Constituent Power: A Discourse-Theoretical Solution to the Conflict between Openness and Containment

Transcription

1 doi: / Constituent Power: A Discourse-Theoretical Solution to the Conflict between Openness and Containment Markus Patberg 1. Introduction Constituent power is not a favorite concept among contemporary legal and political theorists. Or, as one commentator humorously puts it: [I]f we encountered the idea of a constituent power on Facebook we would certainly be unlikely to respond to it by clicking Like. 1 In fact, more than a few authors would like to do away with the category altogether. 2 This is primarily due to the fact that the notion of pouvoir constituant is often associated with the unquestioned affirmation of unrestrained or even arbitrary processes of constitutional politics. However, in the wake of recent attempts at democratic constitution making, such as in Iceland, Tunisia, or Egypt, the idea of constituent power receives renewed and more positive attention. 3 In search of standards that would enable normative evaluations of ongoing processes as well as the formulation of prescriptive statements on the desirable qualities of future episodes of constitution making, scholars have turned to the classical concept of pouvoir constituant, which carries the promise of an inclusive founding process among free and equal individuals. 4 However, the revived interest in constituent power as a category of democratic theory has demonstrated that a basic problem, which has haunted the idea of pouvoir constituant since its earliest invocations, remains pressing. There seems to be an unresolvable theoretical conflict between openness and containment. On the one hand, the classical notion of constituent power is tied to expectations of radical procedural and substantive openness and seems to lose its distinctive character once we set forth normative requirements for constitution making. On the other hand, the pouvoir constituant is understood as the source from which the constitution derives its democratic legitimacy, which implies that not every procedure and not every result of constitution making can be deemed acceptable. Against the background of this dilemma, this article addresses the following question: What are the procedural and substantive requirements for the democratically legitimate exercise of constituent power and how can we theoretically justify such normative standards without reducing the idea of an unrestrained founding power to an absurdity? To provide a solution to this conundrum, I develop an advanced version of Jürgen Habermas s discourse-theoretical account of constituent power. The analysis is structured as follows. First, I outline the conflict between openness and containment and introduce the idea that the solution might be to derive the normative standards of constituent power from the practice of constitution making itself through a rational reconstruction (2). Next, I reject the view that Habermas has already presented such an analysis and explain why the system of rights and the idea of a permanent founding do not amount to a satisfying conception of constituent power (3). Given that the main reason is that Habermas deals with the constituted practice of self-legislation rather than the act of founding, I then conduct a rational reconstruction of the practice of constitution making. The result is a set of non-juridical principles as well as an expanded system of rights, which circumscribe procedural and substantive conditions of democratic legitimacy for the exercise of constituent power (4). In the conclusion, I summarize in what sense this revision of the discourse-theoretical account provides a solution to the conflict between openness and containment (5). 2. Constituent Power Between Openness and Containment The classical notion of constituent power encompasses two fundamental ideas. First, the constitution should be an object of political autonomy. Second, constituted powers should be excluded from constitutional politics. These ideas can be illustrated with reference to John Locke and Emmanuel Joseph Sieyès, who were the first to systematically introduce the concept of pouvoir constituant to constitutional theory. 5 According to the first idea, constitutions should be the result of a democratic decision-making process, or, to put it differently, all those subjected to the collectively binding decisions of a (future) state are entitled to determine the form and competences of its political institutions. Locke formulates this idea in The Second Treatise of Government where he states that the legislative derives its authority from the people by a positive voluntary grant and institution. 6 Inthesamevein,Sieyès claims in his What is the Third Estate? that a constitution should be the work of a constituent power consisting of individuals seeking to unite in a polity. 7 The idea is that the freedom of the citizens is only compatible with the exercise Constellations Volume 24, No 1, 2017.

2 52 Constellations Volume 24, Number 1, 2017 of public authority to the extent that the structure and competences of the political system are at their disposition. The constitution is meant to have a democratic origin. The second idea holds that the political institutions whose public authority is grounded in the constitution should not be in a position to modify their competences or to transfer them to other entities. Locke s version of this idea is that the legislative only commands the authority to make laws, and not to make legislators. 8 Sieyès extends this claim to all constituted entities, stating that [n]o type of delegated power can modify the conditions of its delegation. 9 In other words, the institutions of the regular system of government must not interfere in processes of constitutional politics. Even within the established order, it is up to the citizens in their role as the pouvoir constituant to redetermine procedural rules, to revise the distribution of competences, or to reshape political institutions. The rationale behind this exclusion of the constituted powers from all processes of constitution making and constitutional revision is to prevent public authority from legally taking on a life of its own. This concern relates back to the first idea in the sense that the political autonomy of the citizens extends to the constitution only when those in power are precluded from initiating or blocking constitutional change for self-interested motives. Taken together, the two ideas establish a division and hierarchization of constituent and constituted powers. The theoretical conflict to be addressed in this article arises because the notion of pouvoir constituant is tied to expectations of radical procedural and substantive openness. For instance, Locke suggests that the citizens acting as the constituent power are entitled to make forms of government as they think good. 10 Likewise, Sieyès presents the pouvoir constituant as the origin of all legality who cannot and should not be bound to provisions of positive law. 11 Later, this was taken to mean that the constituent power can be restricted neither on the procedural nor on the substantive dimension in any form. 12 Since constituent power is to be understood as a concept of democratic legitimacy, this alleged boundlessness is problematic because it seems to imply an affirmative attitude vis-à-vis any effective act of constitution making and thus to open the doors to arbitrary actions of dominant social groups. 13 Accordingly, ideas of a boundless pouvoir constituant are nowadays regarded as premodern and contrasted with models of principled constitution making. 14 However, normative standards for the exercise of constituent power are hardly compatible with the idea of political autonomy as long as they are presented to the actors from an external standpoint as quasi-objective constraints. Democratic theory usually reacts to such problems with the introduction of institutional procedures that allow the parties involved to settle their normative issues in practical discourse. The problem is that this option is not available for the situation of constitution making, which defines itself precisely by the absence of a legal framework: How can, in other words, higher lawmaking be justified if the legal and institutional principles of validity necessary for assessing the rightness or fairness of constitutional creation are absent at the very moment of founding? 15 The strategy of democratic proceduralism cannot provide a way out because it is exactly the structures of self-government that are to be determined by the pouvoir constituant. A promising solution to this dilemma has been proposed by Andreas Kalyvas, who suggests that the principles for the democratic legitimacy of constituent power are inherent in the very practice of constitution making. More specifically, he invokes an Arendtian notion of principles of action that are immanent, though amorphous and unthematized, to the founding act itself. 16 This approach is instructive, as it promises to establish a balance between openness and containment. Standards that the participants of constitution making themselves regard as authoritative do not appear as external constraints but rather as a selflimitation made in light of the normative logic of the practice. Unfortunately, Kalyvas s specific version of practice-inherent normativity cannot lead us to an outline of the boundaries of constituent power. The problem is that, according to Kalyvas, principles of action are not the product of abstract, rational thinking, which means they cannot be determined theoretically but rather need to be recognized and performed by the participants of a practice. 17 Accordingly, we need to assume that the principles of constituent power are embedded in the performance of the founding action and can be identified only by the actors during the very moment of constituting a new order. 18 Since it is impossible for political theory to transform standards that disclose themselves only to the actors carrying out a certain practice into abstract normative frameworks, Kalyvas s principles of action cannot be formulated as requirements of democratic legitimacy that would enable us to evaluate ongoing processes of founding in procedural and substantive terms and to devise models for future episodes of constitution making. In short, while Kalyvas points us in the right direction, we need a different account of practice-inherent normativity. Against this background, I draw on an alternative approach that is not only compatible with the political autonomy of the participants of founding processes but might also allow us to outline a systematic account of constituent power s conditions of democratic

3 Constituent Power: Openness and Containment: Markus Patberg 53 legitimacy: Habermas s method of rational reconstruction, which aims at explicating the implicitly assumed normative contents of empirically established practices... from the participant perspective, i.e., in a performative attitude. 19 While the idealizing assumptions (in Habermas s terminology: presuppositions) of the participants play a crucial role in this regard, existing practices are by no means generally accredited with normative dignity. Rather, only those practices lend themselves to a rational reconstruction, and thus to the explication of normative standards, in which we can identify particles and fragments of an existing reason..., however distorted these may be. 20 Thus, the first step is to look at the empirical forms of a practice, e.g., institutions and participants behavior, in order to identify the normative expectations that actors associate with it and that point to its performative meaning. These elements are then to be elaborated, by means of normative theory, so as to prescribe a discursively justifiable form of the practice. 21 In short, the point of a rational reconstruction is to uncover what participants implicitly commit to when voluntarily entering a certain practice. In this way, the method avoids imposing normative standards on realworld actors from an external standpoint. The advantage of this, vis-à-vis Kalyvas s principles of action, which disclose themselves only to the immediate participants of a practice, lies in the fact that the discourse-theoretical method enables political theory to explicate the inherent normative substance of practices in the form of principles that can be invoked to evaluate and guide real-world processes. Thus, a rational reconstruction of constitution making could allow us to identify, without unduly limiting the freedom of the pouvoir constituant, the conditions under which the practice presents itself as discursively justifiable from the participant perspective. Interestingly, Habermas seems to indicate that he already conducted such an analysis when he states that the discourse theory of law and democracy explicates the performative meaning of [the] constitution-making practice. 22 Against this, I will now argue that while Habermas provides the methodological key for resolving the conflict between openness and containment, his remarks on constituent power amount to an incomplete and problematic picture. 3. The System of Rights and the Idea of a Permanent Founding At first sight, Habermas version of constitutionalism seems a natural ally... of those who... press for democratic participation in the ongoing rearticulation of constitutional norms. 23 According to the literature, two core elements of the discourse theory of law and democracy support this claim. First, it has been suggested that Habermas s system of rights expresses normative standards for the exercise of constituent power. The abstract categories of basic rights are said to represent an explicit expression or rearticulation of the implicit presuppositions that enable the deliberative practice of constitution-making in the first place. 24 Second, it has been claimed that Habermas s idea of a perpetuation of the founding moment obviates the need for evaluating the democratic legitimacy of original constitution making. Supposedly, the permanent founding does away with the need to assume a pouvoir constituant who acts as system designer. 25 As I see it, both of these positions make it too easy for themselves. If we aim for a solution to the conflict between openness and containment, we need to add to and refine Habermas s position in significant ways. What is missing in the discourse-theoretical account of constituent power? Let me address the system of rights first. What I would like to show is that while Habermas s abstract categories of basic rights can be understood as an explication of the necessary content of a democratic constitution (and thus of the substantive dimension of constituent power), any attempt to read procedural requirements for democratic constitution making into these categories overstretches the available room for interpretation. To unfold this critique it is helpful to recall the analysis from which the system of rights results. Assuming that [n]o one can credit herself with access to a system of rights in the singular, independent of the interpretations she already has historically available, Habermas conducts a rational reconstruction of the practice that manifests itself empirically in the constitutional texts as well as the constitutional reality of democratic states. 26 The object of study is the practice of democracy in its constituted form and the goal a discourse-theoretical explication of the standards that individuals implicitly commit to when entering the practice of self-legislation. Put differently, Habermas aims to identify the conditions under which the participants could ascribe communicative rationality to the practice of constitutional democracy. Communicative rationality is the feature of practical discourses in which validity claims are put to the test. While political theory can to a limited extent simulate such discourses in thought experiments, it cannot substitute for or actually conduct them. 27 For that reason, the method of rational reconstruction begins with the empirical forms of the practices analyzed, given that these have been brought about, at least partly, through communicative action and may therefore contain traces of existing reason (in the sense of discursively justifiable elements) that can form the starting point for normative theory. The crucial indicators for such elements are the presuppositions that de facto underlie the practice in question and that can, for example,

4 54 Constellations Volume 24, Number 1, 2017 be read off its institutional forms and be derived from participants behavior. According to Habermas, in the case of constitutional democracy these sources indicate that the empirical practice proceeds on the basis of the implicit assumption that it represents an enterprise of free and equal citizens who govern themselves through the medium of positive law. 28 Accordingly, the rational reconstruction of constitutional democracy takes the form of a thought experiment that takes up this presupposition as guiding question: [W]hat rights must citizens mutually grant one another if they decide to constitute themselves as a voluntary association of legal consociates and legitimately to regulate their living together by means of positive law? 29 To answer this question, Habermas simulates a situation of democratic constitution making in which a group of hypothetical founders conducts a rational discourse about the preconditions of a legally institutionalized practice of self-legislation. The imagined constitutionmakers first arrive at the conclusion that the chosen medium of law requires them to set up a legal order in which every future citizen enjoys the status of a bearer of subjective rights. Thus, they opt for the establishment of three categories of basic rights that together constitute an association of legal consociates (i iii). Moreover, the participants realize that a category of political rights is necessary in order not to confine the citizens to the passive role of addressees but to enable them to become authors of the law (iv). These considerations find their expression in the system of rights: i. basic rights (whatever their concrete content) that result from the autonomous elaboration of the right to the greatest possible measure of equal individual freedom of action for each person; ii. basic rights (whatever their concrete content) that result from the autonomous elaboration of the status of a member in a voluntary association of legal consociates; iii. basic rights (whatever their concrete content) that result from the autonomous elaboration of each individual s right to equal protection under law, that is, that result from the actionability of individual rights... iv. basic rights (whatever their concrete content) that emerge from the autonomous elaboration of the right to an equal opportunity to participate in political law-giving. 30 These abstract placeholders can be understood as a philosophical framework for positive constitutional law. Importantly, a codification would not only lead to fundamental rights but also establish the core organizational elements of a democratic constitution. Since the system of rights is meant to express the performative meaning of the practice of constitutional democracy, it points not only to individual rights but also to certain legal principles that concern the institutional order, such as the separation of powers. According to Habermas, elements of this kind are not just functionally necessary supplements to the system of rights but implications already contained in rights. 31 In other words, a legal specification of the system of rights is supposed to lead to a constitution that guarantees basic rights as well as the rule of law and establishes procedures of self-legislation. The question is: To what extent can this rational reconstruction be understood as an analysis of the normative requirements faced by the pouvoir constituant? The derivation of the abstract categories of basic rights is characterized by an ambiguity that allows for the interpretation that Habermas is dealing with constituent power. On the one hand, he explains that the system of rights states the implicit commitments that go along with the intersubjective practice of selflegislation in the medium of positive law. 32 According to this, the abstract placeholders circumscribe the enabling conditions of democracy within a constituted order and do not seem to be of direct relevance for questions of constituent power. On the other hand, Habermas occasionally presents the system of rights as an explication of the performative meaning of the practice of constitution making that is meant to bring forth a selfdetermining community of free and equal citizens. 33 On this description, the categories (i) to (iv) appear as a list of substantive requirements for the exercise of constituent power. Activities of the pouvoir constituant may be regarded as democratically legitimate only if they result in a constitution that can be understood as a codification of the abstract categories of basic rights. 34 If we accept the latter reading, the question arises what Habermas has to say about the procedural dimension of constituent power. What are the requirements that the political process in which the abstract placeholders derived from the thought experiment have to be codified needs to meet? For this problem, Habermas cannot offer a solution because, in his account, the original act of constitution making appears only as a metaphorical event. 35 He resorts to a hypothetical process of founding in order to determine the enabling conditions of ordinary lawmaking within the constituted order of a democracy but leaves open how the first binding interpretation of the system of rights in the form of positive constitutional law can be brought about. The reason is simple: In the end, Habermas aims to explicate the performative meaning of the constituted practice of self-legislation rather than the practice of constitution making. The rational reconstruction is meant to determine the conditions under which the final product of constitution making constitutional democracy presents itself to the participants as a discursively justifiable enterprise. If we want to learn something about

5 Constituent Power: Openness and Containment: Markus Patberg 55 the procedural dimension of constituent power, we need to approach the matter differently. However, his non-consideration of original constitution making is often regarded not as a weakness of Habermas s democratic theory but rather as an ingenious solution to a dilemma. This leads me to Habermas s idea of a permanent process of constitution making, which is frequently presented as a solution to the so-called paradox of democratic founding and supposedly gives the notion of pouvoir constituant a convincing form. 36 This position rests on the assumption that it must lead to an infinite regress when the legitimacy of all positive law, including the constitution, is theoretically constructed as depending on a democratic decision, because the procedures of constitution making cannot themselves be brought about in an act of political autonomy. 37 Habermas s reaction to this problem is to interpret the regular operation of constitutional democracies as a perpetuation of the constitutional moment such that each generation determines the meaning of the system of rights for itself: [I]n my view, a constitution that is democratic not just in its content but also according to its source of legitimation is a tradition-building project with a clearly marked beginning in time. All later generations have the task of actualizing the still-untapped normative substance of the system of rights laid down in the original document of the constitution. 38 From this point of view, the pouvoir constituant does not appear on the scene in the pre-legal situation of founding but only when it is institutionalized as an association of legal consociates and equipped with the procedures necessary for making decisions of democratic quality. According to its proponents, this account has the advantage of enabling us to decouple the democratic ratification of the constitution from the moment of founding. The citizens are compensated, as it were, for the fact that revolutionary beginnings often occur under democratically deficient circumstances in that they get the chance to incrementally consent to the basic legal order: In this view, a legitimate constitution need not be fully satisfactory from the start.... It takes advantage of the fact that constitutions are meant to be amended. 39 Moreover, it is argued that the idea of a permanent founding helps to overcome the binary understanding of democratic legitimacy, which is rightly criticized as over-simplified. Instead of assuming, in an all or nothing manner, that the acceptance-worthiness of constitutions depends (exclusively) on their origin, we can turn to the historical learning processes that ideally lead to a better realization of the system of rights and identify varying degrees of democratic legitimacy. 40 To be sure, nothing speaks against searching for sources of legitimacy that are located in the autonomous decisions of the constitutional subject but not at the historical origin of the constitution. The fact that constitutions are open to revision significantly contributes to their democratic legitimacy. 41 However, it seems questionable to assume that this justifies the complete neglect of the genesis of political systems that accompanies the idea of conceiving of the constitution as a project that makes the founding act into an ongoing process of constitution-making that continues across generations. 42 One only needs to bear in mind the case of constitutions imposed by external actors (be it in the context of decolonization or post-war occupation) to make it plain that the virtual perpetuation of the founding moment cannot compensate for every conceivable deficit of original constitution making. 43 The fact that constitutions remain open to change does not render the question of the democratic quality of their origins obsolete. It seems unhelpful to offset the mode of constitutional revision against the mode of revolutionary constitution making. Moreover, Habermas not only neglects the pouvoir constituant in the mode of revolution but conceives of the process of specifying the system of rights as one of ordinary lawmaking rather than constitutional revision. To make this plain, we need to ask what procedures he suggests political communities should invoke to propel the ongoing process of constitution making. 44 The answer shows that Habermas does not even deal with the constitution as an object of political autonomy but rather conceives of it as a precondition of self-legislation that should be kept as stable as possible. According to his proposal, it is ongoing legislation within the regular system of government that carries on the system of rights by interpreting and adapting rights for current circumstances, not a periodically reactivated pouvoir constituant that procedurally bypasses the constituted powers and changes constitutional norms. 45 The citizens are meant to give concrete shape to the system of rights by making use of their participatory rights in the ordinary process of lawmaking. Thus, in Habermas s account the conditions of democratic legitimacy for constitution making are simply those that apply for regular legislation. The imperative that it must remain the privilege of the democratic legislator to specify the material content of the system of rights might even lead one to the conclusion that Habermas intends to give up the division and hierarchization of constituent and constituted powers. 46 And indeed, he states that his account levels off the threshold between constitutional norms and ordinary law. 47 However, this leveling takes place on the dimension of philosophical interpretation, not on the organizational dimension of decision-making

6 56 Constellations Volume 24, Number 1, 2017 procedures. Ordinary lawmaking is merely thought of as a permanent process of founding. In other words, Habermas s theory of constitutional democracy does not preclude the establishment of special procedures that enable processes of constitutional revision without the involvement of the institutions of the regular system of government as a matter of principle. Still, the system of rights allows not for the reactivation of constituent power but only for the actualization of its own normative substance through law-giving (Gesetzgebung). 48 The option of a fundamental transformation of the political system does not find a place in Habermas s account. This limitation seems problematic, given that the core idea of constituent power is to put the organization of public authority at the citizens disposal. The lack of an autonomous role for the pouvoir constituant cannot be criticized from an external perspective only; it represents an internal blind spot of Habermas s democratic theory. Of course, it is plausible that legislation fulfills the function of specifying the details of the system of rights as positivized in the constitution (e.g., the concrete implications of a right of free assembly). But the legislative work of specification cannot start out from the philosophical construct of the system of rights: it presupposes the existence of positive constitutional law and is significantly predetermined by its structure. When the abstract placeholders are to become a constitution, decisions need to be made that concern the legal framework for ordinary legislation itself. For example, should the political system be a presidential or a parliamentary democracy, should it include a constitutional court and which competences of judicial review should this institution have, etc.? Habermas does not give any indication how such issues could be decided democratically in founding moments (or in later processes of constitutional revision) because his analysis targets the constituted practice of self-legislation. Accordingly, the system of rights cannot inform us about the procedural criteria to which the exercise of constituent power should conform. We have to change the focus and to conduct a rational reconstruction of the practice of constitution making. 4. A Rational Reconstruction of the Practice of Constitution Making The exercise of constituent power is not an abstract normative aspiration but a real-world practice. All over the world, citizens participate in the making and amendment of constitutions, first of all in an electoral form, via representative institutions and direct democratic mechanisms, but also in a deliberative form, as actors in the public sphere or participants of mini-publics. 49 For a rational reconstruction, we first need to identify the inherent normative substance of this practice. Only to the extent that the practice has a core of existing reason, that is, discursively justifiable elements, does it qualify for a reconstructive analysis that asks under what conditions all participants could agree to the practice in a rational discourse. Thus, we have to work out the often idealizing or even counterfactual presuppositions that the citizens de facto associate with constitution making and that find their expression in legal texts, procedural rules, and participants behavior. 50 An analysis of these sources leads to the conclusion that constitution making operates on the basis of the implicit assumption that it represents a democratic practice of free and equal individuals. A first point of reference for this presupposition can be found in preambles, which often present constitutions as the result of an exercise of political autonomy. 51 Formulas such as the famous We the People suggest that the basic legal order originates from a democratic decision-making procedure. Even though these formulas usually do not mirror the historical reality of the founding process, they are not just solemn declarations, but reflect the normative expectations that the participants have with regard to constitution making and that at least need to be presented as having been fulfilled. 52 For example, even the Basic Law, which was drafted and passed in an anything but participatory process, presents itself in the preamble as a constitutional order that the German people have given themselves in the exercise of their constituent power. That the practice of constitution making is idealized in this way as an act of free and equal individuals expresses the implicit assumption that constitutions should be based on a democratic decision. Another indicator is the political behavior of citizens in constitutional democracies. When citizens accept the results of ordinary lawmaking as legitimate even though they disagree with them, this does not only indicate, as Habermas argues, that they assume that the procedure of legislation fulfills the normative requirements of selfgovernment and should thus be obeyed. 53 It also points to the presupposition that the policies in question are the output of a decision-making procedure whose structure the citizens have themselves determined. The same applies to demands uttered in the public sphere that political struggles should be carried out within the limits of the constitution. Such statements presuppose that the constitution is a set of rules for the political process that all participants have agreed upon in their exercise of constituent power and whose observance can thus be demanded with good reason. However, the plainest manifestation of the presuppositions that underlie the practice of constitution making can be found at the level of procedures. First of all, there is the central role of electoral forms of authorization. In most of the 460 processes of constitution making analyzed in the comparative constitutions project an elected institution (such as a constituent

7 Constituent Power: Openness and Containment: Markus Patberg 57 assembly or a regular parliament) was involved. 54 Moreover, mechanisms of direct democracy are regularly invoked for constitutional decisions. Between 1975 and 2000 at least one national referendum concerning the basic legal order was conducted in 39 of the 58 existing functioning democracies with more than three million inhabitants. 55 These facts illustrate that it is far from irrelevant, from the perspective of the parties involved, how a constitution comes into the world as long as it carries democratic content. Rather, the way in which citizens relate to their constitutions is based on the selfunderstanding that these are orders that have themselves been established in democratic processes among free and equal individuals and that can also be revised in this way: [T]here is now, effectively, universal acceptance that the authority for a Constitution must derive, in one way or another, from the people of the state concerned. This idea is not, of course, new, but it has been reinforced by the aspirations of people everywhere in the aftermath of the overthrow of authoritarian regimes. Moreover it now has a practical as well as theoretical dimension. People now expect actually to be involved in the constitution-making process and not just symbolically associated with it. 56 Increasingly, political communities experiment with participatory forms of constitution making and constitutional revision, such as in British Columbia (2004) and Ontario (2007) as well as in Ireland ( ), where deliberative citizen assemblies were initiated in order to deal with electoral reforms and, in the case of Ireland, issues of basic rights (such as same sex marriage). 57 In the UK the debates about the Scottish independence referendum (2014) have evoked the idea that the citizens should have the right to call constitutional conventions. 58 In Tunisia, a revolutionary movement succeeded in initiating an inclusive and egalitarian constitution-making process ( ). 59 In Iceland, the dramatic circumstances of the financial crisis led to an attempt to put the political system on a new legal basis that caused much sensation due to its highly participatory character. A mini-public prepared the drafting process of a constitutional council that interacted with the citizens via digital channels and made use of techniques of crowdsourcing ( ). 60 While all these processes may have been characterized by deficiencies, the various deliberative and aggregative mechanisms of democracy invoked clearly express the normative expectation that the exercise of constituent power should follow principles of freedom and equality. More specifically, in light of the aforementioned evidence it seems reasonable to assume that the practice of constitution making operates on the presupposition that it is an enterprise of free and equal individuals who democratically decide the basic structure of their democratic polity. Starting from this idealizing assumption I suggest a reframing of the thought experiment that leads Habermas to the system of rights. The core idea is to use a hypothetical process of constitution making in order to rationally reconstruct the procedural and substantive requirements of democratic legitimacy that apply to real-world processes of constitution making. In contrast to Habermas s thought experiment, the rational discourse of the imagined founders is guided by the following question: Which entitlements do we need to confer on each other if we want to establish, in a democratic decision-making process among free and equal persons, the basic legal order of a political system that enables the self-legislation of free and equal citizens? The concept of entitlements is neutral vis-à-vis juridical and non-juridical categories because the participants reciprocal obligations can be legally institutionalized as basic rights only within the future polity but not for the revolutionary process of founding. The distinction between persons and citizens expresses the fact that the individuals involved obtain the status of members in an association of legal consociates only after constitution making has taken place. Given the contrast between the pre-legal and the legal state of affairs, the rational reconstruction of the constitution-making practice needs to involve two steps. More specifically, the overarching question of the hypothetical discourse has to be split into two questions, one concerning the dimension of legally institutionalized results, the other addressing the dimension of pre-legal procedures of democratic constitution making. In the first step, the participants ask the question already formulated by Habermas: [W]hat rights must we mutually accord one another if we want to legitimately regulate our common life by means of positive law? 61 Only after the imagined founders have agreed what constitutional content needs to be realized in order not to contradict the point of their practice in a crucial respect the establishment of a political system of self-legislation do they turn, in the second step, to the problem neglected by Habermas: the conditions under which real persons could legitimately codify the abstract categories of basic rights in a process of constitution making. Then, the leading question is: Which non-juridical principles do we need to intersubjectively regard as action-guiding if we want to decide in a legitimate process which constitutional norms should give concrete shape to the system of rights? Let me first deal with the question of constitutional content. What substance would the imagined founders, as a result of their rational discourse, regard as indispensable? First of all, it stands to reason that Habermas s system of rights would find confirmation in the revised thought experiment. The constitution-makers aim to establish a polity that enables its members to govern themselves by means of positive law. Thus, the reasons

8 58 Constellations Volume 24, Number 1, 2017 for the basic rights categories (i) to (iv) continue to be valid. 62 However, in contrast with Habermas s rational reconstruction, the founders explicate the performative meaning of the practice of constitution making. Thus, they expand the system of rights with a category that concerns the citizens competence to engage in constitutional politics within the constituted order. More precisely, the hypothetical constitution-makers regard it as rational to provide for rights that enable the members of the political community to engage in democratic processes of constitutional revision. They introduce the following category, which permanently subjects the organization of public authority to the control of the citizens: v. basic rights (whatever their concrete content) that result from the autonomous elaboration of the right to an equal opportunity to participate in revisions of the constitution that are in accordance with the system of rights. A first reason for this category is the non-identity between original constitution-makers and later generations of citizens. 63 As the core idea of the constitutionmaking practice consists in subjecting the basic structure of democratic polities to the political autonomy of their members, each generation should have the opportunity to put the commitments of their ancestors to the test and to assess whether the constitution in its current form meets their concerns. A second motivation is the legal precariousness that characterizes the situation of constitution making. The imagined framers are aware that it is much more difficult to ensure compliance with requirements of democratic legitimacy in the context of new beginnings than it is within constituted political systems. Thus, they insist that decisions made in the founding moment should not be cast in stone. Rather, the citizens should be provided with formal procedures that allow them to revise the constitutional order if they see fit to do so. The only barrier to this right to revision is the system of rights itself, which is codified in the constitution and renders certain reforms illegitimate. 64 To put it differently, the hypothetical discourse leads to the conclusion that the participants of real-world constitution making can realize the performative meaning of their practice only if they establish basic rights that provide the citizens with a permanent option of renegotiating the organization of public authority. The division and hierarchization of constituent and constituted powers (which, in the moment of founding, primarily represents the contrast between the pre-legal and the legal state of affairs) needs to be legally institutionalized within the constitution as a form of separation of powers. As long as the pouvoirs constitués are in a position to self-interestedly initiate or block constitutional change, the political autonomy of the citizens does not extend to the constitution. For that reason, the imagined constitution-makers commit to the possibility of a legal reactivation of constituent power in the mode of reform and deny the institutions of the regular system of government any competence to engage in constitutional politics. This institutionalization of the pouvoir constituant within the constitution implies the rejection of constituent power in the mode of augmentation, that is, of constitutional revisions involving a rupture of legality. 65 With the expanded system of rights we have defined the substantive target corridor of a democratically legitimate process of constitution making and can turn to the question of what conditions the hypothetical framers of our thought experiment would impose on the procedure of founding. To begin with, it is clear that the goal cannot be to determine categories of juridical rights, because the medium of law is available only subsequent to the act of constitution making whose regulation is at stake. While in the case of the explication of the system of rights the task of the imagined founders could be described as an application of the discourse principle to the legal form, 66 we now have to understand their deliberations as an application of the discourse principle to the pre-legal process of constitution making. 67 At this level, the virtual discourse aims at non-juridical principles that need to be complied with or practiced in the revolutionary process of constitution making in order for it to enjoy democratic legitimacy. The hypothetical constitutionmakers introduce a set of non-juridical principles that the participants of real-world processes of constitution making need to regard as authoritative, to the extent that they want to carry out their practice of establishing a political system of self-legislation in a democratic decision-making process among free and equal individuals under discursively justifiable conditions: 68 a. Non-violence. The situation of extra-legality must not be exploited by any actor by pushing through their goals in the process of constitution making on the basis of threats or the actual use of violence. b. Inclusiveness. No person who will be subjected to the future legal order and the public authority exercised on its basis must be excluded from opinion- and will-formation in the founding process. c. Equality. All participants have the same degree of formal influence in form of a right to vote in the election to a constituent assembly or in a constitutional referendum. d. Discursiveness. The struggle about the codification of the system of rights and thus about the content of the constitution proceeds as an argumentative exchange.

9 Constituent Power: Openness and Containment: Markus Patberg 59 At first sight, non-violence might appear as a selfevident precondition of a normatively adequate exercise of constituent power and its explicit mentioning more or less superfluous especially considering that the principle of discursiveness seems to imply the commitment to a peaceful mode of interaction. On the other hand, constitutional theory is still troubled by the postulate of the boundlessness of the pouvoir constituant, which in turn reinforces the sceptics impression that the recourse to the concept of constituent power goes along with an affirmative attitude vis-à-vis the arbitrary and potentially violent exercise of political power by a multitude. 69 In light of these reservations, it constitutes an important insight that non-violence can be systematically explicated, through a rational reconstruction, as an enabling condition of the practice of constitution making. From the perspective of the imagined framers, there can be no doubt that it contradicts the performative meaning of a founding process among free and equal individuals when a part of the future political community violently imposes their views on the rest. Furthermore, the hypothetical constitution-makers agree upon a principle of inclusiveness, which takes the form of the all-subjected principle that is also authoritative for the constituted practice of self-legislation. 70 This principle, which states that no person who will be subjected to the future legal order may be excluded from the process of constitution making, not only applies to formal acts of voting but to the whole process of opinion- and will-formation, that is, to decision as well as deliberation. The imagined founders recognize that constitution making cannot be interpreted as a democratic decision of free and equal persons as long as the consultations that lead to a constitutional draft that is put to the vote proceed in exclusive circles and under intransparent conditions. 71 Only an inclusive process of public deliberation provides for a reasonable chance that all social perspectives and relevant arguments are taken into consideration. At the deliberative dimension, even cosmopolitanism in one country, that is, the involvement of speech acts of foreigners who are not members of the future association of legal consociates, is an option that should not be precluded. 72 Since the hypothetical framers are in search of the enabling conditions of a constitution-making practice among free and equal individuals, it stands to reason that they also agree on a principle of equality. It is important to note that a question that is highly relevant to normal politics in constitutional democracies cannot play a role in this context; namely, whether political equality can be reduced to procedural equality or whether the economic and social preconditions for the effective use of formal rights to participation need to be taken into account as well. 73 Such political issues cannot be predetermined with a method of rational reconstruction that addresses an abstract level of performative meaning. Rather, substantive questions of constitutional design need to be decided by real-world constitution-makers who agree on a specific codification of the system of rights in democratic processes of opinion- and will-formation. From the perspective of the imagined founders, the practice of constitution making merely implies the formal equality of participants. The members of the future association of legal consociates should have an equal vote in the election to a constituent assembly or in a constitutional referendum. Last but not least, the hypothetical constitutionmakers introduce a principle of discursiveness that prescribes that the founding process should be structured as an exchange of arguments rather than as a bargaining situation among self-interested actors who try to reach a compromise. 74 This proviso is grounded in the following two considerations. First, only a discursive mode of decision-making seems to justify the expectation that the process of constitution making will lead to a political system that conforms to the system of rights. The abstract categories of basic rights explicate the core elements of a discursively justifiable system of self-legislation, which real-world constitution-makers will be more likely to establish if they engage in deliberation rather than in interest-based bargaining. 75 To be sure, this epistemic function of the discursive mode does not imply that the process of opinion- and willformation needs to lead to a consensus on the future constitution. As long as majority decisions (that are de facto unavoidable) stay within the limits of the system of rights, they may be interpreted as a legitimate way of registering interim results that may be put up for discussion again at a later point in time. 76 Second, it seems that a discursive mode is necessary in order that the process of constitution making can live up to its own logic of a democratic practice. From the standpoint of individual members of complex societies, we can speak of political autonomy only to the extent that its exercise is not supposed to take place merely via voting but also through the medium of talk. 77 In comparison with other modes of initiating decisions, public deliberation is principally suited to reduce the distance between the citizens and the fora of collectively binding decision-making because political arguments may travel, via the structures of mass communication, between informal and formal political arenas. 78 Moreover, non-discursive forms of coordination seem to be inadequate when it comes to ensuring compliance with the principle of inclusiveness. Only discourses principally provide openness for the contributions of all participants, while the struggle for compromise between particularistic interests privileges actors who command bargaining power.