A central idea of modern democracies is that constitutions are legitimate only when ultimately derived from the people. “We, the people” have constituent power, meaning that we have the supreme authority to make and remake the constitution under which we live, including who ought to be included in the demos. Still, in the last decades the constituent power of the people has turned into a political question in its own right. This politicization is both due to growing migration, and to increased mobilization for self-determination by various groups, such as secessionist movements and indigenous peoples. Indigenous peoples represent a case in point – a critical case – as their recognition in international law as distinct peoples with a right to self-determination challenges the unified understanding of the people behind contemporary democratic constitutions. They raise a difficult question: Given that there are two (or more) actors claiming to have constituent power within a state, how is one to judge in a conflict between them?
In this paper, we distinguish between four theoretical conceptions of constituent power, and ask how they address a situation where there are two (or more) claims to the title of constituent power. We show that while democratic and radical in their aspirations, neither conception gives equal standing to the actors in the conflict. Instead of offering procedures which allow the actors to exercise self-determination on equal terms, it pits one group against another in a struggle for (co)existence. It sharpens the conflict between them, either by steering the situation towards confrontation, or more likely, towards the domination of one group over the other. We argue that in order to find a principled way to address such conflicts, it is necessary to sever the concept of constituent power from that of the sovereign people, on the one hand, and democracy on the other. The constituent power of the people is not per se democratic; whether it is depends on the spirit that animates it. The paper ends with some remarks about what this argument entails for the relationship between constituent and constituted power, and conventional understandings of the relationship between indigenous peoples and settler states.
