Founding Acts - Serdar Tekin

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fundamental role that constitutions play—symbolically as well as institutionally, performatively as well as normatively—in the self-definition and self-understanding of the political community as a certain kind of “we,” I argue that the politics of constitution-making is at the same time a politics of people-making. Founding moments or constitutional episodes are crucial junctures where the fundamental questions of politics are brought back in for everyone to see and to discuss. In these “extraordinary”18 moments, the basic terms of the political association come to be (re)negotiated, and the given patterns of collective self-definition are publicly thematized, contested, and rearticulated. These are the stuff that claims of peoplehood are made of.

      Alongside normative reasons about the democratic legitimacy of a new constitution, therefore, this book also highlights the importance of founding moments as experiments in democratic peoplehood. To be sure, this is not to say that claims of peoplehood can be decisively settled at any instance or that citizens should, once and for all, bind themselves into “the people” through an episodic act of constitution-making. Insofar as democratic politics is inherently open-ended, both the normative content of the constitution and the identity of the people are bound to remain contested.19 The point of the matter is rather that what occurs in the process of constitution-making would make a great deal of difference not only in terms of our relation to the constitution or its meaning to us as citizens, but also in terms of our self-understanding as a people in the making. Founding moments leave their imprint in the “stories of peoplehood”20 we tell about ourselves.

      The Paradox of Democratic Founding

      Up to this point, I have outlined a twofold argument. It highlights the significance of founding moments, first, in terms of the democratic legitimacy of a new constitution, and secondly, in terms of the experiential sources of democratic peoplehood. Both claims are basically about why democratic theory should take an interest in the politics of founding. Yet, any attempt to defend the notion of democratic founding (and this is precisely what this book is meant to do) must address itself to a further question: how is it possible—or is it ever possible—to begin democratically, especially when there is no democracy before? In other words, can we bring democracy, paradoxical as it may seem, to bear on the making of the democratic constitution itself? Questions of this sort drive home to us a highly vexing problem, which has been recently flagged as “one of the most intractable issues in political theory,”21 namely, the paradox of democratic founding.

      There is a sense in which, ever since Plato’s “noble lie,” the tradition of political philosophy has been aware of the fact that acts of foundation are inherently paradoxical. In the Republic, so as to introduce the psychological and cultural matrix of the “city in speech,” Plato resorts to a rhetorical device, a noble lie or a founding myth, because he realizes that the creation of an optimally just and rational city is subject to a vicious circle: such a city can only be brought about by certain kind of men and women, whose breeding and education, however, is the very task of the same city.22 In The Social Contract, Rousseau brings the same paradox to bear on the core democratic idea of self-legislation for the first time. For the people to act in their constituent capacity, i.e., as the collective author and creator of the constitution, they must be able to take a broader standpoint than the counsels of sheer self-interest and must place the common good at the center of their political considerations. And yet, Rousseau keenly observes, a collective capacity of this sort would only flourish in an already existing well-ordered society. It is by virtue of good laws that citizens are educated to take a principled standpoint and to attach themselves to the common good. Hence the outstanding question: how can the people carry out the first act of self-legislation, in fact the most important act of self-legislation, namely the making of the republican constitution, if the kind of moral and political capacities required to perform this act are to develop under an already functioning republican regime? For the people to underwrite their constitution “the effect would have to become the cause … and men would have to be prior to laws what they ought to become by means of them.”23

      To escape this vicious circle, Rousseau appeals to a “great lawgiver,” who is supposed to educate the people into the ethos of self-legislation. Yet, this means that the achievement of political autonomy remains contingent upon a heteronomous intervention in the Rousseauian republic. A rift seems to open up between the political origins of the republic and its normative foundations, between the way in which political community gets off the ground and the principles on which it is meant to rest. While the act of foundation, carried out through the heteronomous agency of the great lawgiver, invokes certain normative principles and creates the suitable conditions for their realization, it cannot be justified, strictly speaking, from the standpoint of those very principles.

      Needless to say, Rousseau’s vision of political community integrated through a thick and substantive ethical consensus has considerably lost its normative purchase today. But the paradox of democratic founding is still with us—in two main forms, I think. For one, democratic constitution-making under conditions of diversity and plurality is itself a matter of ethos, though not in the same way envisioned by Rousseau. Citizens do not need to cohere around a particular conception of the good rooted in a single regime of republican ethos. Yet, if they are to construct “we the people” without erasing difference, they must still engage with one another in such a way as to build mutual trust and seek resolutions that are acceptable to all. This, in turn, requires a political culture of deliberation as well as certain forms of civic competence which are unlikely to have developed in societies where democracy is not already in practice. The kind of circularity that Rousseau so acutely diagnosed in The Social Contract is hard to miss in such transitional cases. South Africa had to face it in 1994, Egypt in 2012, but with tremendously different results.24

      Democratic constitution-making appears to be paradoxical in yet another way: law and democracy presuppose one another. Notice that a constitution is an instrument or medium of self-organization. Its task is to set up the enabling conditions of democratic will-formation such as laws, procedures, and institutions by means of which a multitude of citizens would come to make collective decisions as a people. But if this is so, then, how is it possible for the people to underwrite their constitution, given the fact that the enabling conditions of democratic will-formation are to be set up by the constitution itself? While the constitution rests on the people for its democratic legitimacy, the people—in a perfectly circular fashion—rest on the constitution for their democratic agency. Again, it seems that every act of foundation with a democratic claim is inevitably caught up in a vicious circle.

      In both of these versions, the paradox of democratic founding is a recurrent theme in contemporary political theory. It has been stated and analyzed by a variety of theorists working in different traditions.25 Despite the rich variety of interpretations, however, what runs like a red thread through these contemporary treatments is a skeptical gesture, according to which the idea of democratic founding is at best self-contradictory and hence theoretically unsustainable, and at worst a hegemonic fiction that conceals the arbitrary origins of political power.26 Edmund Burke once commented that “there is a sacred veil to be drawn over the beginnings of all governments.”27 Contemporary theorists prying into the paradox of democratic founding claim to draw aside this veil. Since the people themselves are never “the people” and hence unable to underwrite their constitution, we are told, the establishment of democratic autonomy is necessarily implicated in a heteronomous intervention, a moment of speaking in the name of a people that does not yet exist. As such, these theorists want to have us acknowledge the ways in which the making of the democratic constitution performatively contradicts the basic principles that it seeks to foster, and hence bring to our attention the crucial discrepancies between the normative foundations of constitutional democracy and its political origins.

      A central agenda of this book is to engage in a critical dialogue with this “agonistic” line of interpretation. In doing so, my intention is not to dismiss the wide range of important issues that it brings to our attention. Viewed from an agonistic point of view, the paradox of founding is a potent motif that keeps us alert about the ways in which appeals to “the people” are inherently contestable, law may remain alien to its alleged authors, and the politics of founding may turn

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