal or logical structure of the paradox onto the realm of political action.28 An essentially political issue is thereby turned into a logical puzzle, an insurmountable aporia or impasse, which rules out the notion of democratic founding at its core.
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