Abstract:
The central argument of this paper is that contemporary constitution makers stand in various
informal and formal representative relations to publics, and operate under similar constraints as
those relevant during the regular political process. The goal is not to conflate constitution making
with ordinary legislation or to argue that these two activities are non-distinguishable analytically.
Rather, the central claim is to show that similar political dynamics influence both activities.
Formal electoral mechanisms of authorization and accountability that are central to the
relationship between representatives and constituents are also relevant during constitution
making. However, the relationship between constitutional decision-makers and citizens is not
exclusively one of formal modes of representation. As evidence from the constitution making
process in Poland (1989-1997) shows, feedback mechanisms and referential relationships
between drafters and publics exist even in instances where constitution makers were not
authorized or legitimized formally through elections. Other more informal, discursive, and
symbolic types of relations exist that function similar to formal mechanisms. However, they
cannot fully substitute formal mechanisms because constitution making-as-representation relies
on the constitutive and authorizing function of elections. In other words, for constitutional
representative relations to be stable and legitimate formal authorization and accountability
procedures are necessary.
Nothing out of the Ordinary: Constitution Making as Representative Politics
The question whether democratic constitutional outcomes presuppose democratic origins has
received much attention in both democratic theory and comparative constitutional research. In the
main, this debate is framed by two central and contrasting positions. On the one hand, there are
those for whom constitution making is the principal realization of popular sovereignty and selfdetermination, and as such can only be legitimately undertaken by a free and sovereign people.
Legitimate political order thus originates in the constituent power of the people only.1 On the
other hand, there are those who argue that no such unified collective law-making agent exists
prior to the moment of constitution making but rather that this agency is created through the
process itself. The constituent power always involves the deliberate drawing of political
boundaries by various internal and external actors and is therefore much more complex,
temporally bound and broader than the former view imagines.
These two approaches, which I call here democratic-originalist position and democraticconstructivist position,2 are however insufficient to understand the relation between origins and
outcomes because both miss a central aspect of democratic constitution making, namely, the role
of representation. Democratic-originalists, while reminding us that not all types of constitution
making qualify equally as democratic, do not to suggest concrete ways through which this
popular constituent power is supposed to be realized. Democratic-constructivists, while pointing
out the complex and ambivalent nature of constitutional agency, do not sufficiently consider how
and through what mechanisms exactly this agency is created. If the constituent power does not
exist prior to constitution making, how exactly does it emerge?
In my paper I provide an alternative account by arguing that constitution makers are better
understood as political representatives, and that much of the activity of constitution making is
subject to similar constraints as those relevant during the regular political process. The goal is not
to conflate constitution making with ordinary legislation or to argue that these two activities are
non-distinguishable analytically. Rather the central claim is to show that similar political
dynamics influence both activities. In this sense, formal mechanisms of authorization and
accountability that are central to the relationship between representatives and constituents are
also relevant during processes of constitution making. However, the relationship between
constitutional decision-makers and citizens is not exclusively one of formal modes of
representation. As evidence from the constitution making process in Poland (1989-1997) shows,
1
feedback mechanisms and referential relationships between drafters and publics exist even in
instances where constitution makers were not authorized or legitimized formally through
elections. Other more informal, discursive, and symbolic types of relations exist that function
similar to formal mechanisms. However, they cannot fully substitute formal mechanisms because
constitution making-as-representation relies on the constitutive and authorizing function of
elections. In other words, for constitutional representative relations to be stable and legitimate
formal authorization and accountability procedures are necessary.
In the following discussion, I first present the main features of the democratic-originalist
and the democratic-constructivist position. In a second step, I focus on the specific challenges
posed by democratic constitution making and discuss what differentiates democratic from other
forms of constitution making. Third, I analyze in what ways theories of representation can help to
make sense of constitution making through a discussion of the constitutional transition in Poland.
I thereby discuss several recent theories of representation such as those of Lisa Disch, Nadia
Urbinati and Michael Saward and assess them in light of the challenges posed by constitution
making. In a concluding section, I state a few implications of the research results for democratic
theory and empirical research on constitution making.
1) The Democratic-Originalist Position
The idea of popular constituent power, central to democratic-originalist positions, was first
formulated by Emmanuel Joseph Sieyès and later re-introduced by Carl Schmitt. At its
conceptual core, constituent power is the power to set the foundational laws of a polity, its
constitution. In this sense, constituent power presupposes a distinction between foundational law
that concerns the basic structure of polity and ordinary rules of everyday politics. All ordinary
rules and constituted powers derive their validity from the constitution. Sieyès’s and Schmitt’s
central formulations of the nature and characteristics of the constituent power are well known,
however, three aspects of their theories have received less attention: 1) the distinction between
non-democratic and democratic forms of constitution making, 2) both authors’ presupposition of
a unified constituent agent, and 3) their views on the exercise of constituent power.
Sieyès developed his theory of the constituent power of the nation against the claims to
power by the nobility and clergy in France. Thereby, in Schmitt’s reading, Sieyès did not only
pave the way for a revolutionary political act but also developed a “democratic theory of the
2
constitution making power of the people, which directed itself against the existing absolute
monarchy.”3 This new principle is much more vivid in the French than in the American
Revolution because the French state already existed prior to the revolution. Thus it highlights that
the French people themselves, by rejecting the monarchical form of government and by
exercising their constituent power, consciously determined and freely decided on a new type and
form of their own political existence.4
Whereas Sieyès notion of constituent power had the aim to declare the nation as the new
and sole political sovereign, Schmitt’s constituent sovereign can take many different forms.
Indeed as Schmitt notes, in addition to the people, subjects of constituent power include, in
medieval thought, God; the King; a minority as in the form of aristocracy or oligarchy; or a
minority that possesses a stable organization such as a circle of certain families, or an order, or
another group that is “formed internally.”5 In his Constitutional Theory (1928), Schmitt notes
similarly “[p]rior to the establishment of any norm there is a fundamental political decision by the
bearer of the constituent power. In a democracy, more specifically, this is a decision by the
people; in a genuine monarchy, it is a decision of the monarch.”6
The possibility of multiple constitutional subjects is logically consistent with Schmitt’s
conceptualization of constituent power. In his view, “constituent power is a political will, whose
power and authority is capable of making the concrete, comprehensive decision over the type and
form of its own political existence.”7 A constitution, itself the highest norm, can thus never be the
result of another positive or nonpositive (such as Kelsen’s Grundnorm) norm but can only derive
from the decision and action of a constitution making agent.8 As long as it is “a subject capable
of acting” and a politically unified being, constituent power can be exercised by “the people, a
particular group, or a single individual.”9
Thus, for Schmitt the most important characteristic that qualifies the constituent power as
supreme foundational power is its political unity. This political unity necessary to exercise
constituent power can therefore never be the result of constitution making but must exist prior to
the act. Here, he highlights Sieyès conceptualization of the constituent power as “nation” and not
simply as “the people” to underline this point. The term “nation” denotes “the people as a unity
capable of political action, with the consciousness of its political distinctiveness and with the will
to political existence.”10 In contrast, the people “not existing as a nation is somehow only
something that belongs together ethnically or culturally, but is not necessarily a bonding of men
existing politically.”11 For this reason, as was discussed above, other single or collective agents
3
can also be the subject of constituent power as long as they have a “stable organization” and are
politically unified.
In contrast, in his What is the Third Estate? (1989), Sieyès calls on the Third Estate
exclusively to realize that it, “within itself, contain[s] everything needed to form a complete
nation.”12 It is his aim to deny the “privileged” and “parasitic” first two Estates, the nobility and
clergy, the quality and rights of a nation. The nation can only be found “in the forty thousand
parishes covering the whole territory, in all the inhabitants and all the contributors to the public
establishment.”13 The nation exists as unified political entity with the ability to form a common
will prior to constitution making. These “twenty-five or 26,000,000 souls”14 of the nation are
each individually equipped with “will and intelligence”15 and in their unity already form the
nation. This nation “exists prior to everything; it is the origin of everything,”16 from its will the
constitution and all positive laws emanate.
Despite these similarities, both authors differ decidedly on the question of how exactly
constituent power is exercised in the moment of constitution making. Sieyès and Schmitt share
the notion that the subjects of constituent power are to be found in the state of nature, in which
they are unrestrained and unbound. “A nation never leaves the state of nature,”17 Sieyès argues;
“a nation is independent of all forms and, however it may will, it is enough for its will to be made
known for all positive laws to fall silent in its presence, because it is the source and supreme
master of all positive law.”18 Similarly, Schmitt concept of constituent power operates unbound
by the rules of any preexisting constitution, as it would be “unthinkable that a new constitution,
that is, a new fundamental political decision, succumbs to an antecedent constitution and makes
itself independent of it.”19
However, how the constituent power concretely performs this act remains unclear in
Schmitt’s theory. Even more so, according to him there cannot be “a regulated procedure,
through which the activity of the constitution making power can be bound”20 or one that
“prescribes its exercise.”21 Whereas the King exercises his constituent power “by simply issuing
a constitution out of the plentitude of his power and imposes it through a unilateral act,”22 the
people exercise their constituent power “through some (irgendeinen) recognizable expression”23
of their direct united will. No procedure such as secret voting or elections can be employed to
express the constituent will of the people.24 “The will of the people, to give themselves a
constitution, can only be made evident through the act itself and not through observing of a
4
normatively regulated process.”25 In its most natural form, it is expressed through acclamation,
“the shouting of consent or disapproval by the assembled multitude.”26
With this conceptualization of the exercise of constituent power, Schmitt diverged
fundamentally from Sieyès who regarded a procedural realization of constituent power essential
to the act itself. As we have seen earlier, the nation is composed of all the individual wills of the
inhabitants of French territory “seeking to unite.”27 By this fact alone they have all the rights of a
nation; now it becomes “simply a matter of exercising them.”28 “Since a great nation cannot in
real terms assemble”29 to exercise its constituent power, Sieyès devises a procedure of the
exercise of the constituent power of the nation through extraordinary representatives. This “body
of extraordinary representatives is a surrogate for an assembly” of the nation that acts “as if it was
[the nation] settling the constitution.”30 In this sense they are also independent from all
constitutional forms and “their common will has the same worth as that of the nation itself.”31
It is important to note, however, that the statement that extraordinary representatives are a
“surrogate for an assembly of that nation” appears in a section that addresses the question “who is
to be a supreme judge”32 in a situation in which component parts of the constitution are in
conflict. In such a situation and consistent with his theory of the constituent power, it cannot be
an already constituted power that decides on its constitution but only extraordinary
representatives. In the following sentence, however, Sieyès cautions that they need not to be
“entrusted with the plentitude of the national will.”33 Extraordinary representatives are only
entrusted with “special” and “necessary” powers and “this only in rare cases”34 when
constitutional matters are concerned. Even though the constituent power of the people can only
be exercised and becomes a political force through representation, “in its plentitude” it remains
with the nation in the state of nature.35
Democratic-originalists and theorists of the constituent power have embraced these ideas
of genuinely democratic origins of political order and the possibility of developing a democratic
form of legitimacy provided in the theories of Sieyès and Schmitt.36 However, engagement with
the above mentioned three aspects – the different bearers of constituent power, the preexisting
unified agent, and the exercise of constituent power – so central to Schmitt’s and Sieyès’s
concepts, remains insufficient and partial.
Some works, to be sure, such as Andreas Kalyvas’s Democracy and the Politics of the
Extraordinary (2008), have addressed the critiques of Schmitt’s preexisting constituent power as
a prepolitical, essentialist concept that ties sovereign law-making power to some “prior
5
naturalistic ethnic or racial collective identity.” According to Kalyvas, however, these criticisms
are mistaken because they fail to recognize that Schmitt’s concept of constituent power is
inextricable tied to his friend-enemy distinction “that was formulated in order to point to a
relational and antiessentialist dimension of political identities.” Kalyvas argues that rather than
positing “ethnicity or race as the fixed essence of identity,” Schmitt believed that “political
identities and shared commitments of the ‘we’ are constituted through struggles, antagonisms,
and differential relations among groups.” The constituent power seen in light of the friend-enemy
criterion is “not ... an exhaustive definition or one indicative of substantial content.”37
Yet even if this was the case, a critical problem remains: In the moment of the exercise of
the constituent power, no such conflict, antagonism and deliberative creation of constituent
agency exist or are mentioned. Quite the contrary, in this central moment of democratic founding
and democratic legitimacy, Schmitt’s unbound and unrestrained popular sovereign falls silent.
Instead of struggles we encounter unity, instead of deliberation we find absolute clarity of
purpose. Even if ethnic, religious, social and cultural considerations are irrelevant to the exercise
of the constituent power, its realization still depends on and assumes political unity and
homogeneity of purpose. It is however precisely the idea that political unity of the constituent
power exists per definition that renders Schmitt’s theory and those who follow him uncritically in
this regard ill equipped to understand democratic constitution making. Struggle and conflict over
identity and agency are not just relevant in the ensuing political process but take place in the very
moment of constitution making. Under modern conditions, plural and diverse agents are likely to
disagree on the goals of constitution making and the boundaries of legitimate constitution making
power.
With this unproblematic view of constituent power, it is not surprising that not much time
is spent on the details of its actions. In democratic-originalist accounts, the constitution making
moment seems only to provide the theoretical starting point for a variety of analytical goals.38 For
example, in one account, the goal is to find ways to keep the extraordinary and supposedly
untainted democratic powers of the constituent people alive in the subsequent “ordinary times ...
of politics as usual ... characterized by civic privatism, depoliticization, and passivity.”39 In other
words, even though much emphasis is put on the importance of authentically democratic origins
it remains unclear what exactly constitutes such origins, and how it would be possible to
distinguish them from other, non-democratic forms of founding. As was discussed earlier, there is
nothing intrinsically democratic about the concept of constituent power as such – as long as it is
6
political unified it can be exercised by an individual, a group or “the people.” Through what
mechanisms and procedures then is constituent power exercised, and exercised democratically?
Should it be a long or a short process? Should it involve direct or indirect, deliberative or
representative participation? How is this participation organized and how can it be achieved?
Given the silence on these questions, contemporary considerations of the constituent power seem
to be influenced by Schmitt rather than Sieyès.
2. Democratic-Constructivist Positions
As we have seen above, democratic-originalist positions argue that there exists a logical and
necessary relation between popular democratic origins and constitutional democratic outcomes.
Democratic-constructivists views on this relationship are informed by historical and empirical
observations. The most important of these is that no “democratic state has accomplished
comprehensive constitutional change outside the context of some cataclysmic situation such as
revolution, world war, the withdrawal of empire, civil war, or the threat of imminent breakup.”40
The writing of a new democratic constitution usually takes place in a context of conflict and
crisis and involves a multiplicity of internal and external actors. In one recent account, between
1975 and 2003 nearly 200 new constitutions appeared in countries at risk of internal violence, as
part of peace processes and the adoption of multiparty political systems.41
In light of this record and the historical character of the concept of democratic constituent
power itself,42 democratic-constructivists doubt the assumption that the self that gives itself a
constitution exists as a “pregiven, clearly bounded, and self-sufficient agent” prior to the drafting
of the constitution.”43 One reason for this doubt is temporal. Here, temporality is concerned not
only in the sense of the famous inter-generational argument made by Thomas Jefferson.44 Rather,
it includes a notion of a people as historical community that, particularly in a situation of
constitution making after the experience of oppression, colonialism, foreign occupation or (civil)
war, stands in conflictual and critical relation to its own historical identity.45 This task is made
even more difficult by the fact that representatives of this oppressive past and former
powerholders are in most cases still around, and need to be accommodated and integrated into
new political structures somehow.46
Another aspect that renders assumptions of a preexisting unified constituent agent
questionable is the role constitution making plays in (multinational) nation-building projects.
7
Usually, constitutional politics focuses on the creation and allocation of power to governmental
institutions and the limitation of their authority. However, in cases where multiple territorially
based and politically significant groups advance claims of independence in the name of selfdetermination and popular sovereignty, the basic questions of constitutional politics are rather
different. Here, before anything else, the “existential question of whether a multinational polity
should exist as a unified, national political community at all among the various nations (majority
and minority) who occupy a state, and, if so, on what terms,” needs to be addressed.47 In these
instances, parallel to “normal” constitutional decisions, multinational politics engage in a form of
“constitutive constitutional politics,”48 in which the internal and external boundaries of the
political community are fought over in the process of constitution making.
In light of these considerations, democratic-constructivists allow for a much broader
conception of democratic constitution making power and already provide many important
insights into the question how constitutional agency is constructed.49 Even more so because “as a
matter of theory, constitution making entails a built-in international dimension.”50 In this view the
self “does not emanate exclusively from a nation’s own history and revolutionary project, but is
being reproduced and re-framed in a sequence of communications among a plurality of domestic
and global actors.”51 Historically, constitution making has rarely been a pristine domestic affair,
especially not since the mid-twentieth century. This is suggested by ideas such as “constitutional
borrowing,”52 “diffusion of constitutional ideas”53, “migration of constitutional ideas,”54 and
outright “constitutional imposition.”55 While some authors argue that these developments always
involve normative dilemmas,56 others are less cautious. According to one recent argument, we
should contemplate the advantages of a single charismatic, wise constitution maker or a foreign
constitution maker over the long and complicated process of collective decision making.57
Yet, even though democratic-constructivists argue convincingly that for a variety of
theoretical and historical reasons constitution making agency does not exist prior to the act itself
and is thus inherently constructive,58 it remains unclear through what concrete mechanisms and
political dynamics this agency is created during constitution making. If it is true that no such
well-defined and politically unified agent exists, who participates in this process of construction,
and how does it emerge?
8
3. Contemporary Constitution Making
Democratic-originalist and democratic-constructivist positions have made two central
contributions to our understanding of constitution making: firstly, democratic constitution making
is a specific type of constitutional founding that has to involve the people in some way. Secondly,
constitution making agency is nothing pre-given but constructed. With these two central findings
as a starting point a closer look at the long record of modern constitution making can be helpful.
Constitution making, as we have seen earlier, is often a central part of state- and nation-building
processes. Historically, it has also often been congruent with processes of democratization.
Particularly those states which achieved independent statehood out of past colonial rule and the
transition to democracy in the second and third wave of democratization saw the act of writing
and adopting a new constitution as foundational for their new democratic existence.
Nonetheless, the constitution making processes of third wave transitions differ from
earlier ones due to two specific aspects with regard to constitution making agency. Samuel
Huntington notes in his The Third Wave (1993) that the most common characteristic of regime
change in the last third of the twentieth century is that transitions tend to be negotiated, subject to
compromises and bargains, and at the same time, to be based to a remarkable extent on politically
mobilized masses.59 In stark contrast to previous waves of democratization, the transitions of the
third wave “were made through demonstrations, campaigns, and elections, and through the
nonviolent resolution of differences.”60 In these transitions, the event that causes constitution
making is thus no longer defeat in war or the retreat of a colonial power but rather a situation in
which neither group, old powerholders and new power contenders, can by themselves determine
the future political structure of the new regime.
In the absence of clear victories, constitution writing does not mark the endpoint of a
transition but is the central arena in which the transition itself unfolds. In this sense,
contemporary constitution making “involves many events and several stages,”61 and
constitutionally relevant decisions are frequently made in early phases of the transition and
enable agreements and negotiations further along the transitional road.62 Moreover, third wave
constitution making processes differ from their historical predecessors on several crucial
dimensions that, taken together, form a new type of foundational law making that Andrew Arato
termed “post-sovereign constitution making”. In addition to specific institutional features – such
9
as a multi-stage structure, elite negotiations, courts, and elected constitutional assemblies63 – two
characteristics of this model are particularly important for current purposes.
One is the importance of legal continuity during constitution making, particularly the use
of the amendment rule of the old constitution to accomplish substantial constitutional change
through legal means. Legal continuity here also includes the fact that the old parliament, even if
entirely delegitimized, initially ratifies the legislative and constitutional changes into law.64
According to Janos Kis it is here where the truly revolutionary character of these otherwise
negotiated and seemingly rule-bound transition lies: “All the parties act[ed] as though power was
legitimate, as though its laws and orders were valid, as though the sanction received from the old
Parliament was adaptable to the transformation of the rules bargained by the new system into
enforceable law.”65 In other words, “Communists and anti-communists, moderates and radicals,
those few directly shaping politics, and the many influencing politics through their mass attitudes
all “were good players” who adhered to the rules of an ordinary, if fictitious, political game.66
A second central aspect of the post-sovereign model is to be found in its conception of
constitutional agency and the related “production of democratic legitimacy” during the process of
constitution making. In a situation of a negotiated transition described above, “no one can
legitimately claim to be the people.”67 Therefore, “in terms of political philosophy, the new
paradigm involves a rejection of embodied, unitary, ‘substitutionist’ popular sovereignty in favor
of a pluralistic conception of democratic legitimacy.“68 Drawing on the thought of Claude Lefort,
Arato views the fragile disputed legitimacy of constitution making not as a disadvantage but
rather as an alternative form of democratic legitimacy “that denies any institution, any organ, any
person the right and the power to exercise the plentitude of all state powers.” More precisely,
democratic legitimacy in this view emerges through the constant but necessarily never successful
political struggle of “ever-new claimants and aspirations of absolute power.”69
This model and especially its emphasis on the post-sovereign and institutionalized character
of contemporary constitution making point to another important aspect, namely, the central role
and multiplicity of opposition forces and supporting publics. In democratization processes of the
last 40 years, “far more often than is generally understood, the change agent is broad-based,
nonviolent civic resistance – which employs tactics such as boycotts, mass protests, blockades,
strikes, and civil disobedience to de-legitimize authoritarian rulers and erode their sources of
support, including the loyalty of their armed defenders.”70 This direct involvement of the broader
public as crucial transitional change agent is also increasingly reflected in constitution making
10
through mechanisms such as the election of drafters, the submission of citizen constitutional
proposals or the ratification of the final constitutional text.71
As a result, the conditions of the transition to democracy itself – the negotiated process,
the greater number and more fluid character of societal veto players, institutional and political
uncertainty – make contemporary drafters particularly vulnerable to societal and popular
demands. Elites depend in a robust sense on popular support or at least the ability to make
credible claims to act with the support of citizens in order to strengthen their position at the
negotiation table. Especially during early stages of constitution-making drafters cannot assume
the support of mobilized publics, let alone claim it against each other or to their followers. Yet, in
order to succeed during constitutional negotiations drafters have to ground their claims on
popular and other-regarding arguments. However, once they appeal to “the people” as their
source of legitimation, widely accepted and potentially conflicting democratic norms influence
the argumentative and political strategy of actors. In this sense, as the discussion of the postsovereign model has shown, the legitimacy of constitution makers is neither pre-given nor
belongs to the subsequent process but must be an aspect of and generated in the process itself.
In addition to these transitional conditions, real-world constitution makers also have to
think about concrete ways in which to actually write the constitution. In almost all cases, this is
done by constituent assemblies. The sheer diversity of different forms of assemblies has made
any attempt to classify them difficult and researchers have put forward various distinctions.72
Most basically, assemblies with the sole purpose of writing a constitution (constitutional
conventions) can be distinguished from those assemblies that have combined normal legislative
with constituent functions (constituent assemblies).73 In all of these cases, however, two central
decisions are involved: On the one hand the decision to convene a constitutional assembly and on
the other hand, the decision on an institutional mechanism through which the members of these
constitution making bodies are identified and selected.
In all cases in which old powerholders are neither completely defeated nor excluded from
the process, they will influence and participate in both of these decisions.74 Additionally, in a
democratic context, the institutional mechanism will always include some form of procedural
choice, be it elections of the members of the constitutional convention or be it elections of
parliament, which, in turn, selects the members of the constitution making body. That this
procedural aspect of constitution making raises questions of representation has not gone
unnoticed.
11
For example, democratic theorists such as David Plotke have emphasized the constitutive
qualities of representation.75 Similarly, but from another perspective, Andrew Arato has pointed
out „that the legal identity of the sovereign people, one capable of action only within
representation, is determined by prior electoral and other procedural rules that must be given to
the “people” by elites who thereby constitute them as a people capable of action.“76 The work of
authors such as Vivien Hart or Jennifer Widner,77 furthermore suggests that questions of
representation are not only important during constitution making but seem to be a promising
perspective to understand constitutional mechanisms. To do so more sufficiently, however, an
engagement with the concept of representation in light of the problems posed by constitution
making is required.
4. Constitution Making as Representative Politics
Sieyès identified a fundamental problem still relevant to constitution makers today. Since the
people of “a great nation cannot in real terms assemble” to write a constitution, institutional
forms needed to be devised to realize this task. He thereby pointed toward a problem at the center
of both constitution making and representative politics, that is, how to enable and realize
collective political action. As a political concept, representation has a long and rich history. Most
relevant to our current discussion, is a specific trajectory of the concept from its formalistic
dimension as authorization and accountability between constituents and elected officials to
multiple forms of democratic representation that include mobilizing,78 advocacy79 and claimbased80 forms of representation. These re-interpretative efforts have included an important
“constructivist turn” whose proponents claim that representatives neither simply reflect nor
transmit preexisting, definite demands but create them as they actively recruit constituents.
Similar to the democratic-constructivists discussed earlier, according to these authors “the people
are an effect of democratic representation, not the ground of democratic legitimacy.”81
With the advances provided by these authors regarding the links between citizens and
representatives, the nature of what is being represented, and the mechanisms at play during
representative politics, many aspects of democratic constitution making can be more adequately
captured. Even more so, I argue that constitution makers are better understood as ordinary
political representatives. What I mean by this is that contrary to the view of drafters as either
rational self-interest maximizers or wise and other-regarding law makers, constitutional decision
12
makers stand in various formal and informal representative relations to constituents. In this sense,
much of the activity of constitution making is subject to similar constraints as those relevant
during the regular political process. This perspective addresses the aspects that democraticoriginalists and democratic constructivists have left unanswered: How is constitution making
agency exercised and how is this agency created? It takes up Sieyès’ insight into the requirement
of some form of representative mechanisms to enable constitution making in a modern polity and
reflects how the democratic and transitional contexts of real-world constitution making – popular
mobilization, the negotiated process, fragile legitimacy – influence these mechanisms. As the
following discussion of the constitution making process in Poland shows, conceptualizing
constitution makers as democratic representatives brings into focus the constitutive and
authorizing quality of elections and explains in what sense constitution makers interact with
citizens.
4.1. Representative Constitutional Politics in Poland I: Elected Representation
Poland’s transition to democracy has been a subject of intense scholarly interest in many different
fields, from social movement and civil society literature to regime transition and comparative
institutionalism research. Analyses primarily interested in the constitution making aspect have so
far concentrated on institutional design and choice (parliamentary v. presidential system,
influence of electoral rules on political outcomes), or on the symbolic-cultural debates
surrounding constitution making often with a focus on the conflict around the preamble.82 This
split also has a temporal dimension because the former mainly concentrates on the time period
between 1991-1994 in which organ disputes (Senate v. Sejm, Sejm v. President, President v.
Parliament), and the (unintended) consequences of different electoral rules and constitutional
interim solutions (Small Constitution of 1992) were particularly vivid. The latter in contrast,
mainly concentrates on the time period between 1995-1997 in which heightened societal debate
around symbolic features of the constitution dominated the constitution making process.
What is missing from this rich scholarship is a comprehensive perspective that considers
the full eight years of constitution making from 1989 to 1997 and analyzes the various
constitutional decisions83 together with the overall political process. This multi-stage
perspective84 reveals a crucial aspect of the Polish constitution making process: the multiple
parliamentary election cycles that accompany and interrupt constitution making throughout the
13
process. Together with the semi-free elections of June 1989, Poland saw three parliamentary, two
presidential and two local elections between 1989 and 1997.
Since constitution writing was undertaken by a constituent assembly, that is, because the
constitution writing body was a subcommission formed by parliament and not a separate body,
electoral volatility and change had immediate consequences for constitution making. Every time
a new parliament was elected, a new constitutional commission had to be formed. Representation
in the Constitutional Commission was strictly proportional. Hence its composition was an exact
mirror of the parties represented in parliament. Additionally, as the Polish Parliament is
bicameral, the Constitutional Commission was not only composed of Sejm but also Senate
members, which, given the conflictual historical origins of the second chamber,85 led to another
level of potential conflict. Constitution making and ordinary representative politics, therefore, did
not only take place in parallel to each other; the key point is that ordinary politics was
constitutive of constitutional politics. In other words, constitution makers legitimately held this
role only in virtue of being elected representatives. This interlinked relation was particularly
evident in the period between 1991 and 1997, where legislative conflicts frequently spurred
constitutional debate and constitutional discussions became a platform to sharpen party profiles.86
The Polish constitution making process thus raises the question in what relation drafters-asrepresentatives stand to publics and how, if at all, this relation differs from those of ordinary
representatives. In regular representative politics, representation is traditionally understood as a
dyadic relation between representative and constituent based on the idea of authorization and
accountability. A representative is someone who has been authorized to act by the represented; a
right that she did not have before the act. In turn, the representative is accountable for her actions
to the represented. Elections are a crucial criterion because on the one hand they grant authority
to the elected officials and on the other hand they realize accountability because the
representative will be subject to either removal or reelection in the next elections. However, in
her classical treatment of representation, Hanna Pitkin already notes that formal modes of
representation cannot “tell us anything about what goes on during representation, how a
representative ought to act or what he is expected to do, how to tell whether he has represented
well or badly.”87 More recent critics have gone farther in doubting the very basis on which formal
representation rests, namely the assumption of pre-existing and already formed preferences.
Lisa Disch for example has recently put forward a mobilization concept of political
representation. In Pitkin’s classical formulation Disch finds elements of a concept of
14
representation in which “the process of representation participates in forming demands and social
cleavages”88 and does “note merely reflect” them.89 Her conception is based on findings of
empirical research on political preference formation, which shows that voters not only form
opinions and hold preferences but that the reasoning process through which they are formed
depends on communications put forward by political elites. Here, elites educate (and sometimes
manipulate) constituents as they recruit them to positions that work to elites’ own advantage in an
interparty struggle for power. As theorists such as Iris Marion Young, Pierre Rosanvallon and
Nadia Urbinati have argued, representation is a constitutive process in which a constituency is
enabled to recognize itself in terms of a “generality” – a common enemy, a shared problem,
shared virtue – that is neither given nor self-evident but must be narrated into being.90
In the context of Polish constitution making, this mobilization conception provides a unique
perspective on a critical period in the constitution making process between 1993 and 1997. This
period appears in research mainly in the context of the 1996/1997-preamble debate on whether or
not the Polish constitution should make an explicit reference to God and the Polish nation in its
opening paragraphs. Scholars have put forward different analyses of this debate.91 What is rarely
mentioned in these accounts is the larger context of representative-politics-as-constitutionmaking. In the 1993 parliamentary elections, all those parties that would later mobilize against
the draft – 35 percent of the vote – found themselves excluded from parliament because of the
unintended consequences of a new electoral law, and the failure of these parties to form electoral
coalitions. This gave former communist parties (SLD and PSL) a disproportionally large share of
representation and (initially) an absolute majority in Parliament. From its very beginning in 1993,
thus, the work of the newly inaugurated Constitutional Commission was accompanied with
accusations of its unrepresentative character and exclusion of important other societal points of
view. Accounts that argue that constitutional arguments of these parties in 1996/1997 were an
instrument to improve electoral prospects for example do not explain why, if it was manipulative,
these groups were able to successfully mobilize constituents and legitimately claim that they were
more authentically and truthfully representing the Polish nation than the parties in parliament.
Disch’s mobilization perspective, however, points toward an explanation that does not just
assert a potential manipulation but asks for the underlying processes that enabled such
supposedly instrumental use. Already at the end of 1993, Marian Krzaklewski, then leader of the
Solidarność trade union, initiated a separate Citizens’ Constitutional Project Solidarność
(Obywatelski Projekt Konstytucji Solidarności) to which he invited legal scholars and trade union
15
members to draft an alternative “Citizens’ Constitution.” The mobilization around this draft and
public pressure by the extra-parliamentary opposition led to an April 1994 Constitutional
Amendment which allowed the re-submission of the drafts of the Constitutional Commission
from 1991-1993, and the submission of popular drafts if at least 500 000 signatures were
collected.92 The Solidarność draft collected almost two million signatures and was thus among
the drafts submitted to the Constitutional Commission in May 1994.93
With the initiation of this constitutional project, therefore, elites succeeded in creating a
new constitutional constituent subject with specific political and constitutional preferences that
was allegedly neglected by the official Constitutional Commission. A specific narrative of anticommunist struggle, Catholic faith, and the revolution of 1980/81 was constructed to unify and
constitute a specific constituency that was not represented in parliament but in extraparliamentary, social constitutional forums. Without consideration of this early constituentbuilding and -mobilization phase the later mobilization of 1996/1997, be it for educative or
manipulate reasons, cannot be fully explained.94
Whereas Lisa Disch offers a perspective to grasp the creation of representative linkages
between representatives-as-constitution-makers and constitutional constituents, Nadia Urbinati
proposed the idea of representation as advocacy that illuminates some important aspects of
democratic constitution making. In Urbinati’s view it is “not people’s identity as such that seeks
for representation, but their ideas and claims as citizens who suffer, or are liable to suffer,
injustice because of their identity.”95 Therefore, in elections, we do not seek to simply get “a
copy of ourselves” but the best representatives who share and are sympathetic to our causes and
convictions. In other words, voters “do not seek existential identification with their
representatives; they seek an identity of ideals and projects.”96 Urbinati’s concept, especially
important for this context, also takes power relations into account since minority groups and
positions particularly need an advocate in order to effectively represent their cause and goals in
parliament.
This idea of representation as advocacy provides insights into another important aspect in
the Polish constitution making process. Several social movements and civil society groups such
as environmental groups, women’s rights groups and LGBT activists tried at different points in
the process to influence the constitutional agenda with their own proposals of constitutional
clauses or proposals to re-formulate specific constitutional provisions. Their relation to the
Constitutional Commission varied strongly, from concrete party representation (environmental
16
factions of existing parties such as the Ecological Fraction of the Democratic Union (UD) and
later the Ecological Forum of the Freedom Union (UW)) and parliamentary platforms
(Parliamentary Women’s Group – Parlamentarna Grupa Kobiet) to informal linkages and extraparliamentary lobbying (LGBT groups). At the time of constitution making in Poland, all these
groups were minority or marginalized groups lobbying for political minority issues and in most
cases were not represented in parliament and thus also not in the Constitutional Commission. In
all cases in which they succeeded in putting their topics on the constitutional agenda they did so
because they had advocates inside the Constitutional Commission who represented their goals.
The strongest case of such an advocacy model of representation-as-constitution-making can be
found in the debate on environmental constitutional provisions.
The environmental movement in Poland is an “old” social movement in the sense that it
formed with the 1980/81 Solidarność strikes and was one of the main social forces involved in
the reactivated struggle against the communist regime in the late 1980s.97 In the June 1989
elections, many of its leaders were voted into parliament as part of Solidarność’s Citizen
Committee.98 Aside from unsuccessful attempts to enter parliament by some newly formed green
parties, the most successful strategy was to form environmental platforms within existing parties.
The most effective and institutionalized of these was the above-mentioned Ecological Forum
(Forum Ekologiczne, FE). In the 1993-1997 Constitutional Commission, Ecological Forum
parliamentarians and senators drafted environmental constitutional provisions such as the right to
information on the environment and a sustainability clause. Initially, they attempted to put their
demands on the agenda of the Constitutional Commission through a signature collection
campaign called “Ekologja w Konstytucji” (Ecology in the Constitution).
However, they failed to collect the necessary 500,000 signatures for the submission of
citizens’ proposals. Nonetheless, they managed to attract the attention of the Constitutional
Commission members through informal lobbying and ultimately succeeded in including their
provisions. In an interview with the author of this paper, Radosław Gawlik, former Deputy
Minister of Environment and leader of the Ecological Forum involved in these efforts, stated that
members of the Forum drafted these provisions in close cooperation with NGOs and social
movement actors such as the Institute of Sustainable Development. In doing so, they understood
themselves as representing the interests of the ecological social movement during the constitution
making process.
An engagement with recent theories of representation thus provides insights into how
17
constitution makers-as-representatives interact with citizens. At the same time it highlights that
representation often takes place outside of formal, elected forums of interaction. The efforts of
the Solidarność trade union and conservative parties such as Center Alliance to present an
alternative constitutional draft between 1993 and 1997 took place primarily outside of parliament.
No election or vote authorized these parties to represent Polish citizens. With the exception of
environmental groups, advocates of specific minority or marginalized groups such as women’s
rights groups or LGBT groups were also not elected to support their demands in the
Constitutional Commission. In the absence of formal authorization through elections, constitution
makers-as-advocates and sympathetic to the causes of minority or marginalized groups
established linkages with these groups informally.
Therefore, the Polish constitution making process shows that constitutional representation
cannot be fully captured by the idea of representation as an institutional fact but rather takes place
as a process, as a set of practices and claims to be representative or to represent. In the Polish
process, different actors frequently made claims to be “more representative” or have “greater
legitimacy” to represent constituents in constitution making and, in turn, have questioned the
“representativeness” of their political competitors. Representation, in the same way as legitimacy,
is in this sense not a quality or a standard that exists independently of the context in which it
arises. As Jane Mansbridge put it, democratic legitimacy is a “spectrum and not a dichotomy.”99
Whether or not something is representative or legitimate depends on the perception of those who
are addressed by specific claims to representation, namely the audience (constituents).
Even though Disch and Urbinati’s approaches emphasize the creative and constitutive
aspects of representation, they cannot account for these informal claims of representation that
take place outside of electoral politics. The consequences of these forms of nonelected
representation for theories and practices of representation have been explored100 but – as I show
in the next section – it is particularly the perspective of constitution makers-as-representatives
that brings the challenges involved into sharp focus.
4.2. Representative Constitutional Politics in Poland II: Elections as Founding
As we have seen, the Polish constitution making process is marked by a co-existence and cotemporality of elected and nonelected forms of representation. A look at the period before 1991,
that is the time before the first fully free and fully competitive parliamentary elections, shows
18
another dimension of constitutive representative relations. Famously, the Polish transition to
democracy was decided upon at a Round Table, a negotiation body composed of representatives
of the communist regime and Solidarność opposition members. None of the members of that
body had any formal democratic legitimacy in the sense that none of them were elected to either
act or speak on behalf of society. Already at this Round Table, in April 1989, however,
constitutional amendments to the then still valid 1952 Constitution were agreed on that included
important institutional decisions (such as the creation of a second chamber of Parliament, and the
office of the President), decided on the dissolution of the existing communist Sejm as well as the
rules for new parliamentary elections on June 4, 1989.
In this election, a complex election rule gave 35 percent of the Sejm seats and all 100
Senate seats free for open contestation. To the surprise of both Solidarność and the old regime all
available Sejm seats and 99 of the 100 Senate seats were won by Solidarność candidates.101 This
“contract” parliament was responsible for legislation and constitution making until the first
entirely free elections in September 1991. Its birthmark of only partially democratic legitimacy,
however, bedeviled the constitution making process from the start. As Wiktor Osiatyński shows
in his work on the Polish constitution making process, both chambers of Parliament established
their own Constitutional Commissions on December 7, 1989. From this moment on and
intensified with the fragmentation of Solidarity’s Parliamentary Club of the Citizens Committee
in 1990 and 1991 and internal conflicts of the post-Solidarność political camp, these two
Constitutional Commissions stood in conflict and competition with each other. In this conflict,
the members of the Constitutional Committee of the Senate – until then the only fully formally
democratically legitimated government body – frequently claimed to enjoy greater democratic
legitimacy than the only partially freely elected Sejm Commission. This claim to more truthfully
represent the Polish nation was used to strengthen the claim that the legitimacy of the
constitutional draft of the Senate was equal if not greater than the Sejm’s draft.102
In these situations of a complete or partial absence of elected representatives, representation
of society at large could only be claimed. Michael Saward’s recently developed idea of
representation as a dynamic process of claim-making and claim-reception is helpful in this
context. He argues that representation is “an ongoing process of making and receiving, accepting
and rejecting claims – in, between, and outside electoral cycles.”103 According to Saward, the
view of representation as a multi-actor, dynamic process of claim-making is a much more
accurate account of reality because “would-be constituencies, even relatively homogenous ones,
19
contain a huge variety of apparent and potential interests, many of which cut across each other in
complex ways, and will divide as much as unite.”104 Therefore, “would-be representatives, of
whatever type, must of necessity pick and choose, propose and fabricate, a distinctive and limited
vision of, or set of interests, for the constituency.” They do so by making claims about
themselves and about their would-be constituencies, and “use these claims in order to try to
impose, or encourage a belief in, a particular set of “interests” as an unavoidable precondition of
speaking for those interests.”105
The round table negotiators of Solidarność without any doubt successfully claimed to
represent Polish society in its entirety. This claims was supported by large segments of society,
which the subsequent election campaign for the semi-free June 4, 1989 parliamentary elections
impressively showed.106 Nonetheless this claim to complete societal representation was of course
fabricated since even at its height in 1980/81, Solidarność was a differentiated social movement
composed of a variety of groups, with different traditions, strategies and goals. Recent historical
scholarship has illustrated the diversity of protest and struggle against communism which became
particularly salient in the last years before the transition. In this period, a younger generation of
regime opponents engaged in more radical protest forms in explicit separation from the “old”
1980/81 Solidarność generation.107 At the time of the round table, Lech Wałęsa and the
leadership group around him faced strong criticism of these groups and struggled to fulfill their
end of the bargain with the communists, namely, political reforms in exchange for social peace
and an end of strikes.108 That Walesa ultimately was successful with his specific claim to
representation was thus not a guaranteed outcome but the result of a dynamic process that is wellcaptured with Saward’s theory.
All three authors discussed so far tried to respond to the challenge first formulated by
Hannah Pitkin, namely, that even though formal modes of representation – authorization and
accountability – can tell us what is going on at the beginning and end of representation, they do
not tell us what is going on during representation. In Urbinati’s words “elections make
representation but do not ‘make’ representatives.”109 However, what remains unaddressed in
these approaches is a question that comes into focus through the perspective of constitution
making as representation: it is unclear in what relation these multiple forms of representation –
mobilization, advocacy, claim-making – stand with formal representations’ authorizing
dimension. Can these different forms of representation substitute formal representations’
authorizing of representative relations, or are they additional forms to capture what goes on after
20
a representative relation between elected and voters has been established? Is there a hierarchy
among these forms? Saward’s broad definition of representation as claim-making seems to
include nonelected forms but it is not clear whether or not these nonelected forms of
representation can stand on their own and the examples he provides are not conclusive.
The reason for this is that much of the theorizing on representation takes place consciously
or unconsciously with an already existing and well-bounded nation-state in mind. If
representation exists already, the question of what happens during representation is of course
relevant. However, the situation is different in moments of transition. Here, the founding aspect
of elections, i.e., that elections themselves and not only the activity of representation are
constitutive, is of utmost importance. It is not a coincidence that comparative research on regime
transition refers to these first elections after the breakdown of the old regime as “founding
elections.” A focus on the transition moment is reminder that before representatives create and
struggle with constituents over constituents and their preferences, they themselves need to be
selected, identified and authorized to do so. In these circumstances Urbinati’s statement needs to
be revised: elections may not tell us what representatives do but they sure make representatives.
Similarly, it is true that a representative claim has to be made before it can be established as fact
through institutional election. However, in cases of constitution making, only those claims that
have been authorized through elections – that is only those claim-makers who have been formally
elected into parliament – will ultimately be able to legitimately write constitutions.
Constitution making takes place in precisely those contexts in which the very form and
existence of a polity is unclear. Here, drafters stand in various informal and formal, transitional
and legislative representative relations to constituents. This variety of representative relations,
important as it might be however, cannot substitute the authority and legitimacy conveyed by
formal representation. Especially in cases in which constitutions are written by a body that is
formed by a prior elected parliament, the very first election that creates this parliament is a
founding and constitutive election essential to the task of writing a constitution. Analyzing
constitution making as a form of informal and formal representative politics allows us to capture
a crucial challenge that historic constitution makers did not have to face.
Historically, more often than not, constitutions have been simply issued or proclaimed by
executives to mainly passive populations who did not have a say in the process. Surely, kings and
monarchs as well as revolutionary groups and leaders have claimed to legitimately assume power
21
and to write a constitution “on behalf” of the people of a nation or a political community. In
contrast to today’s drafters, however, they did so without having to devise actual institutions and
mechanisms to exercise fundamental law-making powers democratically, and under conditions of
fundamental conflict over the question who has legitimate law-making power. Under these
conditions, the crucial question is how the principle of democratic autonomy or collective selfgovernment – that is, the fundamental democratic idea that all those affected by collective
decisions should have an opportunity to influence the outcome110 – can be realized through actual
political practices and institutions of collective decision making. The dynamics and institutions of
informal and formal modes of political representation, this paper argues, provide a powerful
analytical framework to approach this question.
The goal of this framework, however, is not to conflate the activity of constitution making
with the regular legislative process but to point out that important structural aspects of
constitution making resemble the ordinary political process of interest representation,
constituency formation and mobilization, and electoral competition. In other words, the political
dynamics of both processes are similar. For this reason, I argue that representative theories can
illuminate and explain central aspects of constitution making such as the question how
constitutional agency is created and exercised democratically. In turn, the challenges of
constitution making, namely the focus on legitimate and collective origins of political order and
the problems of political boundaries, raise questions on the relationship between different forms
of informal and discursive representation and formally authorized representative relations.111
Constitutions are enacted and written basic laws from which all other ordinary laws derive
their force and validity. They provide the exclusive rules of recognition for all other exercises of
“legal-system authority”, be it judge-made and common law.112 This paper argues that in order to
achieve this extraordinary goal, namely a constitution from which all other laws derive their force
and legitimacy, under conditions of contemporary transitions – that is negotiations, fragile and
conflictual legitimacy, democratization – drafters engage in similar political practices as do
ordinary political representatives. To put it differently, the goals and institutional forums of
constitution making are often extraordinary but the practices required to reach these goals and to
participate successfully within these institutional forums depend on the mechanisms of the
ordinary political process.
22
5. Conclusion
The proposal to regard constitution makers as ordinary representatives provides an alternative to
common views of drafters as either rational, strategic interest-maximizers or wise and otherregarding lawmakers. Additionally, it moves beyond the perspective of constitution making as
exclusive intra-elite affair because it tries to understand what role publics play in the process.
Existing attempts to do so, however, have prescribed citizens specific and institutionally
circumscribed locations such as ratification or have called for more forms of direct “public
participation” in the drafting process. Underlying these efforts is a call for “better” and “more
direct” forms of representation of citizens’ claims familiar from debates in representative politics.
As the engagement with newer theories of representation in this paper has shown, however,
publics often influence the process through multiple and different mechanisms and channels.
These are not given enough analytical attention by democratic-originalists positions and are not
fully captured by participatory constitution making approaches. Because most of democratic
constitution making is constituted through founding elections and constitution makers are so by
virtue of being authorized by prior elections, they stand in various representative relations to
citizens. Therefore, the task is not simply to apply theories of representation to constitution
making but to critically assess each one in light of the other. Doing so shows the analytical
strength of theories of representation to make sense of a broad range of representativeconstituency relations that enable collective political action. Yet it also suggests that they are
skewed toward understanding what goes on during representation rather than at the beginning of
representation. A perspective of constitution making-as-representation reveals that informal but
nonetheless meaningful and politically effective representative relations exist even during these
in-between moments, “between a no-longer and a not-yet.”113 These constitutional moments, as
this paper suggests, resemble nothing extra-ordinary or some “lost” and truly authentic political
practice but display many mechanisms and logics involved in ordinary, everyday representative
politics. This may come as a disappointment to all those who hoped to defer the difficult task of
foundational self-legislation to an extra-ordinary power, a wise lawgiver or a well-designed
institutional formula. Democratic constitutional outcomes, before anything else, seem to depend
on the quality and effectiveness of the mechanisms and dynamics of ordinary politics.
23
I thank Andrew Arato and Winfried Thaa for their comments.
This notion is similar to what Andrew Arato calls “populist democratic constitution making,”
see his: “Redeeming the Still Redeemable: Post Sovereign Constitution Making,” International
Journal of Politics, Culture, and Society 22 (2009): 437-438.
2
Please note that the terms “democratic-originalist” and “democratic-constructivist” are purely
descriptive notions that I employ to identify a shared commitment of some authors to the popular
origins of constitutional democracy as well as to the constructed nature of constituent power by
others. None of the authors discussed in this paper categorize their work in these terms so that the
validity of me doing needs to be judged by the reader.
3
Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press
Books, 2008), 140.
4
Ibid., 127–128.
5
For example, according to Schmitt, „[t]he Prussian constitution of 1850 contained a decision by
the king (as the subject of constitution-making power) for a constitutional monarchy ...,“ ibid.,
77.
6
Ibid. In accordance with the two historically relevant subjects of constituent power – prince and
people – he distinguishes between dynastic and democratic forms of constitutional legitimacy
(Schmitt, Constitutional Theory, 136).
7
Schmitt, Constitutional Theory, 125.
8
For a discussion of Hans Kelsen’s nonpositive Grundnorm in relation to the constituent power
see: Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl
Schmitt, Hannah Arendt (Cambridge; New York: Cambridge University Press, 2008), 104–105.
9
Kalyvas, Democracy and the Politics of the Extraordinary, 106.
10
Schmitt, Constitutional Theory, 127–128.
11
Ibid.
12
Emmanuel Joseph Sieyes, “What Is the Third Estate?,” in Political Writings: Including the
Debate Between Sieyes and Tom Paine in 1791, ed. Michael Sonenscher (Indianapolis: Hackett
Pub. Co., 2003), 96.
13
Ibid., 140.
14
Ibid., 112.
15
Emmanuel Joseph Sieyès, “Views of the Executive Means Available to the Representatives of
France in 1789,” in Political Writings, 112.
16
Sieyes, “What Is the Third Estate?,” 136.
17
Ibid., 138.
18
Ibid.
19
This section is better captured in Kalyvas’ translation than in that of Seitzer: Kalyvas,
Democracy and the Politics of the Extraordinary, 118.
20
Schmitt, Constitutional Theory, 130. Note that in the German original the title of this chapter is
“Betätigung der verfassungsgebenden Gewalt,” a much more active notion than Seitzer’s
translation as “initiation”: Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1993),
82.
21
Schmitt, Constitutional Theory, 131.
22
Ibid., 130.
23
Ibid.
24
Ibid., 131: “it would be fallacy – an undemocratic fallacy – to mistake these 19th century
methods for such an expression” (my translation based on German original, SW).
25
Ibid.
1
24
26
Ibid. (my translation based on German original).
Sieyes, “What Is the Third Estate?,” 134.
28
Ibid.
29
Ibid., 139.
30
Ibid.
31
Ibid.
32
Ibid., 138.
33
Ibid., 139 (italics in original text).
34
Ibid.
35
Lisa Disch for example sees in Sieyès concept a “radical constructivism” because the will of
the collectivity cannot exist except through an organ that gives it form, Lisa Disch, “The People
as ‘Presupposition’ of Representative Democracy - An Essay on the Political Theory of Pierre
Rosanvallon,” Redescriptions 12 (2008): 51. See also: Nadia Urbinati, Representative
Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2006), 153–154;
Renato Cristi, “Carl Schmitt on Sovereignty and Constituent Power,” in Law as Politics, ed.
David Dyzenhaus (Durham; London: Duke University Press, 1998), 192. See also a recent
interpretation of the role of extraordinary representatives in Sieyès: Jeffrey A. Lenowitz, “Why
Ratification? Constituent Power & the Unexamined Procedure,” in Le Pouvoir Constitutant De
L’Europe, ed. Olivier Cayla and Pasquale Pasquino (Paris: Dalloz Press, 2011), 17–19.
36
Not surprisingly, a wide variety of thinkers and theory traditions have based their different
normative and theoretic answers to problems such as the relationship between law and politics,
democracy and constitutionalism, legitimacy and legality on Sieyès’ and Schmitt’s insights and
have searched for the implications in and challenges of the revolutionary-emancipatory potential
in these authors’ works. For summary of these see: Martin Loughlin and Neil Walker, The
Paradox of Constitutionalism: Constituent Power and Constitutional Form (New York; Oxford:
Oxford University Press, 2006), 1–9.
37
Kalyvas, Democracy and the Politics of the Extraordinary, 121–122.
38
See for example works in the US tradition of “popular constitutionalism“: Richard D. Parker,
Here, the People Rule (Cambridge, Mass.: Harvard University Press, 1994); Larry D. Kramer,
The People Themselves (New York: Oxford University Press, 2004).
39
Kalyvas, Democracy and the Politics of the Extraordinary, p. 121-122.
40
Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto:
University of Toronto Press, 1993), 106.
41
Jennifer Widner, “Constitution Writing and Conflict Resolution,” The Round Table 94, no. 381
(2005): 503.
42
Chaihark Hahm and Sung H. Kim, “To Make ‘We the People’: Constitutional Founding in
Postwar Japan and South Korea,” International Journal of Constitutional Law 8, no. 4 (2010):
800–848.
43
Ibid., 806.
44
In Jefferson’s view every new generation should have the right to write its own constitution as
it would otherwise amount to the “dead hand of the past” ruling the living. For a discussion see:
Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Constitutionalism and
Democracy, ed. Jon Elster and Rune Slagstad (Cambridge; New York: Cambridge University
Press, 1988), 202–205.
45
For a similar argument see also Henk Botha, “Instituting Public Freedom or Extinguishing
Constituent Power? Reflections on South Africa's Constitution-Making Experiment,” South
African Journal on Human Rights 26 (2010): 66–84; Julian Go, “A Globalizing
27
25
Constitutionalism? Views From the Postcolony, 1945-2000,” International Sociology 18, no. 1
(March 1, 2003): 71–95; Saïd A Arjomand, “Constitutional Development and Political
Reconstruction From Nation-Building to New Constitutionalism,” in Constitutionalism and
Political Reconstruction, ed. Saïd A Arjomand, Constitutionalism and Political Reconstruction,
(Leiden / Boston: Brill, 2007), 3–46.
46
Sanford Levinson, “Transitions,” The Yale Law Journal 108, no. 8 (1999): 2215–2236; Ruti G
Teitel, Transitional Justice, (Oxford University Press, USA, 2000).
47
Sujit Choudhry, “Old Imperial Dilemmas and the New Nation-Building: Constitutive
Constitutional Politics in Multinational Polities,” Conn. L. Rev. 37 (2004): 937–938.
48
Ibid., 938.
49
I thank reviewers of this paper for pointing this out.
50
Hahm and Kim, “To Make ‘We the People’,” 810; see also Jean L. Cohen, “The Role of
International Law in Post-Conflict Constitution-Making: Toward a Just Post Bellum for ‘Interim
Occupations’,” New York Law School Law Review 51, no. 3 (2006): 497–534.
51
Ibid.
52
Lee Epstein and Jack Knight, “Constitutional Borrowing and Nonborrowing,” International
Journal of Constitutional Law 1, no. 2 (2003): 196–223; Yasuo Hasebe, “Constitutional
Borrowing and Political Theory,” International Journal of Constitutional Law 1, no. 2 (2003):
224–243; Dennis Davis, “Constitutional Borrowing: the South African Experience,”
International Journal of Constitutional Law 1, no. 2 (2003): 181–195; Wiktor Osiatyński,
“Paradoxes of Constitutional Borrowing,” International Journal of Constitutional Law 1, no. 3
(2003): 244–268; Mark Tushnet, “The Possibilities of Comparative Constitutional Law,” The
Yale Law Journal 108, no. 6 (1999): 1225–1309; Nelson Tebbe and Robert L Tsai,
“Constitutional Borrowing” 108, no. 3 (2010): 459–522; Michel Rosenfeld and Andras Sajo, eds.,
The Oxford Handbook of Comparative Constitutional Law (New York: Oxford University Press,
2012).
53
Heinz Klug, Constituting Democracy: Law, Globalism and South Africa's Political
Reconstruction (Cambridge; New York: University Press, 2000); Zachary Elkins, “Constitutional
Networks,” in Networked Politics: Agency, Power and Governance, ed. Miles Kahler (Ithaca,
New York: Cornell University Press, 2009), 43–63.
54
Sujit Choudhry, The Migration of Constitutional Ideas, (Cambridge; New York: Cambridge
University Press, 2006); Frederick Schauer, “On the Migration of Constitutional Ideas,”
Connecticut Law Review 37, no. 4 (2004): 907–932.
55
Noah Feldman, “Imposed Constitutionalism,” Connecticut Law Review 37, no. 4 (2004): 857–
890; Ulrich Klaus Preuß, “Perspectives on Post-Conflict Constitutionalism: Reflections on
Regime Change Through External Constitutionalization,” New York Law School Law Review 51,
no. 3 (2006): 467–497; J Alexander Thier, “The Making of a Constitution in Afghanistan,” New
York Law School Law Review 51, no. 3 (2006): 557–580; Zachary Elkins, Tom Ginsburg, and
James Melton, “Baghdad, Tokyo, Kabul ...: Constitution Making in Occupied States,” William &
Mary Law Review 49 (2007): 1139–1177; Andrew Arato, Constitution Making Under
Occupation: the Politics of Imposed Revolution in Iraq, (New York: Columbia University Press,
2009).
56
Ibid.; Osiatyński, “Paradoxes of Constitutional Borrowing”; Choudhry, “Old Imperial
Dilemmas and the New Nation-Building.”
57
Adriaan Lanni and Adrian Vermeule, “Constitutional Design in the Ancient World,” Stanford
Law Review (forthcoming).
26
58
Sheldon Wolin, The Presence of the Past: Essays on the State and the Constitution (Baltimore:
John Hopkins University Press, 1990) 9: “A constitution not only constitutes a structure of power
and authority, it constitutes a people in a certain way. It proposes a distinctive identity and
envisions a form of politicalness for individuals in their new collective capacity”; Michel
Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and
Community, (London et al.: Routledge, 2010).
59
Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century
(Norman: University of Oklahoma Press, 1991), 46.
60
Ibid., 165.
61
Andrew Arato, “Post-Sovereign Constitution-Making in Hungary: After Success, Partial
Failure, and Now What?,” South African Journal of Human Rights 26 (2010): 23.
62
This was the case for example in South Africa, where agreement on the final constitutional
document was prepared, and some argue made possible in the first place by an interim
constitution, that itself was the result of negotiations and agreements by a multi-party roundtable
that involved 26 parties and organizations.
63
For a summary of the specific aspects see: Andrew Arato and Ertug Tombuş, “Learning From
Success, Learning From Failure South Africa, Hungary, Turkey and Egypt,” Philosophy & Social
Criticism 39 (2013): 427–441; Andrew Arato, “Multi-Track Constitutionalism Beyond Carl
Schmitt,” Constellations 18, no. 3 (2011): 324–351; Arato, “Post-Sovereign Constitution-Making
in Hungary: After Success, Partial Failure, and Now What?;” Arato, “Redeeming the Still
Redeemable: Post Sovereign Constitution Making.”
64
Arato, “Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, and
Now What?;” Arato and Tombuş, “Learning From Success, Learning From Failure South Africa,
Hungary, Turkey and Egypt.”
65
Janos Kis, “Between Reform and Revolution: Three Hypotheses About the Nature of Regime
Change,” Constellations 1 (1995): 417.
66
Ibid., 419.
67
Arato and Tombuş, “Learning From Success, Learning From Failure South Africa, Hungary,
Turkey and Egypt”, 2.
68
Ibid.
69
Arato, “Multi-Track Constitutionalism Beyond Carl Schmitt,” 339-340.
70
Adrian Karatnycky and Peter Ackerman, “How Freedom Is Won: From Civic Resistance to
Durable Democracy,” Freedom House (2005): 4.
71
Devra C. Moehler, Distrusting Democrats: Outcomes of Participatory Constitution Making
(Ann Arbor: The University of Michigan Press, 2008); Susanna D. Wing, Constructing
Democracy in Transitioning Societies of Africa (New York: Palgrave MacMillan, 2008); Vivien
Hart, “Constitution Making and the Right to Take Part in a Public Affair,” in Framing the State
in Times of Transition: Case Studies in Constitution Making, ed. Laurel E Miller (Washington,
D.C.: U.S. Institute of Peace Press, 2010), 20–56; Vivien Hart, Democratic Constitution Making,
(United States Institute of Peace, 2003); Tom Ginsburg, Zachary Elkins, and Justin Blount, “Does
the Process of Constitution-Making Matter?,” Annual Review of Law and Social Sciences 5
(2009): 201–223; Zachary Elkins, Tom Ginsburg, and Justin Blount, “The Citizen as Founder:
Public Participation in Constitutional Approval” 81, no. 2 (2008): 361–382.
72
Andrew Arato, Civil Society, Constitution and Legitimacy (Lanham: Rowman & Littlefield
Publishers, 2000), 232–236; Widner, “Constitution Writing and Conflict Resolution”; Jon Elster,
“Legislatures as Constituent Assemblies,” in The Least Examined Branch: The Role of
27
Legislatures in the Constitutional State, ed. Richard W. Bauman and Tsvi Kahana (Oxford, New
York: Oxford University Press, 2006), 181–197.
73
Elster, “Legislatures as Constituent Assemblies,” 182–183.
74
Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal
no. 45 (1995): 375.
75
David Plotke, “Representation Is Democracy,” Constellations 4, no. 1 (1997): 31-32.
According to Plotke, representation is a crucial constituting practice because on the one hand, “it
helps to constitute democratic institutions” such as “procedures for taking decisions, and
[devising mechanisms to sustain] those decisions over time.” On the other hand, because
“[r]epresentation is constructive, producing knowledge, the capacity to share insights, and the
ability to reach difficult agreements.” See also Denis Galligan, “The People, the Constitution and
the Idea of Representation,” in The Social and Political Foundations of Constitutions, ed. Mila
Versteeg and Denis J. Galligan (Oxford, New York: Oxford University Press, 2013).
76
Arato, “Redeeming the Still Redeemable: Post Sovereign Constitution Making,” 437-438.
77
Vivien Hart, “Constitution Making and the Right to Take Part in a Public Affair,” 20–56; Yash
Ghai, “A Journey Around Constitutions: Reflections on Contemporary Constitutions,” South
African Law Journal 122 (2005): 804–831. Widner, “Constitution Writing and Conflict
Resolution.” Note that Widner discusses theories of representation such as that of Hanna Pitkin:
509-510.
78
Lisa Disch, “Toward a Mobilization Conception of Democratic Representation,” American
Political Science Review 105, no. 1 (2011): 100–114.
79
Nadia Urbinati, “Representation as Advocacy: A Study of Democratic Deliberation,” Political
Theory 28, no. 6 (2000): 758–786.
80
Michael Saward, The Representative Claim (Oxford, New York: Oxford University Press,
2010).
81
Disch, “The People as ‘Presupposition’ of Representative Democracy - An Essay on the
Political Theory of Pierre Rosanvallon,” 48.
82
See: Barbara Geddes, “Initiation of New Democratic Institutions in Eastern Europe and Latin
America,” in Institutional Design in New Democracies: Eastern Europe and Latin America, ed.
Arend Lijphart and Carlos H. Waisman (Boulder: Westview Press, 1996), 15–41; Olga
Shvetsova, “Endogenous Selection of Institutions and Their Exogenous Effects,” Constitutional
Political Economy 14 (2003): 191–212. On the symbolic-cultural aspects: Geneviève Zubrzycki,
“‘We, the Polish Nation’: Ethnic and Civic Visions of Nationhood in Post-Communist
Constitutional Debates,” Theory and Society 30, no. 5 (2001): 629–668; Robert Brier, The
Constitutional Politics of Culture: Symbols, Interests, and Constitution-Drafting in Poland’s
Third Republic, 2006.
83
These include for example the April and December 1989 constitutional amendments; the
constitutional drafts of Constitutional Commissions of the Sejm and Senate of December 7, 1989;
the September 1990 constitutional amendment; the debate on a Bill of Rights of 1991; the April
23, 1992 Constitutional Law on the Procedure for Preparing and Enacting of the Constitution,
the October 1992 Small Constitution, the second Constitutional Commission of October 1992;
the third Constitutional Commission of November 1993.
84
An idea developed primarily by Andrew Arato, for example see his: Andrew Arato,
“Redeeming the Still Redeemable: Post Sovereign Constitution Making.”
85
The decision to add a second parliamentary chamber was part of the constitutional decisions of
the round table agreement of April 1989. Due to the consequences of electoral law that regulated
the June 1989 election, the Senate was almost entirely composed of Solidarity members, whereas
28
Solidarity members in the Sejm had to cooperate with Communists. See Ryszard Chruściak and
Wiktor Osiatyński, Tworzenie Konstytucji W Polsce W Latach 1989-1997 (Warszawa: Instytut
Spraw Publicznych, 2001), 66ff.
86
Wiktor Osiatyński, “Poland’s Constitutional Ordeal,” East European Constitutional Review 3,
no. 2 (1994); Wiktor Osiatyński, “Constitution-Making in Poland,” Law & Policy 13, no. 2
(1991): 125–134; Chruściak and Osiatyński, Tworzenie Konstytucji w Polsce w Latach 19891997.
87
Hanna Fenichel Pitkin, The Concept of Representation (Berkeley: University of California
Press, 1967), 58.
88
Disch, “Toward a Mobilization Conception of Democratic Representation,” 107.
89
On the endogeneity of political interests to political processes see also Clarissa Rile Hayward,
“Making Interest: On Representation and Democratic Legitimacy,” in Political Representation,
ed. Ian Shapiro, Susan C Stokes, and Alexander S Kirshner, (Cambridge, New York: Cambridge
University Press, 2009), 111–135.
90
See discussion in Disch, “Toward a Mobilization Conception of Democratic Representation,”
107–108.
91
In one dominant interpretation, Christian-conservative parties, the Solidarność trade union and
its political arm, Solidarity Electoral Action (Akcja Wyborcza Solidarność) as well as the
Catholic Church and former President Lech Wałesa criticized the draft of the National Assembly
in order to improve their electoral prospects in the 1997 election, and to obstruct the
constitutional project of the governing coalition of post-communist and liberal parties. See for
example Aleks Szczerbiak, „The Polish-Rigth's (Last?) Best Hope: The Rise and Fall of
Solidarity Election Action,“ Journal of Communist Studies and Transition Politics 3, no. 2,
(2004): 55-79. In another interpretation, the preamble debate is one episode in a larger cultural,
historical and symbolic conflict in Poland between nationalistic-religious forces and liberalhumanist and liberal-catholic tradition (Zubrzycki, “We, the Polish Nation”).
92
Piotr Gliński, Polscy Zieloni: Ruch Spoleczny w Okresie Przemian (Warszawa: Wydawnictwo
IFiS PAN, 1996), 199-231.
93
Interview with Marian Krzaklewski on December 11, 2012.
94
Brier, The Constitutional Politics of Culture.
95
Urbinati, “Representation as Advocacy,” 776 (emphasis in original); see also Suzanne Dovi,
The Good Representative (Malden, MA; Oxford: Wiley-Blackwell, 2012).
96
Urbinati, “Representation as Advocacy,” 777.
97
Barbara Hicks, Environmental Politics in Poland: A Social Movement Between Regime and
Opposition (New York: Columbia University Press, 1996); Gliński, Polscy Zieloni: Ruch
Spoleczny w Okresie Przemian.
98
Interview with Radoław Gawlik on October 22, 2012.
99
Jane Mansbrige, “Rethinking Representation,” American Political Science Review, 97, no. 4
(2003), 515-528.
100
John S. Dryzek and Simon Niemeyer, “Discursive Representation,” American Political
Science Review 102, no. 4 (2008): 481–493; Saward, The Representative Claim; Dovi, The Good
Representative.
101
Radzisława, Gortat, “The Feud Within Solidarity's Offspring” The Journal of Communist
Studies 9, no. 4 (1993): 116–124.
102
Chruściak and Osiatyński, Tworzenie Konstytucji w Polsce w Latach 1989-1997.
103
Saward, The Representative Claim, 36.
104
Ibid., 44.
29
105
Ibid.
See for example: Voytek Zubek, “The Threshold of Poland’s Transition: 1989 Electoral
Campaign as the Last Act of a United Solidarity,” Studies in Comparative Communism 24, no. 4
(1991): 355–376.
107
Tom Junes, “Student Opposition Politics in Poland and South Africa: Youth Rebellion as a
Factor in the Demise of Communism and Apartheid,” Studia Historyczne 55, no. 3 (2012): 365–
382; Padraic Kenney, A Carnival of Revolution: Central Europe 1989, Edition Unstated
(Princeton University Press, 2003).
108
David Ost.“The Transformation of Solidarity and the Future of Central Europe,” Telos 79
(1989): 69–94.
109
Urbinati, Representative Democracy, 224.
110
Nadia Urbinati and Mark E. Warren, “The Concept of Representation in Contemporary
Democratic Theory,” Annual Review of Political Science 11, no. 1 (2008): 395.
111
I thank the reviewers for their helpful comments on this point.
112
Frank I Michelman, “What Do Constitutions Do That Statutes Don't (Legally Speaking),” in
The Least Examined Branch: the Role of Legislatures in the Constituent State, ed. Richard W
Bauman and Tsvi Kahana (Cambridge University Press, 2006), 273–293.
113
Hannah Arendt, On Revolution (New York: Penguin Books, 1990), 205.
106
30