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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.

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