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Chapter 2

The Paradox of Democratic Founding

Canonical Statements and Contemporary Perspectives

It is today a commonplace that a constitution is not simply a mechanism for restraining the power of government and securing the rights of citizens. From a democratic point of view, a constitution is at the same time an instrument or better yet a medium of self-determination. It is meant to set up the enabling conditions by means of which citizens would come to form and express something like a common will, consider themselves as the joint author of the laws, and steer the course of their political destiny. However, this enabling function of the constitution brings home to us a taxing problem, one which is peculiar to democratic theory: how can the citizens, in their collective capacity as “the people,” underwrite their constitution, namely the law of making laws, if the conditions of democratic will-formation, necessary to carry out such an act, are to be established by the constitution itself? It seems that the idea of constitutional founding by the people presupposes what it sets out to accomplish in the first place, thereby sending us into a dizzying circularity. This is the paradox of democratic founding in a nutshell. The present chapter aims to explore it in detail.

Depending on how one conceives the fundamental conditions of democratic will-formation, the paradox of founding can be stated in two different ways: substantively (as a matter of ethos) and procedurally (as a matter of institutional forms). While the former version goes back to Rousseau’s The Social Contract, the latter finds its expression in the classical texts of the American and French Revolutions, most notably in The Federalist No. 40 by James Madison and “What Is the Third Estate?” by Emmanuel Sieyès. In what follows, as a first step in the analysis of the paradox of democratic founding, I begin with these canonical statements.

We will then consider two contrasting interpretations. For some, the paradox under consideration is after all a trivial issue. It arises from a category mistake regarding the meaning of the term “people,” and more specifically from a misguided application of the principle of popular sovereignty. Hegel defended such a view, and its versions are held today by some prominent theorists of constitutional democracy. Others, by contrast, see the paradox of founding as a fundamental aporia, an insurmountable impasse, one that impugns all democratic politics and tangles it up in ever self-repeating vicious circles. In order to examine this latter view, we will engage with a diverse group of theorists, including Jacques Derrida, William Connolly, Bonnie Honig, and Frank Michelman.

For reasons that will become clear, I take issue with both these positions. While the former dismisses the paradox of founding without seriously taking into account its implications for democratic theory, the latter turns the problem into a “chicken-and-egg” kind of puzzle and hence forecloses its negotiation. In contrast to both approaches, the present chapter concludes with an alternative proposal. We would be well-advised to take the paradox of democratic founding neither as a category mistake nor as an insurmountable impasse, but as a heuristic problem, one which leads us into the gray area where the conditions of democratic peoplehood are in the making.

Ethos and Procedure: Two Canonical Versions of the Paradox

In Book II, Chapter 7 of The Social Contract—namely, the famous section on the lawgiver—Rousseau articulates the paradox of founding: “For a nascent people to be capable of appreciating sound maxims of politics and of following the fundamental rules of reason of state, the effect would have to become the cause, the social spirit which is to be the work of the institution would have to preside over the institution itself, and men would have to be prior to laws what they ought to become by means of them.”¹

The key notion in the passage is the “social spirit.” Basically, it indicates a sort of civic ethos, or a shared orientation toward the common good. For Rousseau, such an orientation is essential to the functioning of a self-legislating political community, in which law arises from the general will of the people. The formation and exercise of the general will, in turn, are based upon the capacity of citizens to take a broader standpoint than the counsels of self-interest. Instead of sticking to the narrow perspective of their particular interests, citizens must be able to place the common good at the center of their political considerations. Notice that this capacity has both a cognitive and a motivational side. That is to say, citizens must both see the common good and actively will it. According to Rousseau, the right kind of ethos, the “social spirit,” is of crucial significance precisely because it brings together these two aspects—insight and volition, reason and will—thereby providing the citizens with an embedded understanding of the common good. Penetrating deep into their dispositions, habits, and emotions, such an embedded understanding of the common good is the lifeblood of a self-legislating political community.

This is where the paradox of democratic founding comes in. If a “nascent people” are to organize themselves into a self-legislating political community, the social spirit must have been somehow operational beforehand. For the people to make the right kind of laws, expressive of the general will, the right kind of ethos must be already in place. And yet, Rousseau observes, an ethos of this sort would only flourish in an already existing and functioning republican society. It is by virtue of good laws that citizens are educated to take a principled standpoint and habituated to attach themselves to the common good, while at the same time learning how to confine and accommodate their private interests within its boundaries. This leads to the question of whether the people can carry out the first—in fact, the most important—act of self-legislation, namely, the making of the republican constitution, if the kind of ethical dispositions required to perform this act are to develop under republican laws and institutions. It seems that for the people to underwrite their own constitution, as Rousseau puts it, “the effect would have to become the cause,” and the morals to be shaped by the constitution would have to precede its making.

According to Rousseau, there is but one escape from the paradox of founding. Only the formative and educative efforts of a “great lawgiver” can save the people from the vicious circle of democratic will-formation: “How will a blind multitude, which often does not know what it wills because it rarely knows what is good for it, carry out an undertaking as great, as difficult as a system of legislation? By itself the people always wills the good, but by itself it does not always see it…. Hence arises the necessity of a Lawgiver.”² Acting as a political educator and attending to the morals of the people, the lawgiver sows the seeds of civic virtue and sets in motion a moral transformation so that citizens would in the future become capable of exercising the general will on their own.³

No doubt, Rousseau’s recourse to an enigmatic lawgiver in the midst of a theoretical inquiry aiming to map out the normative grounds of a self-legislating political community has sparked much debate and criticism. For some, the lawgiver indicates a democratic deficit in his thought. In this view, “Rousseau could not conceive of a self-fashioning people and so he invents, literally, a deus ex machina,” a somewhat implausible conceptual device, designed to bridge the gap between will and reason, consent and wisdom, democratic legitimacy and the common good.⁴ According to another line of interpretation, Rousseau’s appeal to the lawgiver models how the achievement of democratic autonomy is contingent on a heteronomous intervention at a fundamental conceptual level, inviting us thereby to reflect on the limits of normative ideals and their problematic construction.⁵ We will look at some of these interpretations more closely in due course, especially in discussing the contemporary restatements of the paradox of founding below.

In “What Is the Third Estate?” Sieyès encounters the paradox of founding from a different angle. Unlike Rousseau’s formulation, this version of the paradox turns on the institutional and procedural presuppositions of democratic will-formation rather than its ethico-cultural conditions. The central question that frames Sieyès’s argument is the following: “what should be understood by the political constitution of a society and how to identify its just relationship to the nation itself?”⁶ In response, he writes:

It is impossible to create a body for an end without giving it the organization, forms and laws it needs in order to fulfil 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…. Thus the body of representatives entrusted with the legislative power, or the exercise of the common will, exists only by 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.⁷

Notice that in defining the constitution this way, Sieyès puts the emphasis on its enabling rather than restraining functions. Even though constitutional laws do and must bring certain limits on the exercise of power, they always do so by establishing the institutional and procedural forms in and through which the exercise of power becomes possible in the first place. In this respect, to borrow John Searle’s distinction, constitutional laws function not only or even primarily like “regulative rules,” which govern practices that exist regardless of the rule (e.g., parking is prohibited), but also, and more important, like “constitutive rules,” which make a certain kind of practice possible in the first place (e.g., the queen can move in all directions).⁸

Having thus clarified “what should be understood by the political constitution of a society,” Sieyès then turns to the second half of the question: “how to identify its just relationship to the nation itself?”⁹ In response to this question, he introduces the well-known distinction between “constituent” and “constituted” powers. The power of the government—or the power to rule in accordance with and as prescribed by the law—is a constituted power in that it is subject to the fixed forms articulated in the constitution. However, the power to articulate these forms, namely, the power to make the constitution itself, is by definition of a different order. “In each of its parts a constitution is not the work of a constituted power but a constituent power.”¹⁰ This power belongs only and exclusively to the people, who can use it at will and give the constitution whatever form it wants. “It would be ridiculous,” Sieyès argues emphatically, “to suppose that the nation itself was bound by the formalities or the constitution to which it had subjected its mandatories.”¹¹ In its capacity as the constituent power, thus, the people is claimed to be beyond and above all institutional forms.

The paradox of democratic will-formation asserts itself precisely here. On the one hand, Sieyès has a point. If the people are to be taken as the locus of constituent power and the ultimate source of legitimacy on which the constitution rests, then their will must in some sense precede and underpin the constitution. On the other hand, as Sieyès acknowledges in his own definition of the constitution, a collective body can hardly act in a purposive way without the “internal forms” or the “constitutive rules” that enable it to do so. This makes it hard to understand how the people can exercise their constituent power. “There is no reason to be afraid of repeating the fact that a nation is independent of all forms,” Sieyès wants to reassure his readers, “however it may will, it is enough for its will to be made known.”¹² But this is not a solution to the problem; if anything, this is a restatement of the problem. After all, how is it possible for the people to form and express their will outside all procedural and institutional forms, the establishment of which is of course the task of the constitution itself?

Sieyès seems to think that the solution resides in the concept and practice of representation. “Since a great nation cannot in real terms assemble every time that extraordinary circumstances may require,” he says, “it has, on such occasions, to entrust the necessary powers to extraordinary representatives.”¹³ But notice that the problem at hand does not primarily turn on the practical impossibility of convening the people together. It is first and foremost a conceptual problem, and the call for “extraordinary representatives” would only highlight its persistence. How can the people—abstracted from all positive forms whatsoever, including by definition the electoral laws and regulations as well—elect these extraordinary representatives, that is, the members of the constituent assembly, and give them a coherent mandate?¹⁴ It seems that beyond and above all established procedures, the people are not only incapable of exercising constituent power on their own, but they cannot even delegate or entrust it to a constituent assembly, except on pain of circularity.

In 1788 (just a year before the publication of “What Is the Third Estate?”), Madison addressed the same issue in the context of the American constitutional debates. Unlike Sieyès, however, he acknowledged the vexing nature of the problem from the outset. In response to the charge that the Philadelphia Convention of 1787 transgressed its mandate by framing a new constitution, he writes: “in all great changes of established governments, forms ought to give way to substance … since it is impossible for the people spontaneously and universally, to move in concert toward their object; and it is therefore essential, that such changes be instituted by some informal and unauthorised propositions, made by some patriotic and respectable citizen or number of citizens.”¹⁵ Madison squarely admits that an “unauthorised” move is necessary to break the vicious circle in which every act of foundation with a democratic intent is caught up. Those who get together to frame a new constitution in an assembly speak in the name of a people who could not have duly authorized them or given them a coherent mandate. In this respect, there is a sense in which constituent assemblies play a formally similar role to Rousseau’s lawgiver. In both cases, “the people” seems to emerge as a democratic agent capable of self-determination only after the fact, that is to say, only when somebody else lays down the enabling conditions of democratic will-formation, whether these conditions are construed in terms of a civic ethos or a set of procedures and institutional forms.¹⁶

Does the Paradox of Founding Involve a Category Mistake?

What do we make of the paradox of democratic founding? The foregoing exposition is meant to give the conceptual contours of the problem; yet, it does not tell us how we are supposed to make sense of it. The problem is clear in its two basic versions, but what does it really signify? For some, to put it in a straightforward manner, it does not signify anything important or consequential. This, for instance, is Hegel’s view on the topic. He thinks that the paradox in question designates a trivial issue, which hardly merits serious treatment. More specifically, he takes it as yet another example of “those confused thoughts” arising from the “garbled notion of the people”—or, which comes down to the same thing, as a category mistake regarding the meaning of popular sovereignty and its proper sphere of application.

Hegel puts the point in a compelling way in the Philosophy of Right, first published in 1821, when the memory of the French Revolution was still fresh everywhere in Europe. The passage is worth quoting at length:

the usual sense in which the term “popular sovereignty” has begun to be used in recent times is to denote the opposite of that sovereignty which exists in the monarch. In this oppositional sense, popular sovereignty is one of those confused thoughts which are based on a garbled notion of the people. Without its monarch and that articulation of the whole which is necessarily and immediately associated with monarchy, the people is a formless mass. The latter is no longer a state, and none of those determinations which are encountered only in an internally organized whole (such as sovereignty, government, courts of law, public authorities, estates, etc.) is applicable to it. It is only when moments such as these which refer to an organization, to political life, emerge in a people that it ceases to be that indeterminate abstraction which the purely general idea of the people denotes.¹⁷

To be sure, Hegel’s defense of constitutional monarchy as the sole form of the rational state has been long outdated (in fact, it was hardly tenable even in his own time¹⁸). Yet his complaint about “the people” has a much broader purchase.

Hegel does not take issue with the basic normative insights underpinning the doctrine of popular sovereignty. On the contrary, his philosophical account of the modern state is structured around the idea of freedom as self-determination and its realization through an institutionally mediated web of interactions among equal citizens.¹⁹ His point is rather that popular sovereignty is exercised in and through the institutional edifice of the state, and hence does not apply to the founding of this edifice. Without the constitutional state as an “internally organized whole,” the people is either a “formless mass” or an “indeterminate abstraction,” that is unable to carry out any positive or constituent action.²⁰ In other words, popular sovereignty makes sense only in the context of an established political order by virtue of which the people already exists as an organized community. This is a view that widely resurfaces, albeit in different ways and with different twists, in contemporary treatments of constitutional democracy.

According to János Kis, for example, as we already quoted in the previous chapter: “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.”²¹ Stephen Holmes makes a similar point when he insists that we can meaningfully speak of popular sovereignty as a democratic principle only within the framework of constitutional restraints that establish procedures of decision-making and enable the practice of self-determination. Echoing Hegel’s complaint about the “garbled notion of the people,” Holmes writes: “A collectivity cannot have coherent purposes apart from all decision-making procedures. The people cannot act as an amorphous blob.”²² Working through the difficulties of the concept of constituent power, Ulrich Preuss likewise comes to the conclusion that it is not the people who make the constitution but the other way around. Since “constitutions are instruments of collective self-organization,” Preuss maintains, “the idea of a constituent power which creates a new order ex nihilo is a (perhaps necessary) fiction”—that is to say, “the constitution gives birth to the people in the sense in which this notion has been developed for the concept of democracy.”²³

Whatever its merits may be in other respects, this line of argumentation does not squarely face up to the paradox of founding. Arguments locating popular sovereignty within the constitutional democratic state and taking it in relation to the structure of the regime rather than its pedigree do not make the paradox disappear or save us from the vexing issues involved in it. What they do instead is to shift the emphasis from the primacy of the people to that of the constitution. However, such a move raises more questions than it actually answers. Several issues come to mind immediately. If it is the constitution that makes the people, then, who makes the constitution? How are we to understand the making of the democratic constitution anyway? If the people themselves cannot act in a constituent capacity and exercise popular sovereignty prior to the making of the democratic constitution itself, who speaks in the name of the people and with what title? At any rate, how do we know (or can we ever know) whether a constitution actually and authentically stands for the people? I do not think that democratic theory can afford to ignore such questions. Even when one concedes that the people cannot underwrite their political organization through an original exercise of popular sovereignty—as Kis, Holmes, and Preuss seem to suggest in their own ways—what this would signify for the concept of democracy in general and for the formation of a democratic political community in particular is still far from self-evident and stands in need of elucidation.

All in all, there is something deeply unsatisfactory in dismissing the paradox of democratic founding as a category mistake about the proper application of popular sovereignty. Such an approach leaves the issue of founding simply intact. Hegel is again illustrative here. At one point in The Philosophy of Right, he takes up the question of constitution-making, but only to dismiss it immediately: “It is at any rate utterly essential that the constitution should not be regarded as something made, even if it does have an origin in time. On the contrary, it is quite simply that which has being in and for itself, and should therefore be regarded as divine and enduring, and exalted above the sphere of all manufactured things.”²⁴ One cannot help but infer that Hegel’s ultimate response to the question of constitutional founding is that one ought not to ask that question!²⁵

Despite Hegel’s best efforts to efface it, the question has proved to be persistent. The paradox of democratic founding is a recurring theme in contemporary political theory, and theorists working in different traditions have picked up on it from a variety of angles, unpacking its implications in their own ways. In what follows, we will look at these contemporary restatements more closely in three consecutive steps: our first stop is Jacques Derrida’s reformulation of the paradox of founding through the lens of speech act theory; next, we turn to recent interpretations of Rousseau’s paradox, particularly those offered by William Connolly and Bonnie Honig; and finally, via Frank Michelman’s writings, we will focus on the procedural version of the problem and explore the ways in which it is brought to bear on the deliberative conception of constitutional democracy. Before moving on, a final reminder is in order: these three sections are primarily intended to be expositional. The reader will find a critical discussion at the end of the chapter.

Founding Acts and Speech Acts: Jacques Derrida

Beginning with a short but provocative essay on the American Declaration of Independence, the paradox of founding comes in focus in Jacques Derrida’s work via linguistic means of analysis derived from speech act theory. At the center of Derrida’s reading of the Declaration is the seemingly neat distinction between “constative” and “performative” utterances, developed (and later abandoned) by J. L. Austin in How to Do Things with Words. According to Austin, a constative is a verifiable utterance, the paradigm of which is the traditional proposition. It is meant to state some fact or to describe some state of affairs, and it must do so either truly or falsely. A performative is also an utterance, but of a very different kind. It does not describe a state of affairs, it brings about one. When I say “I promise,” I do not describe myself as promising, I perform the act of promising. Austin rightly observes that such utterances are not subject to verification in the same way as constative ones because actions cannot be “true” or “false.” Nonetheless, there is success or failure in the performance of an action, which prompts Austin to suggest that a performative utterance can be “felicitous” or “infelicitous” depending on whether it succeeds or not in doing what it says.²⁶

Reading the American Declaration of Independence through Austin’s distinction, Derrida asks a basic question: does the Declaration make a constative utterance or a performative one? “Is it that the good people have already freed themselves in fact and are only stating the fact of this emancipation in the Declaration? Or is it rather that they free themselves at the instant of and by the signature of this Declaration?”²⁷ One cannot say for sure, Derrida observes, whether independence is “stated” (as in a constative utterance) or “produced” (as in a performative one). This “undecidability” is due to the circular relationship of the text to its signer, namely “the people,” or the “we” of the Declaration. On the one hand, it seems, it is the signature of the people that authorizes the Declaration—in which case the Declaration would consist in a constative utterance by an already independent people stating its independence. On the other hand, however, “this people does not exist,” Derrida argues, “before this declaration, not as such”²⁸—in which case it would be the Declaration itself that brings about independence by a performative utterance, thereby creating the people as an authoritative subject capable of underwriting the Declaration. Thus, at one and the same time, the Declaration both presupposes and constitutes its signer. The paradox of founding is at play.

Much of this may look like a case of old wine in new bottles.²⁹ But there is actually more to Derrida’s argument than a simple restatement of the paradox of founding via linguistic analysis. Derrida attempts to reshape our understanding of the problem at a fundamental conceptual level by presenting the act of foundation itself as a speech act. If he is right in this claim, then it means that speech act theory is not simply applied to the problem of founding as though from without, and that the problems of speech act theory are also the problems of the politics of founding and vice versa. To get a better grasp of this point along with its wide-ranging implications, we need to get back to Austin’s theory of performative utterance and see Derrida’s critique of it.

According to Austin, the efficacy of a performative is ultimately a matter of convention. Take for instance the words “the class is dismissed.” They mark the end of the lecture and effectively dismiss the class only when they are uttered by the lecturer in the classroom. This is because there are certain conventions in place, some formal and some informal, that determine how lectures are to be conducted, thereby enabling the efficacy of the performative. “There must exist an accepted conventional procedure having a certain conventional effect”—this is Austin’s famous Rule A.1, the first rule of performative felicity.³⁰ But now consider the same sentence, “the class is dismissed,” as being uttered by a student who thereby reports to another student what has just happened. Although the utterance is linguistically the same, not only do the student’s words lack the power to dismiss the class (a matter of convention), but their meaning is also different. This is because the context has changed. In terms of a distinction that Austin developed later in the text, the same “locution”—the same sentence taken as an isolated linguistic unit—would have quite different “illocutionary” meanings depending on the context.

The underlying idea is that in order to give an account of language as a way of doing things in the world one must consider the interaction between linguistic utterance and social practice, which in turn involves issues of context and conventionality. Derrida applauds Austin for this move. However, in Derrida’s view, something has also gone wrong in Austin’s project from the outset. While Austin acknowledges that no sentence can be self-identifying and that its meaning depends on the context, he proceeds with the assumption of a stable and static context that serves as the guarantor of meaning. Just as a free-standing sentence cannot identify its own meaning, Derrida objects, a context cannot be fully transparent either. “This is my starting point,” he announces: “no meaning can be determined out of context, but no context permits saturation.”³¹ Contexts are unsaturated, conventions are dynamic, and both are essentially exposed to indeterminacy. Austin comes to acknowledge this, but only in passing, when he admits that “it is difficult to say where conventions begin and end.”³²

We may begin to see here the big picture regarding the profound affinity between the problems of speech act theory and the problems of the politics of founding. It is indeed difficult to say “where conventions begin and end,” and this is particularly so in revolutionary situations. When the American colonists declared independence in 1776, or when the delegates of the French Third Estate adopted the title “National Assembly” in 1789, they did not rest on “an accepted conventional procedure having a certain conventional effect” (Austin’s Rule A.1). Rather, it was the other way around. In both cases—and many others since then—the performative speech of the dissenters challenged existing conventions, while at the same time creating new ones. Revolutionary acts of foundation turn Austin’s Rule A.1 upside down. Instead of performatives depending on conventions, conventions are brought to depend on performatives.³³

What follows from this reversal, according to Derrida, is that every act of foundation is by definition groundless and violent in a certain sense. In the “Force of Law,” he puts the point emphatically:

The very emergence of justice and law, the founding and justifying moment that institutes law implies a performative force…. Its very moment of foundation or institution (which in any case is never a moment inscribed in the homogeneous tissue of a history, since it is ripped apart with one decision), the operation that amounts to founding, inaugurating, justifying law (droit), making law, would consist of a coup de force…. Here the discourse comes up against its limit: in itself, in its performative power itself. It is what I here propose to call the mystical. Here a silence is walled up in the violent structure of the founding act.³⁴

That every act of foundation is groundless and that law is anchored in a moment outside the law are not bad news for Derrida. Rather, they are suggestive of the fact that no institution can completely close on itself and fully colonize performative speech. The groundless beginning of the political community involves the seeds of its own destabilization and hence the very possibility of politics.³⁵

In Derrida’s view the danger resides elsewhere: acts of foundation are prone to cover their own tracks. The retroactive production of authority, by way of an extraordinary performative creating the conditions of its own felicity, draws a mantle over the groundless beginning of the political community, thereby keeping out of sight the foundational deficit of legitimacy. One is tempted to recall Edmund Burke here. “There is a sacred veil to be drawn over the beginnings of all governments,” he suggested once, “time, in the origin of most governments, has thrown this mysterious veil over them; prudence and discretion make it necessary to throw something of the same drapery over more recent foundations.”³⁶ The oscillation between constative and performative modes of speech, which structures the Declaration of Independence in Derrida’s reading, is a symptom of this hiding operation. Speaking as if “the people” are already present as a sovereign entity, the Declaration helps disguise the fact that independence is produced performatively and that “the people” arrives only after the fact.³⁷

Rethinking Rousseau’s Paradox: William Connolly and Bonnie Honig

Among contemporary political theorists, William Connolly is arguably the most persistent and meticulous reader of Rousseau’s paradox of founding.³⁸ He has repeatedly revisited this version of the paradox with a view to unpacking its implications for democratic theory, and offered a prolific interpretation that has been developed and fleshed out in various directions by others. On the one hand, Connolly celebrates Rousseau for identifying and articulating the paradox of founding; on the other hand, he observes that “Rousseau then conceals the legacy of this paradox in the operation of the general will after it has been founded by the creative intervention of a wise legislator.”³⁹ Like Derrida, Connolly too thinks that there is a hiding operation going on. What sort of “legacy” is at stake here and how is it concealed?

According to Connolly, the paradox of founding is never truly resolved. Despite Rousseau’s artful efforts to imagine the lawgiver as a non-authoritarian authority who would not jeopardize the future autonomy of the people, what lurks behind the figure of the lawgiver is in the end an “element of arbitrariness that cannot be eliminated from political life.”⁴⁰ This element of arbitrariness has both a conceptual and a historical side. Conceptually, the invocation of the lawgiver designates an unavoidable “impurity” inherent to the ideals of general will and popular sovereignty. There is no self-sufficient practice of political autonomy that is not inhabited by its own other, by some sort of heteronomous element that enables the exercise of popular sovereignty while remaining unaccountable in view of its normative aspirations. Hence, Connolly concludes that “the very structure of sovereignty compromises the integrity and coherence idealists of democratic sovereignty demand.”⁴¹ Historically, in real-world political foundings, this “impurity” refers us, among other things, to the less than salutary practices including the repression of certain voices, the formation of hegemonic political identities, and the use of techniques for ensuring allegiance without consensus—all of which Connolly treats under the rubric of founding violence.

Connolly’s central claim is that, once the political community is established, the legacy of this founding violence has to be concealed for the general will to function as a regulative ideal. Rousseau conceals it through his imagery of the lawgiver. The office of the lawgiver has no place in the constitution; he can move the people without forcing them; he is most likely a foreigner who has no reason to stay in the republic once the task of foundation is accomplished, and so on.⁴² Imagining the lawgiver this way, Rousseau wants to get his readers to infer that the heteronomous intervention of the lawgiver would not compromise the hoped-for autonomy of the people, and that the paradox of founding is to be overcome without leaving behind troubling traces. In actual polities, the legacy of founding violence is concealed by the hegemonic political identity which treats it as having no actual hold on the current operations of the general will, “as if, for instance … the systematic violence against indigenous inhabitants in the founding of the United States carries no continuing effects into the present”—the paradox of founding thereby dissolves into “the politics of forgetting.”⁴³ Insofar as not only what we remember but also and perhaps more significantly what we forget is constitutive of who we are, the symbolic authority of founding moments originates as much from what is left to oblivion as from what is memorable.⁴⁴

Following on from Connolly’s work, Bonnie Honig also holds that Rousseau’s paradox remains ultimately unresolved. And yet, in her view, “nor is it just concealed, as Connolly argues, by way of unacknowledged, foundational violence in Rousseau.”⁴⁵ Rather, in every effort Rousseau makes to solve the paradox of founding, it moves on to another register and defies resolution. Rousseau introduces the figure of the lawgiver because the people are considered to be not yet enlightened enough. They are not yet capable of forming and exercising the general will on their own. Nevertheless, Honig draws attention to the fact that the lawgiver and the people are dependent on each other from the very beginning: for the lawgiver to accomplish the task of foundation properly, he must be recognized by the people as a “true lawgiver” in the first place. “The lawgiver may offer to found a people, he may even attempt to shape them, but in the end it is up to the people themselves to accept or reject his advances. They may be dependent on his good offices, but he is no less dependent on their good opinion.”⁴⁶ Once this interdependence is acknowledged, however, the paradox moves on to a new register. Instead of asking how a people who is not yet shaped or educated by good laws can themselves make them, one would ask now (as Rousseau himself actually did) how a people who is not yet enlightened by the lawgiver can distinguish between a true lawgiver and an impersonator, a charlatan?⁴⁷