it is quite simply that which has being in and for itself, and should therefore be regarded as divine and enduring, and exalted above the sphere of all manufactured things.”24 One cannot help but infer that Hegel’s ultimate response to the question of constitutional founding is that one ought not to ask that question!25
Despite Hegel’s best efforts to efface it, the question has proved to be persistent. The paradox of democratic founding is a recurring theme in contemporary political theory, and theorists working in different traditions have picked up on it from a variety of angles, unpacking its implications in their own ways. In what follows, we will look at these contemporary restatements more closely in three consecutive steps: our first stop is Jacques Derrida’s reformulation of the paradox of founding through the lens of speech act theory; next, we turn to recent interpretations of Rousseau’s paradox, particularly those offered by William Connolly and Bonnie Honig; and finally, via Frank Michelman’s writings, we will focus on the procedural version of the problem and explore the ways in which it is brought to bear on the deliberative conception of constitutional democracy. Before moving on, a final reminder is in order: these three sections are primarily intended to be expositional. The reader will find a critical discussion at the end of the chapter.
Founding Acts and Speech Acts: Jacques Derrida
Beginning with a short but provocative essay on the American Declaration of Independence, the paradox of founding comes in focus in Jacques Derrida’s work via linguistic means of analysis derived from speech act theory. At the center of Derrida’s reading of the Declaration is the seemingly neat distinction between “constative” and “performative” utterances, developed (and later abandoned) by J. L. Austin in How to Do Things with Words. According to Austin, a constative is a verifiable utterance, the paradigm of which is the traditional proposition. It is meant to state some fact or to describe some state of affairs, and it must do so either truly or falsely. A performative is also an utterance, but of a very different kind. It does not describe a state of affairs, it brings about one. When I say “I promise,” I do not describe myself as promising, I perform the act of promising. Austin rightly observes that such utterances are not subject to verification in the same way as constative ones because actions cannot be “true” or “false.” Nonetheless, there is success or failure in the performance of an action, which prompts Austin to suggest that a performative utterance can be “felicitous” or “infelicitous” depending on whether it succeeds or not in doing what it says.26
Reading the American Declaration of Independence through Austin’s distinction, Derrida asks a basic question: does the Declaration make a constative utterance or a performative one? “Is it that the good people have already freed themselves in fact and are only stating the fact of this emancipation in the Declaration? Or is it rather that they free themselves at the instant of and by the signature of this Declaration?”27 One cannot say for sure, Derrida observes, whether independence is “stated” (as in a constative utterance) or “produced” (as in a performative one). This “undecidability” is due to the circular relationship of the text to its signer, namely “the people,” or the “we” of the Declaration. On the one hand, it seems, it is the signature of the people that authorizes the Declaration—in which case the Declaration would consist in a constative utterance by an already independent people stating its independence. On the other hand, however, “this people does not exist,” Derrida argues, “before this declaration, not as such”28—in which case it would be the Declaration itself that brings about independence by a performative utterance, thereby creating the people as an authoritative subject capable of underwriting the Declaration. Thus, at one and the same time, the Declaration both presupposes and constitutes its signer. The paradox of founding is at play.
Much of this may look like a case of old wine in new bottles.29 But there is actually more to Derrida’s argument than a simple restatement of the paradox of founding via linguistic analysis. Derrida attempts to reshape our understanding of the problem at a fundamental conceptual level by presenting the act of foundation itself as a speech act. If he is right in this claim, then it means that speech act theory is not simply applied to the problem of founding as though from without, and that the problems of speech act theory are also the problems of the politics of founding and vice versa. To get a better grasp of this point along with its wide-ranging implications, we need to get back to Austin’s theory of performative utterance and see Derrida’s critique of it.
According to Austin, the efficacy of a performative is ultimately a matter of convention. Take for instance the words “the class is dismissed.” They mark the end of the lecture and effectively dismiss the class only when they are uttered by the lecturer in the classroom. This is because there are certain conventions in place, some formal and some informal, that determine how lectures are to be conducted, thereby enabling the efficacy of the performative. “There must exist an accepted conventional procedure having a certain conventional effect”—this is Austin’s famous Rule A.1, the first rule of performative felicity.30 But now consider the same sentence, “the class is dismissed,” as being uttered by a student who thereby reports to another student what has just happened. Although the utterance is linguistically the same, not only do the student’s words lack the power to dismiss the class (a matter of convention), but their meaning is also different. This is because the context has changed. In terms of a distinction that Austin developed later in the text, the same “locution”—the same sentence taken as an isolated linguistic unit—would have quite different “illocutionary” meanings depending on the context.
The underlying idea is that in order to give an account of language as a way of doing things in the world one must consider the interaction between linguistic utterance and social practice, which in turn involves issues of context and conventionality. Derrida applauds Austin for this move. However, in Derrida’s view, something has also gone wrong in Austin’s project from the outset. While Austin acknowledges that no sentence can be self-identifying and that its meaning depends on the context, he proceeds with the assumption of a stable and static context that serves as the guarantor of meaning. Just as a free-standing sentence cannot identify its own meaning, Derrida objects, a context cannot be fully transparent either. “This is my starting point,” he announces: “no meaning can be determined out of context, but no context permits saturation.”31 Contexts are unsaturated, conventions are dynamic, and both are essentially exposed to indeterminacy. Austin comes to acknowledge this, but only in passing, when he admits that “it is difficult to say where conventions begin and end.”32
We may begin to see here the big picture regarding the profound affinity between the problems of speech act theory and the problems of the politics of founding. It is indeed difficult to say “where conventions begin and end,” and this is particularly so in revolutionary situations. When the American colonists declared independence in 1776, or when the delegates of the French Third Estate adopted the title “National Assembly” in 1789, they did not rest on “an accepted conventional procedure having a certain conventional effect” (Austin’s Rule A.1). Rather, it was the other way around. In both cases—and many others since then—the performative speech of the dissenters challenged existing conventions, while at the same time creating new ones. Revolutionary acts of foundation turn Austin’s Rule A.1 upside down. Instead of performatives depending on conventions, conventions are brought to depend on performatives.33
What follows from this reversal, according to Derrida, is that every act of foundation is by definition groundless and violent in a certain sense. In the “Force of Law,” he puts the point emphatically:
The very emergence of justice and law, the founding and justifying moment that institutes law implies a performative force…. Its very moment of foundation or institution (which in any case is never a moment inscribed in the homogeneous tissue of a history, since it is ripped apart with one decision), the operation that amounts to founding, inaugurating, justifying law (droit), making law, would consist of a coup de force…. Here the discourse comes up against its limit: in itself,
