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FOUNDING ACTS
FOUNDING ACTS
Constitutional Origins in a Democratic Age
Serdar Tekin
UNIVERSITY OF PENNSYLVANIA PRESS
PHILADELPHIA
Copyright © 2016 University of Pennsylvania Press
All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.
Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4112
Printed in the United States of America on acid-free paper
1 3 5 7 9 10 8 6 4 2
Library of Congress Cataloging-in-Publication Data
ISBN 978-0-8122-4828-9
Contents
Introduction. The Problem of Democratic Founding
Chapter 1. Origins and Foundations: Two Features of the Modern Constitution
Chapter 2. The Paradox of Democratic Founding: Canonical Statements and Contemporary Perspectives
Chapter 3. The People and the Lawgiver: Rousseau on the Possibility of Democratic Founding
Chapter 4. Building a Homeland: Founding and Identity in Hannah Arendt’s Jewish Writings
Chapter 5. Revolution and Constitution: The Legitimacy of Beginning in Question
Chapter 6. Law and Democracy in Founding Moments: Deliberative Constitution-Making
Conclusion. “The Act by Which a People Is a People”
FOUNDING ACTS
Introduction
The Problem of Democratic Founding
… it would be well to examine the act by which a people is a people.
— Jean-Jacques Rousseau
Remember the night of February 11, 2011. More than a million demonstrators had been occupying the Tahrir Square in downtown Cairo for eighteen long days when Hosni Mubarak, Egypt’s longstanding president/dictator, finally gave in and stepped down. As the whole world was watching with intrigue, the Egyptian people enacted a revolution at a time and place that was perhaps least expected. The popular protest had begun a couple of weeks before Mubarak’s resignation, first in Tunisia, then in Egypt, spreading like wildfire and catching everyone by surprise. Those who spontaneously populated the Tahrir Square were ordinary men and women from all walks of life. They were nonviolent but full of indignation, fed up with decades of dictatorship, with police brutality and emergency laws, with poverty, unemployment, electoral fraud, and political corruption. The protesters voiced two clear demands from the outset: immediate resignation of the president/dictator and establishment of a democratic regime.
Although it took less than three weeks to end Mubarak’s thirty-year reign, the transition to democracy proved to be much harder. Perhaps this was not surprising in and of itself, but things went especially wrong in the process of constitution-making. Partisan imposition prevailed over collective deliberation, leading to new waves of strikes and protests, which eventually triggered a military coup. A politics of restoration is currently underway, and no one quite knows what it will take to set the country back on the track of democratization or how long this process will take. In the current situation and with the benefit of hindsight, it is not a moot speculation to say that things could have been drastically different if the constitution-making process had unfolded the right way. However, it did not, and the revolution was not succeeded by what Hannah Arendt called constitutio libertatis, the foundation of political freedom, or at least by a constitutional beginning which carries the promise thereof.1
Questions abound. How does democracy get off the ground? How can the revolutionary “event” transform itself into a constitutional “form” without degenerating into dictatorship or into the turmoil of permanent revolution? What does it mean to begin the experiment of self-government in the right way? Is it possible, for instance, to begin democratically where there was no democracy before? What sort of constitution-making process would promote widespread legitimacy at moments of foundation? Such questions bring home to us the central problem addressed in this book: the problem of democratic founding.
The Importance of Founding Moments
This book is about the importance of founding moments for the project of constitutional democracy. Its basic thesis is quite simple: how constitutions are made (or their pedigree) is morally and politically as significant as what they are made of (or their content).2 In making this claim, I take my point of departure from a twofold observation. On the one hand, all democratic constitutions feature “the people” as their author and ultimate source of legitimacy. The principle of popular sovereignty has been indispensable to the normative self-understanding of constitutional democratic regimes since the American and French Revolutions. There is no constitutional democracy without popular sovereignty, and we do not recognize a source of authority superior to the people. On the other hand, however, we live in a world characterized by an ever growing awareness of difference and plurality—a world where the notion of a sovereign people acting on one will and speaking in one voice is inevitably met with suspicion. According to its critics, more specifically, the idea of a unified people is implicated in a hegemonic vision of political community, a vision which is almost always imposed on a diverse population through less than salutary means.3
Such imposition was unmistakably at work in the Egyptian process of constitution-making. The Muslim Brotherhood took the majority vote as the single and authoritative voice of the people, thereby adopting a winner-take-all
