Once the problem is hypostatized in this way, the paradox of democratic founding leaves us with a discomforting dichotomy between the “two bodies” of the people. On the one hand, we have the picture of an “amorphous multitude” incapable of any positive or constituent action whatsoever; on the other hand, we have the opposite picture of “the people” as a constitutionally organized corporate body capable of acting only in and through the institutional edifice of the state. This strikes me as a false dichotomy. There is a whole gray area extending between its poles, and the politics of democratic founding actually takes place in that gray area. If we are to reorient ourselves in this uncertain territory, we need to think about the people differently: neither as an amorphous multitude nor as a corporate body, but as a community of action in the making. And to do so, we also need a different vantage point, a different interpretive angle, from which to approach the paradox of democratic founding.
In this book, I propose to take the paradox under consideration as a heuristic problem. By “heuristic,” I mean two things at once, both of which are related to discovery and problem solving, though from different points of view. From the observer point of view (i.e., the perspective of the political theorist), a heuristic approach stands in opposition to an aporetic one. On this register, the basic idea I want to defend is that the paradox of democratic founding does not necessarily lead us into an impasse, but opens up to us a gray area, in which the conditions of democratic peoplehood are in the making. The heuristic task of the theorist is to discover and navigate this gray area.29 From the participant point of view (i.e., the perspective of political actors), I suggest that the quest for democratic founding is best understood as a process of problem solving. Take for instance the question of how to remain under the law while at the same time making the higher law. Citizens and framers typically grapple with such questions at moments of foundation. Even if logically irresolvable, questions of this sort can be politically negotiated, and how they are negotiated would make all the difference in the world. To recapitulate, then, viewed as a heuristic problem, the paradox of founding does not rule out the possibility of a democratic act of foundation but rather invites us to investigate, doggedly and seriously, how to make sense of it.
Overview of the Chapters
In what follows, our inquiry begins with an observation about two central tenets of modern constitutionalism: first, the constitution is the product of a deliberate founding act, and second, it features the people as its author and ultimate source of legitimacy. Chapter 1 examines how these two motifs relate to each other. In contrast to a longstanding and influential tradition in modern and contemporary political thought, I argue that democratic theory can no longer heavily draw on the abstract notion of “the people,” which informs hypothetical conceptions of popular sovereignty. What this means is that constitutional claims of popular sovereignty cannot be clearly severed from the modus operandi of the founding act, and citizens themselves must be included in the process of constitution-making.
In Chapter 2, I take up the vexing question of whether a democratic act of constitution-making is conceptually possible. The chapter offers a survey of canonical and contemporary takes on the paradox of founding, beginning with Rousseau’s The Social Contract as well as the classical texts of the American and French Revolutions, and extending to the works of Jacques Derrida, William Connolly, Bonnie Honig, and Frank Michelman. But it also has a critical agenda, particularly with regard to the ways the paradox of founding is hypostatized in contemporary political theory. In contrast, I propose to take the paradox under consideration as a heuristic problem, one which allows us to think of the people neither as an amorphous multitude nor a corporate body, but as a community of action in the making.
The next two chapters are intended to pursue this possibility in the company of Rousseau and Arendt. In Chapter 3, I look at the complicated but often poorly analyzed relationship between the people and the lawgiver in Rousseau’s work. Inspired by his reflections on Corsica, I argue that it is not the lawgiver who calls forth the people but the other way around. That is to say, it is the collective agency of a people in the making that prepares the suitable conditions for legislation. Chapter 4 offers a close reading of Arendt’s Jewish writings, most of which were penned during the turbulent 1940s. Attending to the role of collective action in transforming and redefining “who we are,” these essays contain a rich reflection on the formation of the people in and through the shared experience of action, and especially the kind of world-building action oriented toward the creation of a “homeland.” Taken together, thus, these chapters are meant to move us beyond the dichotomy between the “two bodies” of the people and to reorient our thinking about the possibility of democratic founding.
Chapters 5 and 6 focus on the problem of legitimacy. The central question that I aim to address in these chapters is the following: if the people themselves are not and can never be “the people” in whose name democratic constitutions claim to speak, then, are we not supposed to conclude that there is an unavoidable moment of “performative force,” a moment of “original violence,” which impugns every act of foundation with a democratic intent? My short answer is: it depends. Acts of foundation with a democratic claim may indeed turn out to be hegemonic enterprises, concealing their own groundlessness. But there is no conceptual necessity here, and the process of constitution-making itself can become a legitimacy-generating praxis.
More specifically, engaging with Arendt’s On Revolution in Chapter 5, I suggest that the classical doctrine of constituent power, developed by Abbé Sieyès and later selectively appropriated by Carl Schmitt, cannot avoid the charge of foundational illegitimacy. This is why, at least in part, Arendt does not trace the legitimacy of a new constitution back to the allegedly united will of “the people” understood as a counterfactual macro-subject, but to the way and spirit in which the act of foundation is carried out. Based on a reconstructive reading of On Revolution, I argue that Arendt thereby points toward an account of constitution-making in which the question of “how” enjoys the place of pride, and that this is her most essential contribution to a theory of democratic founding.
Chapter 6 moves on to negotiate the problem of legitimacy from the standpoint of deliberative democratic theory in general, and in dialogue with Habermas in particular. A central tenet of deliberative democratic theory is that law and democracy belong together, or that they presuppose one another at a fundamental conceptual level. But is it possible to retain the interdependence of law and democracy at moments of foundation? How to exercise popular sovereignty in such a way as to create a new constitution while at the same time remaining “under the law”? I argue that deliberative democratic theory offers a fruitful paradigm to negotiate this question. More specifically, I will try to show that it is possible to envision the reciprocal establishment of legal authority and democratic legitimacy, step by step, in a series of back and forth movements—so that the interdependence of law and democracy are performatively retained and realized in the course of building a constitutional democratic regime.
In the Conclusion, I draw together the various strands of argument thus far made, and bring them to bear on broader issues at play in contemporary democratic theory. At the same time, however, these concluding reflections are meant to highlight the basic insight that has stimulated this book in the first place: the founding act of the people is not a fantasy of democratic idealism, but it is a living and action-orienting idea