a conceptual problem, and the call for “extraordinary representatives” would only highlight its persistence. How can the people—abstracted from all positive forms whatsoever, including by definition the electoral laws and regulations as well—elect these extraordinary representatives, that is, the members of the constituent assembly, and give them a coherent mandate?14 It seems that beyond and above all established procedures, the people are not only incapable of exercising constituent power on their own, but they cannot even delegate or entrust it to a constituent assembly, except on pain of circularity.
In 1788 (just a year before the publication of “What Is the Third Estate?”), Madison addressed the same issue in the context of the American constitutional debates. Unlike Sieyès, however, he acknowledged the vexing nature of the problem from the outset. In response to the charge that the Philadelphia Convention of 1787 transgressed its mandate by framing a new constitution, he writes: “in all great changes of established governments, forms ought to give way to substance … since it is impossible for the people spontaneously and universally, to move in concert toward their object; and it is therefore essential, that such changes be instituted by some informal and unauthorised propositions, made by some patriotic and respectable citizen or number of citizens.”15 Madison squarely admits that an “unauthorised” move is necessary to break the vicious circle in which every act of foundation with a democratic intent is caught up. Those who get together to frame a new constitution in an assembly speak in the name of a people who could not have duly authorized them or given them a coherent mandate. In this respect, there is a sense in which constituent assemblies play a formally similar role to Rousseau’s lawgiver. In both cases, “the people” seems to emerge as a democratic agent capable of self-determination only after the fact, that is to say, only when somebody else lays down the enabling conditions of democratic will-formation, whether these conditions are construed in terms of a civic ethos or a set of procedures and institutional forms.16
Does the Paradox of Founding Involve a Category Mistake?
What do we make of the paradox of democratic founding? The foregoing exposition is meant to give the conceptual contours of the problem; yet, it does not tell us how we are supposed to make sense of it. The problem is clear in its two basic versions, but what does it really signify? For some, to put it in a straightforward manner, it does not signify anything important or consequential. This, for instance, is Hegel’s view on the topic. He thinks that the paradox in question designates a trivial issue, which hardly merits serious treatment. More specifically, he takes it as yet another example of “those confused thoughts” arising from the “garbled notion of the people”—or, which comes down to the same thing, as a category mistake regarding the meaning of popular sovereignty and its proper sphere of application.
Hegel puts the point in a compelling way in the Philosophy of Right, first published in 1821, when the memory of the French Revolution was still fresh everywhere in Europe. The passage is worth quoting at length:
the usual sense in which the term “popular sovereignty” has begun to be used in recent times is to denote the opposite of that sovereignty which exists in the monarch. In this oppositional sense, popular sovereignty is one of those confused thoughts which are based on a garbled notion of the people. Without its monarch and that articulation of the whole which is necessarily and immediately associated with monarchy, the people is a formless mass. The latter is no longer a state, and none of those determinations which are encountered only in an internally organized whole (such as sovereignty, government, courts of law, public authorities, estates, etc.) is applicable to it. It is only when moments such as these which refer to an organization, to political life, emerge in a people that it ceases to be that indeterminate abstraction which the purely general idea of the people denotes.17
To be sure, Hegel’s defense of constitutional monarchy as the sole form of the rational state has been long outdated (in fact, it was hardly tenable even in his own time18). Yet his complaint about “the people” has a much broader purchase.
Hegel does not take issue with the basic normative insights underpinning the doctrine of popular sovereignty. On the contrary, his philosophical account of the modern state is structured around the idea of freedom as self-determination and its realization through an institutionally mediated web of interactions among equal citizens.19 His point is rather that popular sovereignty is exercised in and through the institutional edifice of the state, and hence does not apply to the founding of this edifice. Without the constitutional state as an “internally organized whole,” the people is either a “formless mass” or an “indeterminate abstraction,” that is unable to carry out any positive or constituent action.20 In other words, popular sovereignty makes sense only in the context of an established political order by virtue of which the people already exists as an organized community. This is a view that widely resurfaces, albeit in different ways and with different twists, in contemporary treatments of constitutional democracy.
According to János Kis, for example, as we already quoted in the previous chapter: “Popular sovereignty is a feature of political regimes rather than something actually exercised prior to the establishment of political regimes. The question is not whether it was the people that created the state for itself by some original act but what the practice of authorization is like in the state, once it has been established.”21 Stephen Holmes makes a similar point when he insists that we can meaningfully speak of popular sovereignty as a democratic principle only within the framework of constitutional restraints that establish procedures of decision-making and enable the practice of self-determination. Echoing Hegel’s complaint about the “garbled notion of the people,” Holmes writes: “A collectivity cannot have coherent purposes apart from all decision-making procedures. The people cannot act as an amorphous blob.”22 Working through the difficulties of the concept of constituent power, Ulrich Preuss likewise comes to the conclusion that it is not the people who make the constitution but the other way around. Since “constitutions are instruments of collective self-organization,” Preuss maintains, “the idea of a constituent power which creates a new order ex nihilo is a (perhaps necessary) fiction”—that is to say, “the constitution gives birth to the people in the sense in which this notion has been developed for the concept of democracy.”23
Whatever its merits may be in other respects, this line of argumentation does not squarely face up to the paradox of founding. Arguments locating popular sovereignty within the constitutional democratic state and taking it in relation to the structure of the regime rather than its pedigree do not make the paradox disappear or save us from the vexing issues involved in it. What they do instead is to shift the emphasis from the primacy of the people to that of the constitution. However, such a move raises more questions than it actually answers. Several issues come to mind immediately. If it is the constitution that makes the people, then, who makes the constitution? How are we to understand the making of the democratic constitution anyway? If the people themselves cannot act in a constituent capacity and exercise popular sovereignty prior to the making of the democratic constitution itself, who speaks in the name of the people and with what title? At any rate, how do we know (or can we ever know) whether a constitution actually and authentically stands for the people? I do not think that democratic theory can afford to ignore such questions. Even when one concedes that the people cannot underwrite their political organization through an original exercise of popular sovereignty—as Kis, Holmes, and Preuss seem to suggest in their own ways—what this would signify for the concept of democracy in general and for the formation of a democratic political community in particular is still far from self-evident and stands in need of elucidation.
All in all, there is something deeply unsatisfactory in dismissing the paradox of democratic founding as a category mistake about the proper application of popular sovereignty. Such an approach leaves the issue of founding simply intact. Hegel is again illustrative here. At one point in The Philosophy of Right, he takes up the question of constitution-making, but only to dismiss it immediately: “It
