Insurgencies Constituent Power And

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Sandra

Buckley

Michael I la rd t

Brian

.Massumi

THECB?

O U T O F

B O U N D S

15 Insurgencies: Constituen t Power

and

the

ModernState

Antonio

Negn

14

Whe n Pain

Str ikes Bill

Burns,

Cathy Busby,and

Kim

Sawchuk,

Eds.

13 Critical Environ ments : Postmodern Theory and

the

Pragmatics

of the

Outside

Gary Wolfe

12

Metamorphosis

of the Body os eGil

11 The New

Spinoza

War ren MontagandTed

Stolze,

Eds

1O Power

and

Invent ion:

Si tuat ing Sc ience Isabelle Ste ngens

9

Arrow

of Chaos:

Romanticism

an d Postmodernity IraLivingston

8 B e c o mi n g -Wo ma n CamillaGnggers

7 APotential

Politics:

Radical

Thought in

Italy

PaoloVirno and Michael Hard t, Eds.

6

Capital

Times:

Tales

from

th e Conquest of

Time E n c A U i e z

5 The Yea r of Passages Reck Bensmaia

4 Labor of Dionysus:

A

Cri t ique

of the

State-Porm Michael

Hardt

and

Antonio

Negn

BadAboriginal Art: Tradition,

Media

r

and

Technological Horizons Erie

Michaels

2 The

Cinematic Body

Steven

Shaviro

1 The

Coming Community Giorgio

Agamhen


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Insurgencies

Constituent Powerand the Modern State

AntonioNegri

Translated by

Maurizia

Eoscagli

Theory

Out of Bounds

Volume

15

Univers i ty

of Alinnesota Press

Minneapolis London


4/378

TheU nivers i ty

of

Minnesota Press grateful ly acknowledges f inancial assis tance provided

fo r

the t r ans lat io n of this book by the McK night Found at ion.

The

University

of Minn eso ta Press grateful ly acknowledges the contribution of

Michae l

I lardt andTimothyAlurphy to the publication of this book;

they provided invalu able assis tancein t rans la t ing cer t a in

sect ions of the ma nusc ript and in edi t ing the t ran slat io n.

Copy right 1999 by the R egents of the U niversi ty of M inn eso ta

Original ly publ ishedusI I

poterc

costituentc:saggio sullealternativedel -modenw,

copyright 1992 by SugarCo.,

Carnago

(Varese).

All

rights reserved.

No par t of this pu bl ica t ion may be

reproduced, s tored

in a

r et r ieval system,

or

t ransmit ted,

in any

form

or by any

means ,

electronic, m echa nical , photocopying ,

recording,or otherwise, wi thout

th e prior wri t ten permissionof thepub l i sher .

Publ ished

by the

University

of

Minnesota Press

111ThirdA venue South, Sui te

290

M i n n eap o l i s ,

MN

55401-2520

http://www.upress .umn.edu

Printed

in theUnitedStates of America on acid-free paper

I . I B R A R \

O K C O X G R K S S CV l ' A L O G l N G - I N - P U B L I C A T I O N

D A T A

Negn,

Ant onio, 1933-

[Potere c ost i tuente.

English]

Insurgencies

:

const i tuent power

and the

modern s tate

/

Anton io

Negn ;

translated

by

Maurizia

Boscagli.

p. cm.

(Theory

out of

bounds

;

v.

15 )

Inc ludes

bibl iographical references

and index.

ISBN 0-8166-2274-4

(he).

ISB N 0-8166-2275-2 (pb)

1. Cons t i tu t ional la w Phi losophy.

2.

Const i tuent power.

3.

Revolut ions.

I.

Title.

II .

Series.

K3165.N4413 1999

3 4 2 ' . 00 1 d c2 l

99-30982

The Universi tyofMinneso ta

isan equal-opportunity"educator an d employer.

1 1

10 09 08 07 06 05 04 03 02 10 9 8 7 6 5 4 3 2
http://www.upress.umn.edu/http://www.upress.umn.edu/


5/378

Contents

Foreword

Theory

Out of

Bou nds Series Editors

vi i

Chap t e r

1. Constituent Power:The

Concept

of aCrisis

On theJuridical C oncept ofConstituent Power 1

Absolute Procedure, Constitution, Revolution 2

From Structure to the Subject 2 5

c h a p t e r 2. Virtue and Fortune: The Machiavellian Paradigm 37

The

Logic

of

Time

and the

Prince's Indecision

31

Democracy as Absolute Government and the R eform of the R enaissance 61

Critical Ontology

of the

Constituent Principle

81

Ch ap t e r

3. The

Atlantic

Model

and the

Theory

of

Counterpower

Mutatioand

Anakyclosis

9 9

Harrington: Constituent PowerasCounterpower 111

The Constituent Motor and theConstitutionalist Obstacle

128

c h a p t e r 4.

Political

Emancipation in the American Constitution 141

ConstituentPower

and the

"Frontier"

of

Freedom 141

Homo Politicus

and the

Republican Mach ine

155

Crisis of the Event and Inversion of the Tendency

175

c h a p t e r 5. The Revolution and the Constitution of Labor 193

Rousseau'sEnigmaand theTimeo f the Sansculottes 193

The

Constitution

of

Labor 21 2

To T erminate the Revolution 2 3 0

c h a p t e r 6. Communist Desireand the Dialectic Restored 251

Constituent Power

in

Re volutionary Ma terialism

251

Lenin

a nd the

Soviets:

The

Institutional Compromise

2 6 8

Socialism andEnterprise 2 9 2


6/378

c h a p t e r 7. The Constitution of Strength a o s

"M ultitudeetPotentia":T he

Problem

3 0 3

Constitutive Disutopia

313

Beyond

Modernity

3 2 4

Notes

3 3 7

Index 365


7/378

Foreword

THE H I S T O R Y of modern Euro-American revolutionshas often been readby schol-

ars as a series of contrasts or alternatives. The dynamics of the A merican Revolu-

tionareopposedto the French, orperhaps both arecontrastedto the Russian expe-

rience.

Such studies

end up by

posing

th e

different modern revolutions

as

emblems

ofopposing ideological

positions

liberal, bourgeois, totalitarian,and soforth. Anto-

nio

Negri proposes, rather, thatwetracethe common thread that links these mod-

ern revolutionsandread them as the progressive developmentandexpressionof one

an d

the same concept, constituent

power.

Constituent power is the active, operative

element common to all modern revolutions and the conceptual key to understanding

them.

One canapproachtheconceptofconstituent powerthrough the

democratic practices of modern revolutions and begin by looking at the popular or-

ganizationalframeworks thata re itsexpressionsin th e

different

revolutionary expe-

riences,

such as the constituent assemblies in the American and French revolutions

or the Soviets in the Russian.

Here

wefind that con stituent power is an expres sion

of

the popular

will,

or, better, it is the power of the multitude. Democracy itself is

thus inseparable

from

the

concept

and practice of constituent power.

Throughout

the modern era, however, constituent power has

been

in

conflict withconstituted power,

the fixed

power

of

formal constitutions

and

cen-


8/378

tralauthority. W hereas constituent power opens each revolutionary process, throw-

in g open th e doors to the forcesofchange and the myriad desiresof the multitude,

constituted power closes down

the

revolution

and

brings

it

back

to

order.

In

each

of

the

modern revolutions,

the

State rose

up in

opposition

to the

democratic

and

revo-

lutionary

forces

andimposesareturn to aconstituted order, a newThermidore, w hich

either recuperated or repressed th e constituent impulses.T he

conflict

between ac-

tive constituent pow er and reactive constituted pow er is w hat charac terizes these

revolutionary experiences.

After

th e

defeat

of each revolution, constituent desires

disappeared but did not die.They burrowed underground in wait for a new time

and

a new place to spring fo rth again in revolution.

This

is the story N egri tells as he

traces

the movements of

constituent

power and its revolutions

from Machiavelli's

Florence

to the

English Revolution,

and from the

American,

to the

French

and

Russian revolutions. Each time constituent power springs forth and each time it is

beatenbackby constituted power and its

forces

oforder. How can wemakearevo-

lution,Negri askscontinuallythroughouthisstudy, that isnever closed dow n?How

can wecreate aconstituent power that isnever reined in and

defeated

by a new con-

stituted pow er?

How can wefinally

realize dem ocracy?

Weshould situate Negri's conception of constituent power along-

sidethe

other

attemptstounderstandthe centrality of the politicalin modern thought

and

society, such as M ichel Fou cault's theory of powe r and H anna h

Arendt's

notion

of

politics

and

action.

The

primary contribution

of

Negri'swork

is his

articulation

of a distinction within power between constituent power and constituted power.

This distinction provideshimbothananalyticaland anevaluative criterion that dif-

ferentiates power.

Negri

thus

forces

us to refuse any unitary conception of power

and recognize, rather,

tw o

fundamental powers

that

conflict continually througho ut

mo dernity. Similarly, mo dernity and its dev elop m ent cannot be captured in any uni-

tary conception or teleological deve lopm ent; mo dernity is instead characterized by

th e antagonistic play between constituent power and constituted power, and its de-

velop me nt is dete rm ined by their relative advances and declines. The two powers

can thus serve

as

emblems

for the

fundamental alternatives within modernity

and

the two competing notionsof thepo litical that characterizeit .

Negri's book opens in anintellectual field in which constituent

power has been recognized but continually

negated

the field ofco nstitutional and

legal theory. Legal theorists, particularly continental legal theorists, are among the

scholarswhohave devoted th e most attention to the concept of constituent power,

but asNegrishowstheyhavedistorted it and taken awayits revolutionary character,

twisting it

finally

into a support of rather than a threat to constituted power.

This


9/378

V

i i I i X

conceptual

defeat

at the hand s of legal theorists serves as an introduction to all the the-

oretical and practical defea ts that constituent power hassuffered throughout moder-

nity. From Florence to Philadelphia and St.Petersburg, the revolutionary forcesof

constituent power were

defeatedbut

only

to

rise again

in

another form

an d

another

place.Constituent power remains

the

positive alternative

of

mode rnity tha t points still

toward a future revolutionary expression.

Theory

Out ofBounds Series Editors

F o r e w o r d


10/378

O N


11/378

C onsti tuent

Power:

The

Concept

of a

Crisis

Onthe Juridical Concept of Constituent Power

TO

S P E A K of constituent power is to speakof democracy. In the modern age the

tw o

concepts have often been related,

and as

part

of a

process that

has

intensified

during the twentieth century, they have become more and more superimposed. In

other w ords, constituent powerhasbeen considerednot onlyas anall-powerfuland

expansive

principle capable

of

producing

th e

constitutional norms

of any

juridical

system,

but

also

as the

subject

of

thisproduction

an

activity equally all-po we rful

and

expansive.From this standpoint, constituent power tends to become identified

with the very concept of politics as it concept is understoo d in a dem ocra tic society.

To

acknowledge constituent power

as a

constitutional

and

juridical principle,

we

must see it not simply as producing constitutional norms and structuring consti-

tutedpowersbut primarilyas asubject that regulates democratic politics.

Yet

this is not asimple matter.In

fact,

constituent power resists

being constitutionalized: "Studying constituent power from the juridical perspec-

tivepresents an exceptionaldifficulty given the hybrid nature ofthispow er . . . . The

strengthhidden

in

constituent power

refuses to be fully

integrated

in a

hierarchical

system of norms and competencies constituent pow er always remains alien to

the law."

1

The question becomes even moredifficultbecause democracy,

too,

resists


12/378

being constitutionalized: democracy

is in

fact

a

theory

of

absolute government, w hile

constitutionalism is a theory of limited government and therefore a practice that

limits

democracy.

2

Our aim then will be to find adefinition of constituent power

within

th e

boundaries

o f

this crisis that characterizes

it. W e will try to

understand

the rad ical character of the fo und ation s of the concept of constituent power, and

the extent of its

effects,

from democracy to sovereignty,

from

politics to the State,

from

power \potere] to strength \potenza].

3

In short, we will try to understand the

concept ofcon stituent power exactly insofaras it is the concept of acrisis.

Therefore let'sfirstconsider the articulationsof the

juridical

defi-

nition

of

constituent power: they will allow

us to get

imm ediately

to the

core

of the

argum ent. A fterw ard, we will consider the pr oble m of constituent pow er

from

th e

standpoint

of

constitutiona lism.

What is constituent power

from

the perspective of

juridical

theory? It is the source of production of constitutional

norms

that is, the pow er

to ma ke a constitution and therefore to dictate the fun da m en tal norms

that

orga-

nize the powersof the State.In other words, it is the power to establish a new ju-

ridical arrangement, to regulate

juridical

relationships within a new community.

4

"Constituentpoweris an imperativeact ofnatio n, rising from nowhere and organiz-

ing the hierarchy ofpowers."

5

This

is an extremely paradoxical definition: a power

rising from nowhere organizes

law. This

p arado x is unsustainable precisely because

it is so extreme. Indeed, never asclearly as in the caseof constituent power has ju-

ridical theory been caught in the game of affirming and denying, absolutizing and

limiting that

is

characteristic

of its

logic

(as

Marx continually affirms).

Even though constituent power is

all-powerful,

it nonetheless

has to be lim ited temporally, defined, and deployed as an extraordina ry power. The

time of constituent power, a time characterizedby aform idable capacityofacceler-

atio n the time of the event and of the generalization of

s ingulari tyhas

to be

closed, tr eate d, reduced in juridica l categories, and restrain ed in the adm inistrative

routine. Perhaps this imperative

to

transform constituent power into extraordinary

power, to crush it against the event, to shut it in a

factuality

revealed only by the

law,was

never

as

anxiously

felt as

during

the

French Revolution.Constituentpower

as all-embracing power is in fact the revolution itself. "Citizens, the revolution is

determined

by the

principles that began

it. The constitution is

founded

on the sa-

cred rights of property, equality, freedom [liberte]. The revo lution is over,"

pro-

claimed Napoleon with inimitable,

ironic arrogance,

6

because

to

claim that

con-

stituent pow er is over is pure logical nonsense. It is clear, however,thatthat revolution

an d

that constituent power cou ld be m ade legal only in the form of the

Thermidor.


13/378

2 3

The problem of

French

liberalism,

throughout

the

first

half

of the nineteenth cen-

tury,wasthat ofbringing the revolution to a conclusion.

7

But constituent poweris

not only all-po werful; it is also expansive: its unlimited qual ity is not only temp oral ,

but

also spatial. However,

this

latter characteristic will also have

to be reduced

spatially

reduced and regulated. Constituent power must itself be reduced to the

norm of the production of law; it must be incorpo rated into the established power. Its

expansiveness is only shown as an interpretative norm, as a form of control of the

State's constitutionality, as an activityof constitutional revision. Eventually, apale

reproduction of constituent power can be seenatwork in referendu ms , regulatory

activities,

and so on,

operating intermittently withinw ell-defined limits

and

proce-

dures.

8

All

this

from an objective

perspective:

an

extremelystrong

set of juridical

tools covers over and alters the n ature of constituent power, defin ing the concept of

constituent poweras aninsoluble essence.

If we

regard

the

question

from a

subjective perspective,

the

crisis

becomes even more evident. After being objectively perverted, constituent power

becomes,

so to speak, subjectively desicc ated.Firstof a ll the singular characteristics

of

its originary and inalienable nature vanish, and the nexus that historically links

constituent power to the right of resistance (and that defines, in a sense, the active

character

of the

former)

is erased.

9

What

isleft

then undergoes every type

of

distor-

tion. Certainly, once situated within the concept of the nation, constituent power

seems

to

maintain some

of its

originary aspects,

but it is

well known that this

is a

sophism, and that the notion of constituent power is more suffocated than devel-

oped

by the concept ofnation.

10

Not even

this

reduction

suffices,

however, and the beast seems

notyet to betamed.Thusthe actionof the scissorsoflogicisaddedto the ideolog-

ical sophism, and juridical theory celebrates one of its masterpieces. The parad igm

is

split: to originary,commissionaryconstituent power is opposed constituent power

proper, in its assembly form;finally, constituted power is opposed toboth.

11

In this

way, constituent power is absorbed into the mechanism ofrepresentation.

12

The

boundlessness

of

constituent expression

is

limited

in its

genesis because

it is

subjected

to the rules an d relative extension of suffrage; in its functioning because it issub-

jected

to the rulesof assembly;and in the period during which it is in

force

(which

is

considered delimited

in its

fun ctions, assuming more

the form of

classic "dictator-

ship" than referring to the idea and practices ofdemocracy).

13

Finally, and on the

whole,

the

idea

of

constituent power

is

juridically preform ed, whereas

it w as

claimed

that

itwou ld generate the law;it is in fact absorbedin the notion ofpolitical represen -

tation, whereasit wassupposed to legitimize thisnotion.

Thus

constituent power,

C o n s t i t u e n t P o w e r


14/378

as

an

element connected

to

representation (and incapable

of

expressing itself excep t

through representation), becomes part of the great design of the social division of

labor.

14

This

is how the juridical

theory

of constituent power solves the allegedly

vicious circleof the realityof constituent power. But isn't closing constituent power

within representationw he re the la tter is merely a cog in the social machin ery of

the division of labor

nothing

but the negation of the reality of constituent power,

its congealment in a static system, the restoration of traditional sovereignty against

democratic innovation?

15

Thissolutionis too easy.In spiteofeverything, the problem can-

not be ab olishe d, erased, dismissed. It rem ains as a problem , and the interp reters of

the law are left to their Sisyphean labor.How then can weavoid a theoretical path

that elim inates, together with

th e

vicious circle,

th e

very reality

of the

contradiction

between constituent power and juridical arrangement, between the all-powerful and

expansive

effectiveness

of the source and the system of positive law, of constituted

normativity? How can we keepopen the source of the vitality of the system while

controlling it?Constituent power must somehow be maintained in order to avoid

the possibility that its elimination might nullify the very meaning of the

juridical

system and the democratic relation thatmust characterizeitshorizon. Con stituent

power and its effects exist: how and whe re should they operate? How migh t one

unde rstand con stituent power in a juridical apparatus?This is the w hole problem:

to m aintain the irreducibility of the constituent fact, its effects, and thevaluesit ex-

presses.Three solutions have then been proposed. Accordingto some, constituent

pow er is transc end ent with respect to the system of constituted power: its dynam ics

are

imposed on the systemfromoutside. According to anothergroupof jurists, that

power is instead immanent, its presence isimp licit, and it operates as afoundation.

A third group of jurists,

finally,

considers the

source

constituent po we r as nei-

ther transcendent nor immanent but, rather, integrated into, coextensive,and syn-

chronic with th e positive constitutional system. Let's examine these positions one

by

one andem phasize their in tern al articulation.Itseems that ineachcase th etran-

scendence,

immanence,

or

integration

and

coexistence

can be

present

to a

greater

or lesser degree, thus determining singular and diverse juridical and constitutional

effects.

Thisis the case for the firstgroup of authors, those who consider

constituent power as a transcendent source. Here constituent power is assumed to

be a fact that first precedes the constitutional arrangement but then is opposed to

it, in the sense that it remains historically external and can be defined only by con-

stituted power. This is actuallythe traditional position, but it is revised insofar as


15/378

4 5

the contradiction is avoided through a dislocation of planes. Whereas the order of

the constituted power is that of the

Sollen

(what ought to be), the order of constituent

power is that of

Sein

(what is). The

first

belongs to

juridical

theory, the second to

history or sociology.

There

is no intersection between norm and

fact,

validity and

effectiveness, what ought

be and the

ontological horizon.

The

second

is the

foun-

dation of the first but through a causal link that is immediately broken, so that the

constituted

juridical

system

is

absolutely autonomous.

The great school of Germ an public law, in the second

half

of the

nineteenth century and at the beginning of the twentieth, has by and large

identified

itself with this position. According

to

GeorgJellinek, constituent power

is

exogenous

with respectto the constitution an dderivesfrom the empirical-factual sphereasnor-

mativeproduction.

16

Thisnormative productionislimited,or,better, itcontainsits

own

limitation because

the

empirical-factual

is

that historical

and

ethical reality

thata laK an tif the lawallowsi t limits the extensionof the principle outsideof

the law. Con stituent power, if the law and the constitution allow it, wants noth ing

but the regulation and therefore the self-limitation of its own force.

17

In this sense

the transcendenceof the factual with respect to the law can be considereda

differ-

enceofminim al degree.It isinterestingtonoticehowJellinek's school (particu larly

when faced with the effects of the revolutionary council movement inpost-First

World War Germany) doesnot hesitate to reduce the gap that dividesthe source

from the juridical arrange m ent, thus accepting the need to include within this space

revolutionary productions

and

ensuing unforeseen institutional

effects

that certainly

exceed the fundamental norm of the constitution of theReich.

18

This

is wh at Hans Kelsen

refuses.

For him transcendence is ut-

mo st and abso lute. The characteristic of the law is to regulate its own produc tion.

Only

a norm can determine, and does determine, the procedure

through

which an-

other norm isproduced.The norm regulating the production ofanother normand

the norm produced accordingto this prescription (representable

through

thespatial

image of superordination and subordination) have nothing to do with constituent

power.

Norms

follow th e rules of the juridical form, and constituent power has

nothing

to do with the formal process of the production of norms. Constituent

power is

itself,

at the limit,

defined

by the system in its entirety. Its

factual

reality,

om nipotence, and expansivenes s are implied in that point of the system where the

formal

strength

\potenza]

of the law is

itself om nipotent

and

expansive:

the

basic norm

[Grundnorm].

19

And the

fact

that inKelsen'sfinalwritings the entire factual,

jurispru-

dential, and

institutional

life of the law

appears

to be

absorbed

in the

normative

process

doesnot change the situation much. The new dynamicisnever dialectical;



16/378

autonomy.

As far as

constituent power

is

concerned

we

witness

the

paradox

of be-

ing ab le to con sider it as active for its whole c onstitutional

life,

but never cap able of

being a source of definition or principle of movem ent for any aspect of the

system.

20

How can we comment on this scenario? Little or nothing remains of constituent

power through and

after

this operationof the formal foundingof the law,and there-

fore of the ethical (as in Jellinek ) or sociological (as in Kelsen) red uction of its co n-

cept. Again, the point of view of sovereignty imposes itself against that of democ-

racy; the transcen dence of constituent power is its negation .

The result doesnotseem much

different

w hen constituent power

is

considered as im m ane nt to the constitutional and juridical system.

Here

we are

not confronted by the articulation of a set of positions pertain ing to any one school,

but by a

variety

of

positions typical

of

various theoretical tendencies.

In

this case,

th e historical densityof constituent power is not apriori excluded

from

theoretical

investigation; but the w ay in which juridical theory relates to it is no less problem-

atic. Indeed, even though constituent power becomes a real mo tor of constitutional

dynam ism (and ju ridica l theory accepts its presence), at the same time several neu-

tralizing operation sare put into action.These areoperations oftranscendental ab-

straction or temporal concentration, so that, in the

first

case, the inherence of fact

to law may be diluted in, we could say, a providential horizon; or, in the second

case,

it may

solidify

in a

sudden

and

isolated action

of

innovation.

The

minimum

and them aximum degrees ofimm anencearem easured here with respect to the de-

creasedreach of the effects,or to the irrational and immediate intensity of the cause.

If the effectiveness of the constituent principle is given, it is with the aim of re-

straining it andregulatingit. The position ofminimum incidenceof the constituent

principle, as

imm anent principle

of the

jurid ical system,

can be

typically studied

in

John

Rawls'swork.

21

He

considers constituent power

as the

second part

of a

sequence,

followingan

originarystage during which

the

contractual agreement

on the

principles

ofjustice

has

been made,

and

before third

and

fourth stagesthatcenter, respectively,

on law-making mechanism s and hierarchies, and the execution of the law.Constituent

power

is

reabsorbed

into

con stituted

law

through

a

mu ltistaged mechanism that,

by

making constituent power imm anent to thesystem, deprivesit of itscreative origi-

nality. Furth erm ore, political justice or, really, the justice of the constitution (that

produced by constituent power) always represents a case of imperfect procedural

justice. In other word s, in the calculus of probabilities the organization of political

consensus is always relatively inde term inate . To the lim it that con stituent pow er

encounters in the contractual mechanism must be

added

an overdetermined ethico-

at most it is a tracing of the real and in case rthe system never loses its absolute


17/378

6 7

political limit, which is the (Kantian) condition of the

constitution

of the transcen -

dental. Immanence isweak,ofminimal d egree, even though effective.

22

Let'snowconsider some theoretical positionsinwhichthe degree

of immanence is greater. Once againw eneed to shift our attention, after this brief

excursus

into

the Anglo-Saxon world, to the

juridical

theory and also the political

theory of the German Reich.Fe rdinand Lassalle claims that the no rmative v alidity of

the juridical-form al constitution depends on the m ateria l andformal(that is, sociolog-

icaland

juridical)degree

of

adaptation

of the

orders

of

reality that

has

been posed

by

constituent

power.

This

is an

actual formative power.

Its

extraordinariness

is

prefor-

mative, and its

intensity radiates

as an

implicit project

onto the

system

as a

whole.

Keeping in mind the resistance of the real conditions and the reach shown by con-

stituent power, the constitutional process can be imagined and studied as an inter-

mediate determination between two orders of reality.

23

Hermann Heller, another

critic gravitatingin theorbitofthose juridical tendenc ies closeto the workers' move-

ment, brings to completion Lassalle's vision.Herethe processof constituent power

becomes endogenous, internal to constitutional development. Initially, constituent

power

infuses its

dynamism into

the

constitutional system

andthenis

itself reform ed

by theconstitution.

24

We are not farfrom the mom ent when Rudolf Smend cancall

the constitution "the dynam ic principleof the State'sbecoming."

25

How can the ori-

gins of

constituent power

be, at the end of the

analytical process, completely abso rbed

by

the State?How is it

possible that

the

mediation

ofdifferent

orders

of

rea lity ends

with a dynamism centered, or better, made its own,as an intimate essence, by the

State? Once

again,

what

is

going

on

here

is a

neutralization

of

constituent power.

And

although these authors deny it, claiming rather that the evolution of the State also

implies the progressive realization of a set of constituent norms, the determination

that these norms assume

in the

real movem ent becomes totally uncertain.

T he

imma-

nence of constituent power is shown by the S tate to be aformof natural evolution.

Can constitutional historybe anatura l history?T wo

major

twen-

tieth-century scholars answer this question: Max Weber and Carl Schmitt.Withan

acute perception Weber understood that

th e

naturalist criterion

is

insufficient

to

make constituent power immanent to constituted power. Instead, Weber insistently

pushes constituent power

to

confront historicosocial

reality.

26

Throughout

the

core

of

his political sociology w here he

defines

the theory of the types of legitimacy, it is

clear that for Weber constituent power is situated between charismatic and rational

power. Constituent power derives

from the first the

violence

of

innovation,

and from

the second its constitutive instrumentality. It sud den ly form s positive law acco rding

to an innovative

project

that grounds a paradigm of rationality.

C o n s t i t u e n t

P o w e r


18/378

Weber develops this Germ an casuistry with his study of the Russ-

ian revolutions of 1905and1917, which were contemporary to his work.

27

He per-

fectly

grasps the complexity of the relationships betw een irrationality and rationality,

and

between the collective and the individual, that run throughout the constituent

phase.That

said,

his sociologicalformalism does not seem to

lead

to results any more

valid

than juridical

formalism.

Linking charism atic legitimation to rational legitima-

tion

is

not

enough

to

allowWeber

to

articulate

an

original phenomenology

of

con-

stituent power. The at tempt fails because Weber's methodology remains, despite

everyeffort

to the

contrary, founded

on afixed

typology,

a

typology

not so

much

of

the

form

of

production

as of the

figures

of

con sistency

of law and the

State.This

is

a

unique case

of

myopia,

as if in

order

to define

constituent power,

one had to

dis-

cuss

the

projections

of

constituted power,

or

worse,

th e

consequences,

th e

perverse

effects of

constituent power.

Constituent

power,

as

much

as

charismatic power, mus t

be judged as a category of its own.They do not have the same kind of historical

consistency as other types of legitimacy.Theya redefined by changing practices (al-

beit extremely important ones) rather than concrete determinations.Theyareideal

types that pervade

the

entire juridicalarrangement, imm anent

but in the end

esoteric,

strange,

and

extraordinary. Hence Carl Schmitt's position, which claims

to

grasp

th e

concreteness

of

this limit: concretizing

th e

formal means making

it

into

th e

absolute

principleof theconstitution.

28

The

"decision"

that

Carl Schmitt sees

as

marking

the

very possi-

bilityof law,the identificationand conflictof

friend

and enemy, and that he seesas

running

through

thew hole system, shaping it and overdetermining i t this act of

warrepresents themaximumof

factuality,

castasabsolute imm anencein the juridical

system.

29

This immanence is soprofound that at

first

sight the distinction between

constituent and constituted power fades, so that constituent power appears according

to its natu re asoriginarypower or counterpow er, as historically determ ined strength,

as a set ofneeds, desires,and singular

determinations.

30

In

fact,

however, the exis-

tential m atrix throug h w hich constituent pow er is

defined

is stripped away

from

th e

beginn ing, brough t back to the abstract determinations of violence, of pure event as

voluntary occurrence

of

power.

The

absolute tendency

of the

foundation

of

con-

stituent power becomes a cynical claim;after com ing very close to a m ateria ldefin-

ition ofconstituentpower,

Schmitt

gets en trappedin the irrationaloverdetermination

of

the conception of sovereignty, no longer of a pure concept of strength [potenza],

but ofpower

[potere].

We are now

approaching

the

last

of the

positions that

we set to

examine:

the one that considers constituent power asintegr ated, constitutive, coex-


19/378


20/378

here wehave beforeus analready domesticated animaleven worse, one reduced

tomechanical behaviors and to the inert repetition of apreconstitutedsocial base.

Whetherit is

transcendent, immanent,

or

coextensive,

the

relationship that juridical

theory (and

throughit the

constituted arrangement) wants

to

impose

on

constituent

power works in thedirection ofneutralization, mystification,or,really,the attribu-

tion

of

senselessness.

What

if there were no

other way? What

if the very condition

fo r

maintaining

and

developing

the

juridical system were

to

eliminate constituent

power?

Given the impossibility of solving th e problem of constituent power

from

the

point

of

view

of

public law,

we

should examine this problem from

the

perspec-

tive

ofconstitutionalism.

Herethings

areeasier.

From

the

point

ofviewof

constitu-

tionalist

and

liberal ideology, constituent power

is in

fact subjected

to the fire of

critique

and toinstitutional limitation through ananalysis that workstounmask(or

so it

claims)

any

sovereign demand

of the

community. Constitutionalism poses itself

asthe theory andpractice of limited government: limitedby thejurisdictional con-

trol

of administrative acts and, above all, limited through the organization of con-

stituent powerby the law.

38

Evenrevolutions must

bow to the

supremacy

oflaw....

Constituent

power,as the

ultimate

power,

must legitimize itself byfinding expression through

legal procedure;

this originary

historical

fact

is not justified

bymereobedience,

but by the

juridicalmode

in which

it is

expressed,

a

mode

that, with

its

formalization, guarantees

the

people's

constituent

power.

Thusall

of

the constituent

process

is

regulated

bylaw;

and

there exist

neither normativefacts

nor a constituent power

that,

based

on the

form, manages

tocommand obedience;nor is there a

material

constitution realized through thepraxis

of

thepoliticalclass.

This

is

because the

constitution

is not an actof

government,

but the act

of

thepeople.

313

This sophism, this Oedipal consequenceof the parableofMenenius Agrippa itself

eliminates,within thesphereofconstitutionalist thought, thepossibilityofproceed-

ing in thedetermination ofconstituent power. It isjustaswell ,then, to usethis op-

position to recognize in constituentpower (insofarasthis power is the opposite of

th e constitutionalist ideaofchecksandbalances)themarkof aradical expressionof

democratic will.

In

effect,

th e

praxis

o f

constituent power

has

been

th e

door through

which

themultitude's democratic will (and consequently thesocial question)has en-

tered thepoliticalsystem

destroying constitutionalismor in anycase significantly

weakeningit.Constitutionalism defines the socialandpolitical orderas the articu-

lated set of

either

different

social orders

or

different

juridical

and

political powers.


21/378

10 ,1

The constitutionalist paradigm always

refers

to the "mixed constitution," themedi-

ation ofinequality,and thereforeit is anondemocratic paradigm .

In contrast, the paradigm of constituent power is that of a force

that bursts apart, breaks, interrupts, unhinges any preexisting equilibrium and any

possible continuity. Con stituent power is tied to the notion of democracy as absolute

power.Thus, as a violent and expansive

force,

constituent power is a concept con-

nected

to the

social

preconstitution of the

democratic totality.

This

preformative

and imaginary dimension clashes with constitutionalism in a sharp, strong, and lasting

manner.Inthis case, history doesnot dispense withthe contradictions of thepresent;

in fact, this mortal struggle between democracyand constitutionalism, between con-

stituent power

and the

theory

and

praxis

of the

limits

of

democracy, becomes more

and more prominent

th e

further history advances.

40

In the

concept

of

constituent

power

is

thus implicit

th e

idea that

th e

past

no

longer explains

the

present,

and

that

only

the

future will

be

able

to do so. As

Alexis

d e

Tocqueville writes, "The past

has

ceased

to throw its

light upon

th e

future,

and the

mind

of man

wanders

in

obscu-

rity."

41

Paradox ically, this ne gative idea, more than a thousand other motivations,

explains

the birth of"democracy inAmerica."This is whyconstituent pow er pro-

duces and reproduces itself everywhere and continually. Constitutionalism's claim

of regulating constituent power juridically is nonsense not only because it wants to

dividethis pow er but also because it seeks to block its constitutive temporality. Con-

stitutionalism is a jur idi cal doctrine that knows only the past: it is continually r efe r-

ringto time past,to consolidated strengthsand to their inertia,to the tamed spirit.

In contrast, constituent pow er always refersto thefuture.

Constituent

power has

always

a singular relationship to time.

Indeed , constituent power is on the one ha nd an absolute will determining its own

temporality.

In

other words,

it

represents

an

essential m om ent

in the

secularization

of power and politics. Power becomes an immanent dimension of history, an actual

temporal horizon.

The

break with

th e

theological tradition

is complete.

42

But

this

is

not

enough: constituent power,

on the other

hand, also represents

an

extraor-

dinary acceleration of time. History becomes concentrated in apresent that devel-

ops impetuously, and its possibilities condense into a very strong nucleus of imme-

diate production.

From

this perspective constituent power isclosely connected to the

concept of

revolution.

43

And since it isalread y linked to the concept ofdemocracy,

now itpositions itselfas the

motor

orcardinal expression ofdemocratic revolution.

And

we see it taking p art in all the

mechanisms

at times, ex treme ly

v io len ttha t

pulsate

in the

democratic revolution, vibrating between

the one and the

many,

be-

tween power and multitude, in a very fast, often spasmodic

rhythm.

What could



22/378

this rhythm

of

constituent power share with

th e

inert

and

traditional time

of

con-

stitutionalism?

44

It is not the

constitutionalist approach, therefore, that

can

help

us solve the problem of the crisis of the concept of constituent

power.

45

At this

point, however,

we

must

ask

ourselves: given

th e

deep ambiguity that this theory

(both th e

juridical

and political-constitutional

one)

casts on the concept of

con-

stituent power without being ableto resolvei t, wouldn't this concept effectively be

theconcept of acrisis? Sothat, insteadofattempting asolution, wo uldn'tthe attempt

to

better identify

it s

critical characteristics,

its

negative content,

and its

unsolvable

essence

be

more

in

accordance with

th e

truth?Here

we

have probably reached

th e

real object

of our

investigation:

to

examine,

first of

all, what

is the

real nature

of

constituentpower. If this n atu re is in crisis (as our analysis of the attemp ts of jur id i-

calor

constitutionalist reduction

has

indica ted), then

we

should consider

in the

sec-

ond p lace wh atis the site orlimitonwhich this crisis takes shape.

Third,

w eshould

investigate if the limit (that is, the present conditions of the crisis, unsurpassed and

at the

moment unsurpassable)

can

somehow

be

overcome.

In

short,

if in the

history

of democracy and democratic constitutions the dualism between constituent power

an d

constituted power has never produced a synthesis, we must focus precisely on

this negativity,

on

this

lack of

synthesis,

in

order

to try to

understand constituent

power.

Before concentrating on this issue, allow me one final observa-

tion about

th e concept of

representation, which since

th e

beginning

we

have

con-

sidered as one of the fundamental juridical-constitutional instruments forcontrol-

ling and segmenting constituent power. Now, even at the end of this excursus, the

mystifyingfigure of represen tation recurs in the context of the dev elopm ent of con-

stituent

power.

46

Perhaps

the

concept

of

democratic representation

is

intrinsically

related to constitutionalism in such a way that fundamental functions of the latter

persist in the

former.

47

From this perspective the crisisof the concept of constituent

power

will

not reside only in its relationship to constituted power, constitutional-

ism, or any juridical refinement of the notion of sovereignty.

This

crisis will also

concern th e concept ofrepresentation because,a tleastfrom th e theoretical pointof

view,

a primary and essential denatura lizing and disempow ering of constituent power

takes place

on

this

theoretical-practical

node.

Absolute

Procedure,

Constitution, Rev olution

Co nfro nte d by the crisis of the c onc ept of constituent power as a jur idi cal category,

wemust askourselveswhether

insteadoftrying to overcome the crisis,as

juridi-


23/378

1 2 , 3

cal

thought

does

to no

avai lwe

should, rather, accept

it, in

order

to

grasp better

the nature of the concept. To accept this crisis means, firstof all, to

refuse

the no-

tion that the concept of constituent power may somehow be founded by something

else,

taken away, tha t

is,

from

its own

nature

as

foundation.Thisattempt surfaces,

as

we have seen, whenever constituent power is subordinated to representation or

to the principle of sovereignty, but it already starts operating when the omnipo-

tence and expansiveness of constituent power are limited or m ad e subject to consti-

tutionalist aims.Constituentpower, they say and decree,can onlybe definedas ex-

traordinary (intime) and it canonlybe fixed (inspace)by a singular determination:

it isconsidered either as anormativefact that isdeemed

preexistent

or as amaterial

constitution that develops in tan dem w ith it But all this is abs urd: how can a nor-

mative factvalidatedbycustom do justiceto innovation? How can apreconstituted

"political class" be the guarantor of a new

constitution?

48

Already the effort of en-

closing constituent power in acageofspatiotemporal limitation was unsustainable,

but:

any attempt to block it by giving it

finality

becomes downright inconceivable.

One can try to minimizethe impactof the event,but certainlyit is not possible to

define

its innovative singularity in

advance.

49

These logical skirmishes, carried on

to the verge of nonsense, in

fact

constitute the my stification that juri dic al theory

an d practice take care to collect and rearticulate

into

the theories of sovereignty

and

representation.

Constituent

power, limited

and

finalized

in

such

a

way,

is

thus

held back within the hierarchical routines of successive production and representa-

tion,

and

concep tually recon structed not as the system's cause but as its result. The

foundation is inverted, and sovereignty as suprema potestas is reconstructed as the

foundation itself.But it is a foundation contrary to constituent power; it is a sum-

mit, whereas constituent power

is a

basis.

It is an

accom plishedfinality,w hereas con-

stituent power isunfinalized; itimpliesalimited time andspace, whereas constituent

powerimpliesamultidirectional pluralityof times andspaces;it is arigidified formal

constitution, whereas constituent power is absolute process.

Everything,

in sum, sets

constituent power and sovereignty in opposition, even the absolute character that

both categories layclaimto: the absolutenessofsovereigntyis atotalitarian concept,

whereas that of constituent power is the absoluteness of dem ocratic governmen t.

In this way, thus, by insisting on the concept of constituent power

asan

ab solute process

all-powerful and

expansive, unlimited

and unfinalizedwe

canbegin to apprec iate the originality of its structure. B ut we must imm ediately face

an

objection: what else can absoluteness given in this form be but the absoluteness

of an

absence,

an

infinite void

of

possibilities,

or,

really,

the

presence

of

negative

possibilities?

It seemsto me that in this objectionthem isunderstandingofabsence


P o w e r


24/378

is exacerbatedby the misapprehension of the concept ofpossibility.

This

objection

can be refu ted . If the concept of constituent pow er is the concept of an absence,

why

should this absence result

in an

absence

of

possibilities

or the

presence

of

neg-

ative

possibilities? In

fact,

here we are touching a crucial point in the metaphysical

debate, the debate centering on the question of strength \potenza] and its relation to

power

\potere].

The metaphysical alternative in the definition of strength that runs

from

Aristotle to the Renaissance and from Schelling to Nietzsche is precisely an

alternative between absence and power, between desire and possession, between re-

fusal and

domination.

50

Sometimes this alternativeisclosed, as it iswhen power is

considered from itsorigin aspreexisting physicalfact, asfinalized order,or asdialec-

tical resu lt. In other casesth e alternative isopen. Agreat current ofmo dern politi-

cal

thought, from Machiavelli

to

Spinoza

to

Marx,

has

developed around this open

alternative,whichis the ground ofdemocratic

thought.

51

In this tradition, theabsence

of

preconstituted and

finalized principles

is

combined with

th e

subjective strength

of

the multitude, thus constituting the social in the aleatory materiality of a univer-

sal relationship,

in the

possibility

of

freedom.

The constitution of the social is a streng th

founded

on absence

that is, on

desire

and desire unceasingly feeds the movem ent of strength. Hu man

strength produces a continual dislocation of desire and accentuates the absence on

which

th e

innovative event

is

produced.

The

expansiveness

of

strength

and its

pro-

ductivity

are grounded in thevoidoflimitations, in the absenceof positive determi-

nations, in this

fullness

of absence. Constituent power isdefined emerging from the

vortex

of the

void, from

the

abyss

of the

absence

of

determinations,

as a

totally

open need.

Thisis why

constitutive strength never ends

up as

power,

nor

does

th e

multitude tend to become a totality but, rather, a set of singularities, an open multi-

plicity.Constituentpower is this force that, on the absence offinalities, is projec ted

out as an all-powerful and always more expansive tendency. Lack of preconstituted

assumptions and fullness of strength: this is a truly positive concept of freed om . Om-

nipo tence and expansiveness also characterize democracy, since they

define

constituent

power. Democracy

isboth

absolute process

and

absolute government. Thus,

the ef-

fort tokeep open whatjuridical thought wantsto close, to get toknow more deeply

the crisis of its scientific lexicon, does not simply make

available

to us the concept

ofconstituent power but m akes it

available

to us as the m atrix of dem ocratic thought

and praxis. Absence, void, and desire are the motor of the

politicodemocratic

dynamic

as such.

It is a

disutopiathat

is, the

sense

of an

overflowing constitutive activity,

asintense

as aUtopiabut

without

its

illusion,

and fully

material.

52


25/378

1 4 , 5

Hannah

Arendt

well understood this

truth

about constituent

power.

53

She arrives at it by an obliq ue path , by counterposing the Am erican to the

French Revolution,

but it is no

lesseffective

a

path, rather

so

much stronger

for be-

ing paradoxical.The thesis about the two revolutions has a long history. It was

elaborated

byFriedrichvonGentzin hisintroduction to the German translationof

Edmund Burke'sReflections on the

French

Revolution,^ but it was above all popular-

izedby

John

Adams's supporters againstJefferson during the presidential campaign

of 1800.

55

T he

American Revolution

and

Constitution, foun ded

on the

respect

and

development

of

freedom , stands against

the

horrid

Jacobins, against

the

revolution

asan abstract and ideologica l force. Are ndt takes up the sam e notion, shifting how-

ever

its

central axis, which

is no

longer

the

opposition between

the

concrete

and the

abstract

but between political and social revolution. Political revolution transcends

the social without annihilating it but, rather, by producing a higher level of under-

standing, equilibrium,andcooperation,apublic spaceoffreedom. Social revolution,

instead, and the French Revolution in particular,nullifies the political by subordi-

natin g it to the social. The social, in turn,

left

to itself, spins emptily in a search for

freedom

that becomes increasingly blind

and

insane. Whenever

the

political does

not allow society to understand itself, to articulate itself in understa nding ,folly and

terror

will triumph.

Hence

totalitarianism cannot but be established. Later and m ore

than oncewewill haveto gobackto this thesisof the tworevolutions to evaluateit

from diffe rent points of view. For the time bein g let's leave aside the historical ju dg -

ment and consider instead how the principle of freedom takes shape in Arendt's

theory, because it is precisely through this concept, and by

refusing

tradition, that

sh edeeply renews political theory. Certainly, revolution is a beginn ing, but m odern

history begins only when the constituent principle is removed from violence and

war. Only then is the constituent principle freedom: "Crucial, then, to any under-

standing

of

revolutions

in the

modern

age is

that

th e

idea

o f

freedom

and the

expe-

rienceof a newbeginning shouldcoincide."

56

But what does this freedom become? It becomes public space,

constituting a communicative relation, its own conditions of possibility, and there-

fore

its own strength. It is the

polis.

Freedom is a beginning that poses its own con-

ditions. The right of com mu nity pred om inate s over all others, over the right to

life,

over the very specificatio ns of the righ t to property, so that it is both a co nstituent

and

constituted principle. "Independent government

and the

foundation

of a new

body

politic"

this is wh at it means "to b e

free."

Freedom cannot be reduced; nei-

ther does

it

come after liberation:

freedom

means

to "be

alreadyfree";

it is

political



26/378

constitution,

an

absolute process (Arendt, 26ff).

As far as we are

concerned, then,

following

our argument, we want to stress how this new definition of the constituent

principle is grounded on nothing more than its own beginning and takes place through

nothing

but its own

expression.

The

radical quality

of the

constituent principle

is

absolute. It comes from a void and constitutes everything. It is not by chance that,

at

this point, Arendt takes stock and, through avery richandfierce phenomenolog-

ical

exercise, begins demolishing anyheteronomous (and in particular social) con-

tent

of

public space, both

its

constitutive process

and the

constituent actors.

The

problem lies in posing the social as a priori, as preceding the constitutive event, and

in characterizing the socialas apreconstituted political question (53 ff) . This is the

casenot

only

for

historical reasons:

"Nothing...

could

be

more obsolete than

to at-

tempt to liberate mankind frompoverty by political means; nothing could be more

futile and more dangerous" (110). Not only because this is apure andcatastrophic

illusion:

The

masses

of thepoor,thisenormous

majority of

allmen,

whom

the FrenchRevolution

called

lesmalhereux,whomitturned intolesenrages, only todesert themand letthemfall

backinto

the

state of

les

miserables,

as the

nineteenth

century

calledthem,carried

withthemnecessity, towhich

they

had beensubjectas long asmemory reaches,

together

with the

violence

thathad

always been used

to

overcome

necessity. Both together,

necessity and violence,made themappear

irresistible:

la

puissance

de la

terre.

(110)

The reason for this situation is theoretical and deeper. Only the political reconstruc-

tion

of

reality,

the

constitution

of

public space, allows

for the

revolutionaryrebirth

that

is, it

makes

the

search

for

happiness

a

possibility: "The central

ideaof

[the Amer-

ican]

revolution...

is the

foundation

of freedom, that is, the

foundation

of a

body

politic that guarantees the space where freedom can appear" (121).This idea is

therefore an ontological institution, an actual fundamental determination of being.

The

concept

of

constituent power

is the

constituent event,

the

absolute character

of

what

is

presupposed,

a

radical question.

And it is

exactly

on

this point,

the

radical

fun-

damentalityof political being, that Arendt is strongest.

Constituent

power, insofar as

it constitutes the political from nothingness, is an expansive principle: it allows no

room

for either resentment or resistance; it is not selfishbut supremely generous; it

is not need but desire.

Arendt's

denunciation of "the socialquestion"

57

proceeds as

a parallel to an overflowingand expansive

notion

of the ontological institutionality

ofpolitical democracy:in all itsforms,

from

th e Greekpolls to the Renaissance city,

from the American assemblies to the revolutionary workers' councils of 1919 and

1956.

58


27/378

1 6 , 7

Why do these strongly made points, so

powerfully

deployed in

the discussion and definition of constituent power byArendt, leave us in the end

unsatisfied, evenill at

ease?

At thevery mom ent when sh e illuminates thenatureof

constituent power, Arendt renders

it

indifferent

in its

ideality

or

equivocal

in its

historical ex em plification . If one teases her writing a little, each of the characteristics

attributed to constituent power loses its intensity, becomes pale, andrevealseclipsed

bythe brilliance of the ex positio n its opposite.Thus, for instance, the constitutive

pheno menology of the principle reveals itself as perfec tly conservative. The contin-

uous celebration

of the

fact

that

free do m preexists liberation

andthatthe

revolution

is

realized

in the

formation

of

political space becomes

the key to a

historicistherme-

neutics that systematically flattens down, or deforms, the novelty of the event and

limitsit to theAmerican example.

The ambiguityof the beginningand the absolute taking

root

of

constituent power (an ambiguity connected to the Heideggerian definition of being

and the consequent constitutive alternative of freedom)are resolved byArendt in

formal

terms, according to the demands of an idealismcontent to find acorrespon-

dence

in

institutions. Arend t attacks with

fierce

determination

the

categories

o f

pity

and

compassion as devastating functions of the process that produces the ideology

of the "social question." She counterpoises desire to sympathy,truth to theatrics,

themindto theheart, patienceto terror,foundationto liberation.Up to this

point

she upholds

th e

ontological radicality

of the

constituent principle;

but she

does

not

sustain the trajectory that would lead to preserving political space as a terrain of

freedom and ahorizonof

desire, thus denying

it as a

space dedicated

to

mediation

and

the production of power. She does not unmask Rousseau as the theoretician of

sovereignty as much as she scorns him as the theoretician of compassion. Arendt

wants

political emancipation,

and she

considers

it as the

accomplishment

of die

American Revolution:

in fact, she

conceives this passage only

as the

realization

of a

determinate constituent apparatusand exaltsit in its crudeeffectiveness as anideal

paradigm. Rather than being

an

ontological beginning, political emancipation

be-

comes

here

a

hermeneutic legacy.

59

Arendt's

argument

is

even more clearly inadequate

if we

focus

on her

analysis

of the

dynamic

of

constituent power.

The

choice

of

taking

the

Amer-

ican

Revolution as an exemplary model not only blocks the ontological process but

alsocheapens

the

analysis

of the

political apparatus.

For

Arendt

the Constitutio libertatis

is

simply

and

merely

identified

with

the

historical events

of the

American constitution

(139-79).

All the theoretical problems that the definition of constituent power has

raised are

resolved

by

seeking rational alternatives

and a

political decision fou nd ed



28/378

not on

them

but on the basis of the

solutions imposed

on

them

by the

American

constitution.

Arendt

thus gives

us a

series

of

banalities, more appro priate

to a

neop hyte than to a Heid egge rian p hilosopher. For ex amp le, she proposes the n otion

that constituent power is a continual historical process not limited by its immediate

determinations

but

temporally open

to

interpretation

and

improvement;

or

that

the

constitutional absolute divides into and isjustified by the dy namics that generate it,

such that constituent power

and

constituted power

do not

compose

a

vicious circle

but, rather, are progressively leg itim ated in a virtuous circle; or finally that constituent

power may be creative, but at the same time it has the natu re of a pact mad e by mu-

tual consent: "The gram m ar of action: that action is the only human

faculty

that

dem ands a plurality of men ; and the syntax of power: that pow er is the only h um an

attribu te t hat app lies solely to the worldly in-between space by which m en are mutu-

ally

related, combine in the act of foundation by virtue of the making and the keep-

ing of promises" (175).To say this m eansnothingbut goingbackto tha t Anglo-Saxon

sociology that, between

Talcott

Parson

andJohn Rawls,

proposes

a

"positive sum"

political

exchange,

polite

and consensual, and has very little to do

with

Arendt's in-

tuition of the

absolute foundation.

60

In fact,

Arendt opens

byrefusing contractualism

and ends by praising it; she begins by grounding her argum ent in the

force

of con-

stituent power and concludes by forgetting its radical quality; she starts by fore-

grounding

th e

reasons

for

democracy

and

ends

byaffirming

those

of

liberalism.

It willnot app ear strange, then, that even Arendt's definition of

the

expansiveness

of

constituent power

is

marred

by

contradictions

and

difficulties.

Indeed,this is inevitab le: the herm eneu tics of the libe ral constitutional mod el presents

a linear

and not an antago nistic schem a for the de velo pm ent of constituent power. It

is

linear and idyllic if compared to the real problems that the American Revolution

had

to face

since

its

beginning, problems

of

class

struggle,

slavery,

and the

frontier.

It is

linear

and spo ntaneist as in the worst versio ns of sociologicalinstitutionalism.

61

The

antagonistic event disappears.Thus Arendt's philosophy comes close, without

deserving

it, to the

"we ak" versions

of

Heideggerianism, those versions that produce

itsmost extreme

results.

62

Even though sought afterand acknowledged, the founda-

tion is abandoned to the version that the real provides of it.Thisis not realism but,

rather, a historicist cynicism: it eclipsesthe real effort that constituent reflectionhas

developed

in the hope of recognizing the

fullness

of strength in the absolute of the

foundation,

and the

fullness

of

freedom

in the

void

of the

ontological basis.

At this point we can und erstand how H aberm as, although taking

his point of departure

from

a perspec tive that does not possess the strength and does


29/378

1 8 9

notacceptthe riskofArendt's theory (whichiswhat makesit

great),

63

still develops

a

reasonable

and

acceptable critique

o f her

positions. Habermas elaborated

a

theory

that

can be

called "the reversal

of the

thesis

of the two

revolutions."

64

In

other words,

he

claims that both the French and the American Revolutions derive from specific

interpretations of natural

right.

The French Revolution takes natural

right

as an

ideal to

realize, whereas

th e

A merican Revolution takes

it as a

real state tha t politi-

cal interven tion can only disfigu re. The constitutive productivity of the political is

thusall on the sideof the French Revolution:it is the only modern revolution. The

American Revolution is a conservative revolution, whose ideology is premodern and

corporative, thus antimodern and antipolitical.

In fact, th e

revolutions

in

Am erica

and

France were quite differ-

ent. The interpretation of the revolutionary act wasdifferent because whereas in

one

case

it was

necessary

to

impose exnovo

a

conception

of

natural right against

a

despotic power, in the

other

what mattered was to liberate the spontaneous

forces

of self-regulation

in

order

for

them

to

agree with natural right.

The

relation

to the

State, too,

wasdifferent: in

America

the

revolutionaries

had to

resist

a

colonial power,

whereas in

France they

had to

build

a new

order. Finally,

the

political ideology

was

different, liberal

in the first

case

and

democratic

in the

second:

in

Am erica

the

revolu-

tion

had

to set in mo tion the egoism of natu ral interests, whereas in France it neede d

to mobilize mo ral interests. Consequently,it is not true thatin the French Revolu-

tion the social subordinated the politicalrathe r, the social was constituted by the

political,

and herein lies the superiority of the French Revolution. Constitutive is

the opposite ofconservative.Thusthe relationship between societyand State,as it

is

posed in the two natural-right constitutions, isradically

different,

even divergent.

In France and only in France was the constitutive principle

affirmed

and

fully

de-

fined: in the Declaration

of the

Rights of

Man

it imm ediately became an act of

die

constitutional foundation

of a new

society. Should

we

say, then, that there

are two

constitutions? Certainly, but the French constitution was the constitutionof the fu-

ture, running

throughout

the history of the nineteenth century, graftedonto the

history of the working class, and still constituting today the principal basis of the

judicialarrangement

of the welfarestate.

65

What

shouldw e

say?

This

Habermasian reversal leavesa badtaste

in our m ouths because although correct it is ungen erous. Actually, Are ndt has given

us

the clearest image of constituen t power in its radicalness and strength. T he abbot's

frock in

which

she

later dressed

up the

p rinciple does

not

take

awayits

lively figure;

itsimply masksit. The problem isthatwedem and that the constituent principlebe

ontologically grounded: it must be

defined

not by ordered spacebut open time; it


P o w e r


30/378

must

be the

temporal constitution

of the

existent;

it

must

be

crisis.

How and

where

can all this be defined? It is clear that Habermas and his lukewarm philosophy, his

slow transcendentalism prove fully inadequate: but how can we grasp, define, and

portraythe creative richnessof the constitutive principle?How can we do sowith-

out getting

trapped

in the

delicate nets

of the

philosophy

of

communication

or

without

falling

preyto aconservative

syndrome

while remainingon the terrainof

ontology?

Perhap s, in a not

unusual coincidence

of

opposites,

the

only image

that corresponds to

Arendt's

definition of constituent power is the one articulated

by Carl Schmitt.

We

have alrea dy talked about

it, but it is

worth returning

to it, to

clarify

and

explain further.

How

does Arendt interpret Schmitt's work? Certainly,

she does not adopt his reduction of law to the brutality of the originary fact, nor

does

she

consider constituent power

asfully and

coextensively inherent

in the

con-

stituted

order.

66

Ra ther, Arendt's interpretation ofSchmittcan beseenin the percep-

tion

of an

unexhausted expressive radicalness (which

can

simultaneously

be a

sub-

ject) that issues from the constitutive source and that is located in the need for the

decision and in the identificationoffriend andenemy.T he sovereign is the one who

can

"suspend"

th e

law,

67

who can

thus suspend

the law

that itself establishes sover-

eignty,

who can

make constituent power consist

in the

principle

o f its

negation.

In an

entirely Nietzschean manner,

we

need

to

stress that

the

act of suspending, far from being

defined

in negative terms, founds and inheres to

the possibilityof thepositive.The more the

first

decision shows itselfto benegative,

the mo re rad ically it opens a num ber of grounding, innovative, linguistic, and consti-

tutional possibilities.

With

thisthe

constitutive

act

opens positively:

the ursprungliche

Wort

oder

Sprache is set free,

68

and it is onsuch creative depth th at the senseof com-

munity

is

articulated, both

in the

extensiveness

of the Gemeinschaft, so

important

for Arendt,

and in the

barbaric manner that Schmitt proposes

to his

"friends."

69

Here

we are

neither confusing

the tw o

comm unities

nor

rep roachin g Arendt's liber-

alism

forwearingasuit that, albe it vaguely, resemblesthe equivocal senseofSchmitt's

decisional

community. In fact, we aremerely recognizing in the ontological inten-

sity of Arend t's definition of constituent pow er a direction that, while distancing her

from

any

transcendental horizon

of aformal

type

(a la

Habermas), leads

her

toward

an

ontologically pregnant and socially relevant constitutive foundation a Common-

wealthof

friends,

a

counterpower,

a

powerful socialinstance.

70

Thisdistant relationship , which however showsa strong resem-

blance betw een Carl Schmitt and Hannah Arendt, can also beverified indifferent and

more indirect ways.

When

their

thought

on

constituent

power

is

compared

to

that


31/378

2 0 , 1

of

another

author,

perhaps

a

theoretical precursor

and in any

case

a

problematic cata-

lyst of their theories,JohnC aldwell Calhoun, these resemblances becomeevident.

71

InCalhoun's

thought, too, constituent power

is

defined

as a

negative pow er

and

opens

a singular and extremelyradicaldialectic. He developed this problematic within the

parameters

of the constitutional discussion of the Am erican Con fed era ted States

before the Civil War. Calhoun's declarations that the government (as constituent

agent

and

expression

of

com mu nity) ontologically precedes

the

constitution

and

that

the constituent act is

defined

as the capacitytoprescribethechoice betweenwar and

peace,

to impose possible compromises, and thus to organize co nfede rate public law

as

a

truce

are so

intense th at they

can be

linked back,

as

Arendt makes

clear,

72

purely

and

simply to the

right

of resistance and organized in constitutional procedure.

The right of resistance provides us with a basic and

fascinating

reference point. It is

the

negative power

par

excellence, wh ose

prefigurative

force

can

hardly

be

eliminated

from thehistoryof modern constitutionalism.The rightofresistance,

together

with

the negative, emergesas the radically fou ndin g expressionofcommunity. Exactlyat

this

point,

wh ereas Schmitt capitulates to the force of an attraction that is by now

devoid of principles,

Arendt's

thought runs into a sort of insurmountable roadblock

when she discovers that"nothingresem bles virtue so m uch as a great crime":

noth-

ing resembles constituent power so much as the most radical and deep, most des-

perate and

fierce

negation.

73

W hereas Schm itt can play with this negation and Hab erm as can

make

it disappear in the flattest of transcendental horizons, Aren dt instead rema ins

both fascinated and repulsed by it.

Here

probably lie the origins of her (so contradic-

tory )conversion to

classical

andconservative constitutionalism .W e see how shecan-

not stand the deeply radical and verypowerful principle she discovered. Arendt's march

gets bemired. Constitutionalist thoug ht in gene ral and Am erican constitutionalism

in

particular come to her rescue in her attempt to

free

herself

from

the vortex of the

crisis, from the

definition

of

constituent power

as

crisis.

The

procedure

is

well-known:

one volun tarily makes oneself prisoner of the sophism of sovereignty, subjects one-

self

to the traditional routine of its definition, and thus creates a situation in which

only constituted power can

justify

constituent power.

But isn't there any other line of

thought

capable of appreciating

the radicalnessofconstituent power without drow ningit in the philistinismof tra-

ditional juridical theory? In attempting ananswer,westart from aparticular convic-

tion

(which

we will try to confirm historically and construct theoretically throughou t

this work)

that

the

truth

of const

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