Читать книгу Founding Acts - Serdar Tekin - Страница 8

Chapter 1

Origins and Foundations

Two Features of the Modern Constitution

The concept of founding is closely related to a certain way of thinking about political community, one which has a longstanding pedigree in modern political theory. In this way of thinking, political association is first and foremost a human artifact, something deliberately made or created “from reflection and choice.”¹ Accordingly, in contrast to “ancient constitutionalism,” the constitution of the polity is not seen as an inheritance, a felicitous gift of time and tradition, but as a founding charter.² It is the work of a “constituent power,” and claims to express the deliberate will of the people. While this idea is familiar, it is by no means unambiguous. It points in two directions at once, referring us both to the origins of the political community and to the foundations it claims to rest on.

The term “origin” has an unmistakable temporal meaning which designates a starting point in time. It is about how the story begins and where we come from. From the vantage point of modern constitutionalism, founding in this sense amounts to the historically decisive act that creates a new constitution. Of course, this is not to say that political communities begin ex nihilo. The idea is rather that there are ruptures and new beginnings, which bring about new forms of political association and hence come to be marked as founding moments.³ Unlike the temporal meaning of “origin,” the term “foundation” conveys a primarily normative meaning, which is in turn colored by spatial metaphors: a place to stand on, a firm ground on which something else is built, a layer that lies beneath as a substratum. If origins are about where we come from as a community, foundations are about what makes us a certain kind of “we,” what our political association rests on, or what we take to be its ground. In the tradition of modern constitutionalism, this foundation or ground is typically understood in voluntarist terms, according to which political community depends on the will of citizens in their collective capacity as “the people.” Hence the foundational principle of popular sovereignty.

On the one hand, then, we have the temporal motif of a new beginning crystallized in the act of constitution-making. On the other hand, we have the normative motif of “the people” whose united will is claimed to be the matrix of the constitution. While both are characteristic features of modern constitutionalism, their relation to one another is nonetheless far from clear. According to an influential tradition in modern political theory, beginning with Hobbes and extending to the present day in various ways, these two motifs must be kept apart at a fundamental conceptual level. We are told that there is no substantial or theoretically demonstrable relationship between “origins” and “foundations,” between the way in which a constitution happens to be framed and its capacity to speak for the people. On this view, constitutional claims of popular sovereignty are to be vindicated not in terms of the pedigree of a constitution but in terms of its content. To quote a contemporary restatement: “Popular sovereignty is a feature of political regimes rather than something actually exercised prior to the establishment of political regimes. The question is not whether it was the people that created the state for itself by some original act but what the practice of authorization is like in the state, once it has been established.”⁴ In the present chapter, I challenge this view.

My contention is that such a neat distinction between origins and foundations turns out to be less and less tenable in the contemporary world as the counterfactual picture of a unified people speaking in one voice and acting on one will has become increasingly problematic. Accordingly, I argue that the foundational principles of a democratic constitution—including, most notably, popular sovereignty—must be performatively manifest in its origins, and that citizens themselves must be included in the making of the democratic constitution that claims to speak for them. On the view defended here, citizen consultation and participation in the constitution-making process is important both for normative reasons regarding the democratic legitimacy of a new constitution and for experiential reasons regarding the formation of democratic peoplehood. In what follows, to put these claims in some perspective, I begin with a detour in the history of political thought, visiting some early objections to the consent theory of political legitimacy and Kant’s attempt to counter those objections by means of a “hypothetical” account of popular sovereignty. A discussion on the limits and problems of hypothetical popular sovereignty will then bring us back to the central claim introduced above, allowing us to elaborate on it.

Popular Sovereignty in Question: Two Early Objections

A crucial problem that came up with full force in the context of the struggle between Royalists and Parliamentarians in the seventeenth-century England was the meaning of the term “people.” Did the term primarily refer to an empirical entity, an aggregate of flesh-and-blood individuals, or something more abstract, a single whole which was to be conceived along the model of a corporate body? Robert Filmer, the arduous proponent of the doctrine of the divine rights of kings, picked up on the former interpretation of the term, and suggested that it was impossible to rely on the people and their consent as the source of political legitimacy because the people were nothing but an ever-changing multitude. In a famous passage, he wrote: “For the people, to speak truly and properly, is a thing or body in continual alteration and change. It never continues one minute the same, being composed of a multitude of parts whereof divers continually decay and perish, and others renew and succeed in their places. They which are the people this minute, are not the people the next minute.”⁵ With a twist of argument which is not rare in the history of political thought, however, what seemed to Filmer as the fatal weakness of an appeal to the people turned out to be a stepping-stone for its proponents. According to the Parliamentarians, it was precisely because the people themselves were never and could never be present as such that they stood in need of representation, and this was what the Parliament was basically all about. The idea was that the people were present as a corporate body in and through the Parliament and therefore the consent of the latter counted as the consent of the former.⁶

In Filmer’s view, however, a move of this sort was far from satisfactory. He thought that such an argument undermined the rationale of invoking the people in the first place and hence attested to the inner contradictions of a consent theory of political legitimacy. So, he pushed the point: “If it be answered, that it is impossible to stand so strictly as to have the consent of the whole people, and therefore that which cannot be must be supposed to be the act of the whole people; this is a strange answer, first to affirm a necessity of having the people’s consent, then to confess an impossibility of having it.”⁷ Once the people is taken to be a corporate body rather than an aggregate of flesh-and-blood individuals, Filmer rightly observes, consent itself turns out to be hypothetical. Nor is this the sole problem. Filmer continues: “If but once that liberty [i.e., the right to consent]—which is esteemed so sacred—be broken or taken away but from one of the meanest or basest of all the people, a wide gap is thereby opened for any multitude whatsoever that is able to call themselves (or whomsoever they please) the people.”⁸ On the one hand, urging his opponents that they are on a slippery slope, Filmer’s rhetoric is meant to play on the gentlemen’s fear of the multitude. On the other hand, and beyond this rhetorical move, he perceptively points out a permanent problem of all democratic politics. If the actual consent of each and every individual is impossible to achieve, then, who is entitled to speak in the name of “the people”? And how do we—or can we ever—adjudicate between competing claims of representation?

Although we cannot further pursue here the historical unfolding of the argumentative battle between Royalists and Parliamentarians, it is important to note that, regardless of the rival claims about the proper locus of representation, a crucial effect of the entire debate was to entrench the notion of “the people” as designating an abstract and corporate entity alongside the concrete and natural body of an ever-changing multitude.⁹ As we will see in a moment, this has been crucial for the development of philosophically more sophisticated accounts of popular sovereignty such as Kant’s. If the people is envisioned as a corporate body rather than an atomistic aggregate of individuals, then it makes sense to speak of it as the matrix of common or generalizable interests that are putatively shared by everyone no matter what their differences might be in other respects. Before turning to Kant, however, it is worth taking a moment to consider a different kind of challenge to the consent theory of political legitimacy.

This other challenge came from David Hume. Unlike Filmer, Hume did not attack the idea of consent in the name of the divine rights of kings. He admits that “consent is one just foundation of government where it has place,” and “it is surely the best and most sacred of any”—the problem is rather that “it has very seldom had place in any degree, and never almost in its full extent.”¹⁰ States are ordinarily established by force and violence, Hume observes, not through consent or voluntary association. “Almost all the governments, which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any pretence of a fair consent, or voluntary subjection of the people.”¹¹ While in an already established state, “in a settled constitution,” people’s inclinations are occasionally taken into consideration, Hume further observes, “were one to choose a period of time, when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government”—that is to say, it is precisely in founding moments, “during the fury of revolutions, conquests, and public convulsions,” that consent is systematically disregarded and “military force or political craft usually decides the controversy.”¹²

These may seem as merely descriptive claims about the historical origins of political order. Yet Hume’s point is more subtle than it seems at first sight. He intends to suggest that historical origins of political order should not be viewed as irrelevant to the ways we make sense of its moral foundations. Political legitimacy (on the part of government) and political obligation (on the part of the people) do not actually rest on consent. The fact that states have originated in violence and attained legitimacy over time points toward a ground other than popular consent or voluntary agreement. According to Hume, to grasp this other source of legitimacy, one needs to inquire into habit and utility, into “the general interests and necessities of society,” into how “time and custom give authority to all forms of government” and how “power, which at first was founded only on injustice and violence, becomes in time legal and obligatory.”¹³

In drawing our attention to the gradual growth, via custom and utility, of a sense of legitimacy from a violent origin, Hume also touches on the retrospective justification of unjust beginnings in the imagination of present generations, thereby bringing up, at least by implication, the issue of the obliteration of founding violence. Consider the following passage: “Tho’ the accession of the Prince of Orange to the throne might at first give occasion to many disputes, and his title be contested, it ought not now to appear doubtful, but must have acquir’d a sufficient authority from those three princes, who have succeeded him upon the same title. Nothing is more usual, tho’ nothing may, at first sight, appear more unreasonable, than this way of thinking. Princes often seem to acquire a right from their successors, as well as from their ancestors.”¹⁴ The strange condition mentioned by Hume—that of a prince acquiring a title from his successors—is by no means peculiar to monarchy but applies to every founding act, including those with a democratic claim. In this respect, his remark about the Prince of Orange intriguingly resonates with Jacques Derrida’s reflections on the retrospective justification of revolutionary violence: “All revolutionary situations … justify the recourse to violence by alleging the founding, in progress or to come, of a new law. As this law to come will in return legitimate, retrospectively, the violence that may offend the sense of justice, its future anterior already justifies it.”¹⁵ Derrida makes this point in the context of a discussion about the paradox of founding, which we will explore at length in Chapter 2.

The Founding Act of the People as an “Idea of Reason”: Kant

One way to counter Filmer’s and Hume’s objections to the consent theory of political legitimacy is to offer a “hypothetical” account of popular sovereignty. In this kind of argument, the stress is not on the actual consent of the people but on what the people would consent to if they were to act on good will and right reason.¹⁶ In other words, “the people,” understood as a corporate body acting on a unanimous will and speaking in a single voice, is not an empirical reality and does not need to be. Rather, it is a vision of political legitimacy, a normative idea, according to which all political power comes from the united will of citizens and therefore ought to be structured in terms of the equal freedom and generalizable interests of everyone. This hypothetical conception of popular sovereignty is most systematically developed by Kant.

Speaking from within the contractarian tradition, Kant presents the founding act of the people as the “original contract,” while at the same time urging that this contract should not be taken as a historical event: “as a fact it is indeed not possible,” he notes, “it is instead only an idea of reason.”¹⁷ Or as he puts it elsewhere in a more systematic fashion: “The act by which a people forms itself into a state is the original contract. Properly speaking, the original contract is only the idea of this act, in terms of which alone we can think of the legitimacy of a state. In accordance with the original contract, everyone (omnes et singuli) within a people gives up his external freedom in order to take it up again immediately as a member of a commonwealth, that is, of a people considered as a state (universi).”¹⁸ Kant’s point is that the normative structure of the state, as a public order in which coercive power ought to be compatible with and justifiable in terms of individual freedom, makes sense only in light of the notion of self-determination—that is, the idea of a sovereign people placing themselves under a self-legislated law. This does not mean that citizens ought to be the actual authors of their constitution, but that actual legislators and constitution makers (whoever they happen to be) ought to give their laws “in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will.”¹⁹ Hence the main point of Kant’s claim: the founding act of the people is an “idea of reason.”

By presenting the original contract in this way, Kant aims at two things at once: to disentangle the concept of popular sovereignty from the troublesome problem of demonstrating actual consent, and to counter what he takes to be the historicist misunderstanding of the social contract theory such as Hume’s claim that states are ordinarily founded through force and violence, and not through consent or voluntary agreement. Kant admits the historical unreality of a consensual act of foundation, but does not regard this as a refutation of contractarian arguments. He can easily afford to do so because the original contract is an “idea of reason,” which has nothing to do with actual consent and the kind of historical contingencies that Hume is keen to highlight. What makes this solution work, however, needs to be spelled out more clearly.

Kant draws a clear distinction between the actual origins of the state and the normative foundations according to which its legitimacy is to be understood. In a sense, this distinction was already established by Hobbes in the Leviathan. According to Hobbes, even though “there is scarce a commonwealth in the world whose beginnings can in conscience be justified,” there nevertheless exists no de jure difference between a “commonwealth by institution” and a “commonwealth by acquisition.”²⁰ That is to say, political authority may have been established as well through force and conquest (“acquisition”) as through contract (“institution”) because “the rights and consequences of sovereignty are the same in both.”²¹ Kant follows Hobbes on this score. “Whether a state began with an actual contract of submission (pactum subjectionis civilis) as a fact, or whether power came first and law arrived only afterward, or even whether they should have followed in this order,” he maintains emphatically, “for a people already subject to civil law these subtle reasonings are altogether pointless.”²² The basic idea is that there is a sharp distinction to be drawn between “origins” and “foundations,” between the way in which a political community happens to be established and the normative principles that it is supposed to rest on. While the former is a “question of fact” regarding historical contingencies which may unfold in all sorts of ways, the latter is a “question of right” regarding principles—and no matter what, the two should not be conflated.

With regards to the “question of right” under consideration, however, Kant substantively disagrees with Hobbes, and takes issue with what we might call the private will model of the social contract theory. That political authority rests on our consent and that we are obliged to abide by it on account of our own will has been the point of contractarian arguments from Hobbes onward. Kant thinks that there is something deeply unsatisfactory in this idea: how can the consent of private individuals, each of whom after all acts on his own particular will, produce a public authority? The issue at stake is not simply a matter of enforcement as Hobbes would want to have us believe when, for example, he famously maintains that “covenants without the sword are but words.”²³ For Kant, there is a deeper issue at stake, and it is one of perspective.

The fundamental distinction between private will and public authority is that while the former indicates a partial (or unilateral) point of view, the latter is by definition bound to proceed from an impartial (or omnilateral) one.²⁴ A contractarian theory representing the state as the product of an agreement between private wills is defective as a way of understanding the normative structure of the state because a coalition of partial perspectives, no matter how inclusive and voluntary such coalition might be, does not in itself add up to impartiality. This is precisely why Kant argues—strictly following Rousseau on this point—that public authority could only be based on the united will of “everyone (omnes et singuli) within a people.” A united will of this sort, in its turn, requires each person (singuli) to take the perspective of the whole (omnes) and thereby to adopt an impartial point of view. Thus, in the Kantian framework, the original contract does not so much stand for a hypothetical act of promise making. Rather, it is first and foremost a hypothetical act of perspective taking. It is meant to articulate what everyone would consistently agree to if each of them were to take the standpoint of the whole.

On this view, then, to express it in the language of consent, public authority is legitimate and compatible with freedom not because we give our consent to it whether explicitly or tacitly, but because it is worthy of our consent on account of the impartial perspective from which it is structured.²⁵ Accordingly, constitutional claims of popular sovereignty do not rest on the people themselves. They are anchored in the hypothetical voice of the people, which speaks in terms of generalizable interests alone, thereby setting the rational principle of public law as such. In this way, Kant claims to have countered the aforementioned objections made by Filmer and Hume.

What Is the Problem with Hypothetical Popular Sovereignty?

This hypothetical conception of popular sovereignty has nonetheless become deeply problematic in the contemporary world. To give an overview of the problem, I want to distinguish between three ways in which it comes in for criticism. Let me call them “philosophical,” “deliberative,” and “pluralist” objections, respectively. The philosophical objection has to do with the metaphysical background against which hypothetical arguments are justified. In the Kantian scheme, the impartial perspective from which a “civil constitution” ought to be framed is not something we achieve ourselves in the real world through opinion exchange and political debate, through contestation, deliberation, and persuasion. Rather, it is already there, objectively and universally, set by practical reason alone in an a priori fashion. It is claimed to be accessible to all rational beings in the same way.

This means that the “original contract” designates a criterion of legitimacy which transcends all time and place. In Kant’s telling formulation, it is a “Platonic ideal (respublica noumenon), which is not an empty figment of the imagination, but the eternal norm for all civil constitutions whatsoever.”²⁶ A claim of this sort, however, is of course notoriously resistant to proof like all arguments about “first principles,” “natural law” or “self-evident truths.” Insofar as they appeal to an independent order of verification, which is beyond and above our temporal reality, such arguments are met with profound skepticism today. This is why prominent neo-Kantians such as Rawls and Habermas opt for, in their own ways, a philosophical program of intersubjective validation instead of a metaphysics of practical reason.

Hypothetical accounts of popular sovereignty come in for further criticism from a deliberative point of view. Notice that, for Kant, the legitimacy of public law is not related to what real citizens actually have to say on the subject of their constitution, on the forms and principles of their own political organization. Legitimacy is detached from the deliberative agency of citizens at a fundamental conceptual level, and tied instead to a formal test of consistency: “if it is only possible that a people could agree to it,” Kant writes, “it is a duty to consider the law just, even if the people is at present in such a situation or frame of mind that, if consulted about it, it would probably refuse its consent.”²⁷ While the hypothetical voice of the people, speaking in terms of generalizable interests alone, sets the rational principle of public law as such, the actual voices of the people are stripped of their constituent capacity.

It is important to realize that this problem applies to all models of hypothetical agreement whether or not they rest on metaphysical assumptions. Rawls’s “original position” is a case in point.²⁸ Unlike the Kantian “original contract,” the Rawlsian model does not involve any transcendental grounding. However, it leads to a similar deficit insofar as rational agreement is not the outcome of actual deliberation but a function of the theoretical design of the original position. This is one of the central challenges posed by Habermas in his critical encounter with Rawls. Consider the following remark:

From the perspective of the theory of justice, the act of founding the democratic constitution cannot be repeated under the institutional conditions of an already constituted just society, and the process of realizing the system of basic rights cannot be assured on an ongoing basis. It is not possible for the citizens to experience this process as open and incomplete, as the shifting historical circumstances nonetheless demand. They cannot reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place within the theory; and they find the results of the theory already sedimented in the constitution.²⁹

At a fundamental conceptual level, Habermas’s criticism turns on the meaning of political autonomy. “Citizens are politically autonomous only if they can view themselves as the joint authors of the laws to which they are subject as individual addressees.”³⁰ By severing constitutional essentials from actual processes of political will-formation, however, Rawls’s hypothetical model brings a substantive limitation to the quest for political autonomy. Consequently, as the Rawlsian “veil of ignorance” is raised step by step, citizens “find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control.”³¹ There is a sense in which models of hypothetical agreement are inherently prone to compromise the promise of political autonomy.

Finally, in the contemporary world, hypothetical conceptions of popular sovereignty face the further challenge of pluralism. In an age of cultural diversity and struggles for recognition, the counterfactual picture of “the people” speaking in a single voice has increasingly come in for criticism as a hegemonic vision of political community, one which is imposed on a diverse population. Accordingly, statements in the name of “we the people” are claimed to be inherently difference-blind, to ignore diversity and heterogeneity, while at the same time fostering partial interests, particular conceptions of the good and dominant ways of life under the guise of cherished democratic ideals. Of course, this is not to say that the people don’t speak. The point of the matter is rather that they speak in a plurality of voices—and crucially, everyone wants to be heard in her own voice.

This poses a pressing problem for contemporary democratic theory. If there is no “we the people” speaking in a unified voice, or if the voice of the people is more like a cacophony than a symphony, then what do we make of constitutional claims of popular sovereignty? Or, to put it differently, how can we account for the democratic legitimacy of a new constitution if there is no privileged and uncontestable vantage point from which to discern the supposedly “real voice” of the people? Simone Chambers sums up the problem succinctly: “on the one hand, we need a ‘people’ to be able to speak as one to fulfill the voluntarist aspirations of modern constitutionalism; on the other hand, creating a ‘people’ through assimilation and verbal fiat now appears to violate the very same democratic or voluntarist aspirations.”³²

The Normative and Experiential Significance of Founding Moments

Thus far, using Kant’s argument about the “original contract” as the foil of discussion, I have looked at some contemporary objections to the hypothetical conception of popular sovereignty. It is now time to ask what follows from these objections. One important conclusion I want to draw is that the inclusion of the “people themselves”—that is, the people in their diversity and plurality, as well as in their embodiment and their empirical singularity—in the constitution-making process is essential to the democratic legitimacy of a new constitution. We live in a world where the abstract picture of a united people speaking in one voice has been irrevocably fragmented, where arguments about what everyone would agree to if they were rational and acting on good will turn out to be deeply controversial, and where democratic legitimacy can no longer be categorically severed from actual democratic agency. This point has a further corollary, which is of particular importance for our present purposes: the distinction between “origins” and “foundations” cannot remain intact under such circumstances. We can no longer draw a sharp line between the pedigree of a democratic constitution and its substantive content, between the way a political community happens to be established and the principles that it claims to rest on. To redeem their democratic credentials, in other words, constitutional claims of popular sovereignty must have a strong foothold in what the people themselves actually have to say in their own voices on the forms and principles of their own political organization.

To avoid misunderstanding, nothing I say here is meant to suggest that inclusion or participation is a magic stick in and of itself. The quest for a genuinely democratic act of constitution-making—in the sense of an inclusive and participatory exercise of popular sovereignty—is subject to conceptual paradoxes and practical limitations, as we will see in the following chapters. Nor do I suggest that the authorship of the constitution is or must be taken as the sole criterion that determines its legitimacy. Obviously, such an approach to the question of constitutional legitimacy, stressing the importance of pedigree and authorship, is inherently ill-equipped to account for what makes the constitution binding over time or what makes it binding for future generations.³³ At the moment, I just intend to highlight one single point: given the problems of a hypothetical account of popular sovereignty, and given the significant changes that have taken place in our notions of what it means for the people to speak, the “how” of constitution-making must be regarded as equal in importance to the “what” of the constitution itself. Or to put it in slightly different terms, the guiding principles of the democratic constitution must be performatively manifest in its making. This offers us one kind of reason, a normative reason, regarding the importance of founding moments for democratic theory.

Arguably, the stress that I have been placing on founding moments may seem to stand in tension with the dynamic and open-ended character of a democratic constitution. A constitutional settlement is always provisional and fallible in principle, and hence open to contestation, interpretation and revision. One might therefore suggest that we need to think of democratic self-determination not so much along the model of an episodic founding act taking place at one crucial moment, but rather in terms of an ongoing process that extends over time.³⁴ This dynamic or process-based approach to constitutional democracy, one might further argue, requires a corresponding shift in our conception of political legitimacy. In a recent article, Christopher Zurn presents an argument precisely to this effect. “A governmental system is legitimate,” he claims, “to the degree to which its political processes, institutions, and laws provide good evidence that it has instantiated and will continue to instantiate the project of constitutional democracy in a dynamic, self-correcting, and thus progressive manner.”³⁵ On this view, according to Zurn, “the origins of a polity are irrelevant in a significant sense: legitimacy is not a matter that can be settled by looking at the pedigree of a political system.”³⁶ What matters is not how the project of constitutional democracy gets off the ground but rather how it moves on: whether it keeps going in such a way as to progressively realize its own guiding aspirations. “Judgments of legitimacy are thereby constitutively severed from the who and the how of a polity’s founding—what matters is what was thereby put into motion.”³⁷

I do agree that it is important to view constitutional democracy as a work in progress, a dynamic and open-ended enterprise, which moves on through practices of deliberation and contestation, trial and error, self-correction and piecemeal transformation. In my view, however, a process-based approach along these lines neither requires us to drop the question of founding nor rules out its significance. After all, how plausible is it to divorce judgments of legitimacy, completely and severely, from considerations of authorship, especially in the case of a new constitutional order?

Zurn seems to think that in assessing the legitimacy of a new constitution we must exclusively focus on its content and we must do so in a specifically prospective or forward-looking fashion, say, by looking at “how likely its political processes, institutions and laws are to lead to achieving and reflexively developing the project of the realization of constitutional democratic ideals.”³⁸ However, just as hypothetical arguments about what everyone would agree to if they were rational cannot replace actual deliberation, conjectural judgments about how likely it is that the structural features of a new constitution would enable a democratic process in the future cannot substitute for the kind of legitimacy stemming from practices of opinion- and will-formation at present. It is important to emphasize the open-ended nature of constitutional democracy as a work in progress not because authorship does not matter, but because no author, including the people themselves, can claim to achieve a once and for all constitutional settlement at a single point in time.

Apart from the issue of original legitimation, there is yet another reason why founding moments matter: how the project of constitutional democracy gets off the ground would make a good deal of difference with regards to its future prospects. To get a better grasp of this point, it helps to consider what actually makes constitutional democracy an open-ended project in the first place. In my view, a dynamic constitution is not simply a revisable or amendable constitution. Beyond and above this rather formal requirement, a dynamic constitution is supposed to set in motion a democratic process, while at the same time standing in relation to it in a responsive manner—so that new interpretations, new meanings, and new stories of citizenship would be grafted on to the constitution as the political community keeps changing. For this to happen, however, the constitution must take root in political culture. That is to say, it must belong to citizens not only in a formal sense (say, as the law of the land), but also and more importantly in an experiential sense (say, as their own law).

The pedigree of a constitution, I want to stress now, matters a great deal in terms of what the constitution means to citizens in this experiential sense. After all, supposing that we are talking about the founding generation and not later generations, when does a new constitution become our own? How do we come to claim a joint ownership in it in our capacity as citizens? Especially at moments of foundation, when new constitutional orders are in the making, this is not only a matter of content, but as much depends on whether or to what extent the process of framing the constitution itself is experienced as a joint enterprise. To put it the other way, so long as citizens themselves are not included in the practice of constitution-making in the right way—or worse, if they are not consulted at all—one can hardly expect them to recognize themselves in the outcome and take it as an expression of their own will in some stepped-up, amplified sense. Getting all the “right stuff” in the text of the constitution would make little difference in this respect, which is not to say that content does not matter for other important reasons. The point is rather that the “how” of a constitutional founding shapes our relation to the constitution—and our self-understanding as a political community at large—in ways that cannot be reduced to or fully compensated by considerations about the “what.” Alongside normative reasons regarding the original legitimation of a new constitution, then, there are also experiential reasons as to why founding moments should matter for democratic theory. The kind of political experience that marks the making of a new constitution is important because it makes a difference in its meaning to us and in its prospects of taking root in political culture over time.

Democratic Regimes with Undemocratic Beginnings

I have been arguing that, from the standpoint of democratic theory, how constitutions are made (their pedigree) is as important as what they are made of (their content). Before concluding this chapter, let me address a forceful objection to this claim—an objection based on the case of successful democracies that have obviously undemocratic constitutional beginnings. Christopher Zurn poses the challenge in a clear way: “Consider, as examples, the Allies’ virtual imposition of the German Basic Law and the Japanese Constitution after the end of World War II. Arguably both constitutions have both the requisite conceptual content to count as legitimate constitutional democracies and the historical record of having sustained constitutionally successful and democratically decent political practices and institutions for some sixty years. Might even such successful constitutional democracies be illegitimate in light of their nondemocratic origins?”³⁹

Admittedly, the short answer—my short answer—to such a question is “no.” A constitution which was not made democratically in the first place may indeed come to be embraced and regarded as democratically legitimate over time. The German Basic Law and the Constitution of Japan are good cases in point. Today, they can be said to bear democratic legitimacy precisely because generations of citizens have gradually appropriated these documents and made them their own constitutions in and through a long process of application, interpretation and reinterpretation (hence the “historical record” of “some sixty years”). However, notice that we can make a legitimacy judgment of this sort only in retrospect. What is the extent to which (and the ground on which) one can prospectively make such a judgment? After all, there is a difference—one would say a crucial difference—between looking backward and looking forward, between saying that an undemocratically adopted constitution has already become legitimate over time (a retrospective judgment) and would perhaps become legitimate in the future (a prospective judgment).

This difference is already reflected in the fact that, acting prospectively in 1949, the framers of the German Basic Law named it a “basic law” (Grundgesetz) and not a “constitution” (Verfassung) in the proper sense. As Donald Kommers rightly observes, they “did not want to bestow the dignified term ‘constitution’ on a document drafted to govern a part of Germany for a transitional period.”⁴⁰ The Basic Law was considered “transitional” in two major ways. First, as Germany was divided at the time, the framers thought that a proper constitution would have to be adopted upon unification. Secondly (and for our discussion more importantly), the Basic Law was framed and enacted under the circumstances of postwar occupation, and hence lacked the kind of democratic legitimacy that the exercise of popular sovereignty alone could have bestowed on a new constitution. “The framers were looking forward to a time when Germany would be whole, not only in the physical sense of being unified, but in the moral/political sense of being a fully democratic society.”⁴¹

Indeed, the framers clearly expressed in the Preamble both of these concerns by stating that the Basic Law was meant to “give a new order to political life for a transitional period,” while at the same time calling upon “the entire German people … to accomplish, by free self-determination, the unity and freedom of Germany.” Even more emphatically, the text ended with the famous Article 146, which read: “This Basic Law shall become invalid on the day when a constitution adopted in a free decision by the German people comes into force.” Of course, when the prospect of a unified Germany ceased to be a remote hope and suddenly became a real possibility in 1989, the once transitional Basic Law had already grown into a real constitution and already assumed the “character of a document framed to last in perpetuity.”⁴² Thanks to several decades of democratic experiment, the Basic Law was now firmly rooted in the political culture of Western Germany and widely regarded as a legitimate constitution, notwithstanding its undemocratic beginnings.⁴³

As I see it, there are two basic lessons to be drawn from the German case. First, an undemocratically enacted constitution may come to acquire democratic legitimacy over time. Secondly, as the framers of the Basic Law were keenly aware, this does not change the fact that there was a legitimation deficit at the beginning. Based on these two premises, I think, we can plausibly conclude that how democracy gets off the ground should be a matter of concern for democratic theory even if the deficit of original legitimation is not in principle irreparable and constitutions may also gain democratic legitimacy in retrospect. Let me deploy an analogy here. We all know that children can overcome bad starting points in life; but none of us would therefore think that, just because it is possible for them to overcome bad starting points in life, what has happened in their childhood is irrelevant or does not matter. Much better, naturally, if they had had supportive and flourishing childhoods. In line with that analogy, I therefore argue that democratic theory would be well-advised to attend to the “how” of constitution-making (the genesis or “childhood” of nations) in addition to the “what” of the constitution itself.

Finally, we also need to consider that the failures of democratic constitution-making can produce lingering problems as well. The Canadian Constitution Act of 1982, which was brought to pass without Québec’s consent, would serve as a good example here. Strictly speaking, it was not an act of making a new constitution from scratch because most of the 1867 constitution was retained intact. Nevertheless, it was a founding act of sorts since it created, symbolically and legally, a new constitutional order: first, by patriating the existing constitution; and second, by supplementing it with a charter of rights and freedoms.⁴⁴ As such, the act was meant to entrench the pan-Canadian vision of an independent nation built on the equality of citizens and provinces. All this, however, was done despite Québec’s grievances. “The government of Québec,” James Tully tells us, “argued that the Charter constituted an imperial yoke over Québec’s distinctive French-language and civil-law culture, forged through centuries of interaction with English-language Canada, and that it needed to be amended to recognize Québec’s cultural distinctiveness.”⁴⁵ But no such amendment took place, and the Constitution Act was brought to pass without getting on board the second largest province in the country—and this in spite of the fact that the constitution itself stipulated unanimous consent among provinces for any major or structural amendment in the future.

Now, let us reconsider the issues of “who,” “how” and “what” in light of this example. What was put into motion by the Canadian Constitution Act of 1982? How was it put into motion? And by whom? Basically, the act endorsed a constitutional democratic system with a strong emphasis on individual rights and the political equality of the provinces. As such, there was no plausible evidence against the generic or abstract presumption that it was meant to carry on—to use Zurn’s wording—“the project of constitutional democracy in a dynamic, self-correcting, and thus progressive manner.” And yet, this did not suffice to make it legitimate or worthy of consent for many citizens of Québec. They perceived it as a specific interpretation of the constitutional democratic project, one that is deeply individualistic and pan-Canadian in spirit, and hence unresponsive to Québec’s claims for cultural recognition.⁴⁶ Québec already had a problem with the proposed content of the Constitution Act, but the way it was brought to pass (i.e., the dimension of “how”) added conspicuous insult to possible injury. Instead of seeking a resolution that was acceptable to all parties, the federal government decided to move without Québec’s support—a decision that brought about deep resentment in the province and fueled separatist feelings.⁴⁷ Excluded from the table, many citizens of Québec were not in a position to view themselves among the possible owners of the constitutional project and become attached to it as their own constitution. As a result, the constitution was not only grafted onto a fragmented “who,” but the way in which it was grafted led to deeper fragmentation.

* * *

This chapter opened with a simple observation about two characteristic features of the modern constitution: that it is the product of a deliberate founding act, and that it claims to rest on “the people.” While the former refers us to the “origins” of the political association, the latter brings to our attention its “foundations.” My contention is that, from the standpoint of democratic theory, these two motifs can no longer remain isolated from each other. The normative foundations of the democratic constitution must be performatively manifest in its origins. In other words, the people themselves must be included in the making of the constitution which claims to speak for them.

In the view presented here, this is important for two main reasons. The first one is a normative reason regarding the legitimacy of a new constitution. Under contemporary conditions, hypothetical arguments bypassing the actual voices of citizens inevitably lead to a democratic deficit. As our notions of what it means for “the people” to speak have undergone a significant transformation toward a pluralist and deliberative direction, the “who” and the “how” of a constitutional founding have increasingly become important markers of democratic legitimacy. The second reason might be called experiential in that it emphasizes how the experience of constitutional founding shapes our relation to the constitution, its meaning to us as citizens, and, by extension, the very meaning of citizenship itself. On this register, “origin” is a matter of concern because the way a constitution gets off the ground affects its capacity to become an object of identification, to take root in political culture, and to stand in a productive relation to the people as they keep changing. A constitution can open itself up to the future as a living project to the extent that it belongs to “us” in this experiential sense.

Thus far, then, our argument has spotted the idea of democratic founding and made a preliminary case as to why it matters. However, we have not yet said anything about how the people could actually get to underwrite their constitution. For example, are we to think of democratic constitution-making along the model of a full, actual, communicated consensus among literally all citizens? And if the answer is no, for practical limitations that should be obvious enough, then how are we supposed to make sense of it? This is a question to which we will keep returning throughout the following chapters, and the answer will emerge step by step. But there is also the related and logically prior question of whether a genuinely democratic act of constitution-making—in the sense of an inclusive and participatory exercise of popular sovereignty—is conceptually possible in the first place. Here, the worry is that the very idea of democratic founding is packed with a colossal paradox. I take up this paradox and its implications in the next chapter.