Founding Acts. Serdar Tekin
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it the other way around, how can citizens regard themselves as the authors of the higher law which claims to speak on their behalf? When does a constitution really or genuinely speak for the people? And how does it come to live up to the principle of popular sovereignty in a plausibly nonfictive way? Such questions are no doubt among the fundamental questions of constitutional and democratic theory, but they are especially pertinent to our present condition where the voice of the people turns out to be irrevocably fragmented.
This book has grown from the hunch that founding moments bear a particular significance under the circumstances that I have just described. There is a longstanding tradition in modern political theory—a tradition extending from Thomas Hobbes to John Rawls—that subscribes to a “hypothetical” account of popular sovereignty in one way or another. In this view, popular sovereignty is meant to convey the basic normative insight that political power should be justified in terms of those general principles that everyone—in their collective capacity as “the people”—would consent to, had they been acting on good will and right reason. But if the voice of the people is fragmented, if everyone wants to speak and to be heard in her or his own voice, then no such abstract or pre-political agreement can be justifiably stipulated in advance, and constitutional claims of popular sovereignty can no longer exclusively or even primarily rest on this type of “hypothetical” argument. That is to say, conversely, a democratic constitution must have a strong foothold in what actual citizens have to say in their own voices about the form and principles of their own political organization. Hence the central thesis of this book: the process of constitution-making (how a constitution is made) is morally and politically as significant as the content of the constitution (or what it is made of). In other words, I argue that a democratic constitution is not only supposed to set up the institutions of self-government, but it is also supposed to be formed, as much as possible, democratically. Constitutional claims of popular sovereignty would lay claim to democratic legitimacy to the extent that citizens themselves take part in the process of constitution-making, thereby underwriting their constitution in a nonfictive sense.4
For reasons that will become clear in due course, I hold that deliberative democratic theory offers the most developed paradigm for exploring the complex nexus between constitutional claims of popular sovereignty and the practice of constitution-making in our pluralistic age.5 This being said, my argument moves away from a certain trend in deliberative democratic theory, a trend which dissolves actual political participants into an allegedly “subjectless” flow of communication. In a well-known statement of this position, for instance, Jürgen Habermas writes: “The ‘self’ of the self-organizing legal community disappears in the subjectless forms of communication that regulate the flow of discursive opinion- and will-formation in such a way that their fallible results enjoy the presumption of being reasonable. This is not to denounce the intuition connected with the idea of popular sovereignty but to interpret it intersubjectively.”6 While I agree that models of popular sovereignty subscribing to the notion of the people as a counterfactual macro-subject are no longer tenable, I doubt that a model centered around “subjectless forms of communication” is the sole or even the most plausible alternative. Rather, this book defends a deliberative politics of founding in which concrete forms of political agency play a pivotal role, and the constitution comes to have a toehold in the site of shared democratic experience created thereby. This is essential not only to the democratic legitimacy of a new constitution, I further argue, but also to the experiential sources of democratic peoplehood, of which some preliminary remarks are now in order.
The People in the Making
Throughout this book peoplehood comes into focus, primarily, in view of its relation to the normative foundations of constitutional democracy. But the issue of “the people” is prior to and broader than that.7 Take, for instance, Robert Dahl’s well placed question: “When does a collection of persons constitute an entity—a people’—entitled to govern itself democratically?”8 In view of the principle of popular sovereignty, a question of this sort indicates a limit condition. Although popular sovereignty presupposes the presence of the people as a “bounded community,” it cannot be brought to bear on its composition. After all, how could it be? When the controversy is about the boundaries of the relevant constituency, there indeed seems to be no coherent way of appealing to the people to resolve it. As Bernard Yack puts it: “Who belongs to ‘the people’ in 1848 Venice, 1955 Algeria, or 1999 Quebec? Inhabitants of Venice, Algeria, or Québec or all of the Austrians and Italians, Frenchmen and Arabs, Anglophones and Francophones who share the boundaries of larger states to which they belonged at the time? … You cannot answer such questions without, in effect, taking sides in the issue that you want to put before ‘the people.’”9
In one sense, of course, there is nothing surprising here. The normative principle that all legitimate power comes from the people does not—and more importantly, is not meant to—specify which concrete group of human beings should count as a distinct people entitled to self-government. Nonetheless, what determines the composition of the people as a bounded community is hardly irrelevant to the kind of normative claims characterizing the modern doctrine of popular sovereignty, given the fact that the doctrine affirms a voluntarist vision of political community, one that depends on choice and consent.10 This reveals a problem residing at the heart of the democratic state. While democracy requires a bounded community of sorts, a demos, which distinguishes between insiders and outsiders, the moral scope of a voluntarist conception of legitimacy extends to all human beings in principle, making room for the claims of non-citizens, and thereby inscribing an element of radical openness into the concept of the people.11
The boundary problem involves a variety of issues (such as state-building, territorial borders, and immigration policies, to name a few) that it is not my purpose to explore here. Nonetheless, it is an important reminder of the fact that claims of peoplehood are contestable at every level of analysis. Hegel certainly did not overstate the point in 1821, when he remarked that “the people” is a “garbled notion.”12 Notice that, alongside the boundary problem, “the people” of constitutional democracy is subject to a further and perhaps philosophically more salient ambiguity. It seems to indicate, as Margaret Canovan aptly observes, “two quite different things” at once: “On the one hand it refers to something collective, abstract, dignified and mysterious: an entity—‘the British people’ or ‘We, the people of the United States’—that has a continuous existence and history, transcending and outliving its individual members. On the other hand it also means those individual members themselves, a collection of ordinary, ever-changing people with their separate lives, interests and views.”13 This ambiguity brings home to us a fundamental (or, if you like, an ontological) question: what is a people? Is it an aggregate of individuals? Or should we rather think of it as a single whole, something like a corporate body? Or, perplexing as it may sound, both at once?
Arguably, much of the best scholarship in contemporary democratic theory would reject the static terms in which this question is posed. According to a variety of theorists working in different traditions, “the people” is neither a counterfactual macro-subject nor an amorphous multitude of individuals, but rather a practice, a doing, a political dynamic of sorts. In the second volume of his influential work, We the People, for instance, Bruce Ackerman writes that “for me, ‘the People’ is not the name of a superhuman being, but the name of an extended process of interaction between political elites and ordinary citizens.”14 From a quite different perspective (drawing on the work of Jacques Rancière), Jason Frank notes that “the people are a political claim, an act of political subjectification, not a pre-given, unified, or naturally bounded empirical entity.”15 In a somewhat similar fashion, Paulina Ochoa Espejo holds that “a people is always in the making and unmaking” because it is a “process, a series of events, rather than a collection of individuals.”16 In all these statements, despite the otherwise important differences among their authors, one finds an agency-centric conception of democratic peoplehood.17
This book adopts a similar approach. On the view to be defended here, what binds different people into “the people” is collective action, that is, the political experience of constructing life together. I intend to bring