3 - The People as Popular Manifestation

Summary

Popular constituent power, once a concept closely associated with radical critiques of liberal constitutionalism on the left and the right, and with the investigations of such “Continental” topics as political theology, insurgent partisanship, and the sovereign state of exception, has recently become a key concern of Anglo-American democratic and constitutional theorists. As the concept has moved to the center of scholarly debates, it has also become more respectable, the subject of increasingly elaborate attempts to bring it within the fold of liberal constitutionalism itself: popular constituent power has become an important test of liberal constitutionalism’s democratic capaciousness. This has had significant consequences for how its central concept – the constituent people – has been theorized. “As an actor,” Andrew Arato writes, “the people are fictional unless they are redefined in legal terms as the collectivity of citizens or the electorate in which case they become an entity produced by law, rather than the ultimate source of law.” Viewing the people first and foremost as a legal entity rather than exploring their “fictional” status as “an actor” has been a hallmark of much of the recent scholarship on the popular constituent power.