Towards an Institutionalist Vision of Constituent Power?

Abstract

is because the substantive principles of democratic constitution-making assumed by his theory can only provide a self-su ffi cient basis for discerning legitimate displays of constituent authority if we already know (beyond the possibility of legitimate contestation) the speci fi c participants and fora of participation that they are supposed to govern – precisely the kind of knowledge that is precluded by the disruption of existing institutional structures. 8 Abstract principles, after all, cannot replace either clear ex-ante rules or, in their absence, concrete ad hoc decisions when it comes to determining the ‘ proper ’ con fi guration of the law-authorising demos, as such principles are not well suited to answer the organisational questions involved in demarcating the boundaries and forms of political participation – where the decision to include or to exclude, especially in ‘ border-line ’ cases, will in the fi nal analysis remain normatively unjusti fi able. Consequently, to speak of a constituent power capable of reaching all the way down into the constitutional foundations of the polity is to situate the con fi gu-ration of the constituent subject beyond the realm of a priori norms, and to place the decision about the precise scope and mechanisms of constituent democracy in the hands of a power that, far from being exercised by a commonly identi fi able demos, is itself de fi nitional of that demos. Which is why I spoke earlier of usur-pation as one of constituent power ’ s characteristic features.