Founding Acts - Serdar Tekin

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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.

       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

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