Constituent Power Beyond the State: Articulation, Activation and Exercise

The paper is concerned with three modes of manifesting constituent power. While articulation is a free-for-all, the exercise of constituent power is under stringent justificatory constraints. Despite its prominence in contexts beyond the state, little research exists on activation, i.e. the bringing about or shaping of a pouvoir constituant. By an ‚activation‘ of constituent power, I do not mean an awakening of an already existant yet dormant power (even if, as in the case of Scotland in 2014, its sovereign may have been sleeping for many centuries). I mean the shaping, tweaking and creating of a new actor, be it in form of an ex nihilo creation, a fusion between existing pouvoirs constituants (as in the case of the United States, arguably after the Civil War, and as is arguably the case in the European Union after Maastricht) or the fragmentation of an existing pouvoir constituant into two or more units (Catalonia vs Rest of Spain). Recent research has focussed on various forms of political agency as activation of pouvoirs constituants: independence referenda staged by secessionist movements can serve as a prime trigger for bringing about their activation (Tierney 2015, Krisch 2017). In a similar manner, practices of civil disobedience and other civil society activities such as mock proclamations may over time activate new pouvoirs constituants (DiEM25, 2017; European Balcony Project, Nov. 11, 2018; Ackerman 2015). Of special relevance for purposes of legitimacy is the intervention of gouvernmental actors invoking constituent power despite their ‚constituted‘ nature (Schmitt [1921] 2013). I argue that ‚ex nihilo‘ creation should be regarded with suspicion, and that fusion is less problematic than fission from the point of view of a path-dependent conception of legitimacy.