Debates on the boundary problem seem irresoluble because they usually conflate the notions of demos and constituent power. But the demos (or ‘the people’) is an entity, not a power. Moreover, the notion of demos is inherently ambiguous: it designates the people in a collective, trans-generational sense, but also in an individual, contemporary sense. It designates the people within a political collective; but can also be applied to the people that are excluded. It can point to the people within a constitutional order, but also to the pre-constitutional people. In short, demos can designate ‘the people’ in different capacities or moments of the legal-political process, but it always points at an entity. Constituent power means something different in relation to these separate notions of demos.
Disambiguating demos in relation to constituent power is a first, but insufficient step in disambiguating the boundary problem. The prevailing conflation of demos and constituent power has also caused scholars to overlook the important distinction between, on the one hand, ordinary law-making and political power and, on the other hand, higher law-making and political power. In other words: the literature on the boundary problem has largely ignored the distinction between ordinary and higher law-making and power. Perhaps unsurprisingly, they either sigh and call it a ‘vicious circle’, or take recourse to abstract, a-political normative principles such as the all-affected principle and the all-subjected principle.
Is there a way out of this mess? This paper proposes that this requires (1) disentangling ‘demos’ (in its many varieties) from ‘constituent power’; and (2) introducing the distinction between (original) constituent power, constituted constituent power, and constituted power to debates on the boundary problem. This allows for recognition of the fact that there is only an ‘irresoluble resolution’ to the boundary problem. That is, democratic foundations are never resolved or complete, but must be continually reiterated in democratic claims-making processes.
