country—and this in spite of the fact that the constitution itself stipulated unanimous consent among provinces for any major or structural amendment in the future.
Now, let us reconsider the issues of “who,” “how” and “what” in light of this example. What was put into motion by the Canadian Constitution Act of 1982? How was it put into motion? And by whom? Basically, the act endorsed a constitutional democratic system with a strong emphasis on individual rights and the political equality of the provinces. As such, there was no plausible evidence against the generic or abstract presumption that it was meant to carry on—to use Zurn’s wording—“the project of constitutional democracy in a dynamic, self-correcting, and thus progressive manner.” And yet, this did not suffice to make it legitimate or worthy of consent for many citizens of Québec. They perceived it as a specific interpretation of the constitutional democratic project, one that is deeply individualistic and pan-Canadian in spirit, and hence unresponsive to Québec’s claims for cultural recognition.46 Québec already had a problem with the proposed content of the Constitution Act, but the way it was brought to pass (i.e., the dimension of “how”) added conspicuous insult to possible injury. Instead of seeking a resolution that was acceptable to all parties, the federal government decided to move without Québec’s support—a decision that brought about deep resentment in the province and fueled separatist feelings.47 Excluded from the table, many citizens of Québec were not in a position to view themselves among the possible owners of the constitutional project and become attached to it as their own constitution. As a result, the constitution was not only grafted onto a fragmented “who,” but the way in which it was grafted led to deeper fragmentation.
* * *
This chapter opened with a simple observation about two characteristic features of the modern constitution: that it is the product of a deliberate founding act, and that it claims to rest on “the people.” While the former refers us to the “origins” of the political association, the latter brings to our attention its “foundations.” My contention is that, from the standpoint of democratic theory, these two motifs can no longer remain isolated from each other. The normative foundations of the democratic constitution must be performatively manifest in its origins. In other words, the people themselves must be included in the making of the constitution which claims to speak for them.
In the view presented here, this is important for two main reasons. The first one is a normative reason regarding the legitimacy of a new constitution. Under contemporary conditions, hypothetical arguments bypassing the actual voices of citizens inevitably lead to a democratic deficit. As our notions of what it means for “the people” to speak have undergone a significant transformation toward a pluralist and deliberative direction, the “who” and the “how” of a constitutional founding have increasingly become important markers of democratic legitimacy. The second reason might be called experiential in that it emphasizes how the experience of constitutional founding shapes our relation to the constitution, its meaning to us as citizens, and, by extension, the very meaning of citizenship itself. On this register, “origin” is a matter of concern because the way a constitution gets off the ground affects its capacity to become an object of identification, to take root in political culture, and to stand in a productive relation to the people as they keep changing. A constitution can open itself up to the future as a living project to the extent that it belongs to “us” in this experiential sense.
Thus far, then, our argument has spotted the idea of democratic founding and made a preliminary case as to why it matters. However, we have not yet said anything about how the people could actually get to underwrite their constitution. For example, are we to think of democratic constitution-making along the model of a full, actual, communicated consensus among literally all citizens? And if the answer is no, for practical limitations that should be obvious enough, then how are we supposed to make sense of it? This is a question to which we will keep returning throughout the following chapters, and the answer will emerge step by step. But there is also the related and logically prior question of whether a genuinely democratic act of constitution-making—in the sense of an inclusive and participatory exercise of popular sovereignty—is conceptually possible in the first place. Here, the worry is that the very idea of democratic founding is packed with a colossal paradox. I take up this paradox and its implications in the next chapter.
Chapter 2
The Paradox of Democratic Founding
Canonical Statements and Contemporary Perspectives
It is today a commonplace that a constitution is not simply a mechanism for restraining the power of government and securing the rights of citizens. From a democratic point of view, a constitution is at the same time an instrument or better yet a medium of self-determination. It is meant to set up the enabling conditions by means of which citizens would come to form and express something like a common will, consider themselves as the joint author of the laws, and steer the course of their political destiny. However, this enabling function of the constitution brings home to us a taxing problem, one which is peculiar to democratic theory: how can the citizens, in their collective capacity as “the people,” underwrite their constitution, namely the law of making laws, if the conditions of democratic will-formation, necessary to carry out such an act, are to be established by the constitution itself? It seems that the idea of constitutional founding by the people presupposes what it sets out to accomplish in the first place, thereby sending us into a dizzying circularity. This is the paradox of democratic founding in a nutshell. The present chapter aims to explore it in detail.
Depending on how one conceives the fundamental conditions of democratic will-formation, the paradox of founding can be stated in two different ways: substantively (as a matter of ethos) and procedurally (as a matter of institutional forms). While the former version goes back to Rousseau’s The Social Contract, the latter finds its expression in the classical texts of the American and French Revolutions, most notably in The Federalist No. 40 by James Madison and “What Is the Third Estate?” by Emmanuel Sieyès. In what follows, as a first step in the analysis of the paradox of democratic founding, I begin with these canonical statements.
We will then consider two contrasting interpretations. For some, the paradox under consideration is after all a trivial issue. It arises from a category mistake regarding the meaning of the term “people,” and more specifically from a misguided application of the principle of popular sovereignty. Hegel defended such a view, and its versions are held today by some prominent theorists of constitutional democracy. Others, by contrast, see the paradox of founding as a fundamental aporia, an insurmountable impasse, one that impugns all democratic politics and tangles it up in ever self-repeating vicious circles. In order to examine this latter view, we will engage with a diverse group of theorists, including Jacques Derrida, William Connolly, Bonnie Honig, and Frank Michelman.
For reasons that will become clear, I take issue with both these positions. While the former dismisses the paradox of founding without seriously taking into account its implications for democratic theory, the latter turns the problem into a “chicken-and-egg” kind of puzzle and hence forecloses its negotiation. In contrast to both approaches, the present chapter concludes with an alternative proposal. We would be well-advised to take the paradox of democratic founding neither as a category mistake nor as an insurmountable impasse, but as a heuristic problem, one which leads us into the gray area where the conditions of democratic peoplehood are in the making.
Ethos and Procedure: Two Canonical Versions of the Paradox
In Book II, Chapter 7 of The Social Contract—namely, the famous section on the lawgiver—Rousseau articulates the paradox of founding: “For a nascent people to be capable of appreciating sound maxims of politics and of following the fundamental rules of reason of state, the effect would have to become the cause, the social spirit which is to be the work of the institution would have to preside
