Constituent Partisanship: Articulation, Activation, Exercise

Questions of agency in constituent power are routinely answered by reference to its exercise. This is quite a narrow strategy, since the exercise of constituent power is but one of its forms of manifestations, in bringing about an effective initiation or change of a constitutional structure. My hunch is that this is not sufficiently complex since it disregards other behavioural manifestations of constituent power –its articulation and activation. All three manifestations are currently undergoing major changes, since in contrast to intellectual history, where the agent and scope of constituent power seemed self-identical and fixed – in Sieyes‘ writings by natural law, in Schmitt’s by the facticity of the modern state, today both seem to undergo shape-shifting processes. How can we talk about agency when we can’t fix the constituency of agents in advance, nor can we be sure, for example in the supranational context of the European Union, but equally in the statist context of substate national collectives, about the final framework in which constituent power is to manifest itself. In this context, I offer an action-theoretical distinction from the perspective of political theory. Coming from political theory, I am most interested in legitimate manifestations of constituent power. I do not deny that it can be usurped, and effectively exercised by its usurpers, yet will still create valid law. But since I am interested in legitimacy, I want to use the tripartite distinction between articulation, activation and exercise to trace a normative distinction. This is the reason why I distinguish between self-authorising and non-self-authorising manifestations of constituent power. While all articulation of constituent power is self-authorising, yet necessarily inconclusive (i.e. does not bring about an effective legal change or innovation, does not make a difference in what is constiutionally binding), all exercise I take to be factive.