Within constitutional scholarship, the power to effect constitutional change is called the “constituent power”. Exercises of this constituent power, often invoked in singular historicised constitutional moments, are conceptualised as a coming together of a community or constituency to confirm, affirm or ascent to the particular constitutional document. There is little space within this construction of constituent power for dissent. For Emmanuel Sieyès, who first coined the term “pouvoir constituant” or constituent power during the French Revolution in 1791, the constituent ‘submits himself in advance […] by a free act of his own will, reserving only the right to leave the association […] if the laws that it makes do not suit him’. The right to leave an association evokes in a modern reader the image created in Ursula K Le Guin’s “Walking Away from Omelas”. Whilst in Le Guin’s short-story, “walking away” is indicative of a rejection of the harms that can underpin utopian societies, in NK Jemisin’s response to Le Guin the characters “Stay and Fight”, refusing to abandon the postcolonial utopian project. The different approaches to refusal by Le Guin and Jemisin open up questions about the role of refusal (and in particular the refusal to participate in social norms) as constitutive in constitutional scholarship. In Bonnie Honig’s feminist theory of refusal, Euripides’ Bacchae is used to explore the “slow regicide”, which starts when the women refuse to work. The refusal to perform gendered-roles, or the withdrawal of acts of service, is a rejection of how modern constitutionalism (and in some instances the constitution) has constructed the role of women, and as assertion of an alternative constitutional arrangement. Drawing on feminist science fiction utopias and feminist manifestos, this paper discusses feminist refusal as an exercise of constituent power.
