Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to create, control and dismantle the constitution of governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democrac, have taken leave of this tradition. They have severed the connection between sovereignty and action. What remains of popular sovereignty are dispersed networks of deliberation and the principle of 'all affected interests', underscored by Lefort's idea of the 'empty place of power'. The very concept of sovereignty has become unpopular. This contribution aims to re-establish the link between popular sovereignty and action by examining sovereignty’s emancipatory telos, its majoritarian mode of operation and its dependence on citizenship.
In order to understand the current calls for censorship, we must turn to the assumptions that comprise what political philosopher Charles Taylor calls the “social imaginary”, the way in which liberal ideas have shaped the way we think of ourselves. Once we see the explanatory power of these assumptions, we can understand why the call for censorship is voiced in such an urgent and confident manner; but it is also apparent that the confidence is misplaced, as it springs from nothing more than an ideology. To fully understand the rise of this pro-censorship liberal ideology, one must begin with an understanding of liberalism in its pro-speech form. Liberalism, as a political doctrine that seeks to secure a degree of liberty for diverse groups of people, is deeply unstable. We can then see how it gives rise to an authoritarian strain of the doctrine, which aims at homogeneity of belief. It is this doctrine that is implicated in the call for censorship; it prizes liberty in name alone.
Debates in constitutional theory have become increasingly preoccupied with populism. While most contemporary constitutionalists have a highly critical attitude toward populism—identifying it as the main cause of the ‘erosion’ of the rule of law or democratic ‘decay’—others are more sympathetic. Though highly contestable, both camps take the existence of populism for granted. This presentation proceeds from two assumptions that go against this unstated consensus: (1) Like all political concepts, populism has polemical implications; (2) Like all polemical concepts, populism is a concept that must be staged, in two senses. It hinges on a dramatized depiction of our overall sociopolitical situation. More importantly, populism is a concept that acts as a stage prop. Painted in dark colours, populism’s function is to make liberal democracies look better. Rather than an existential threat, populism is a rhetorical distraction from other, potentially more fruitful questions.
A foundational dichotomy in Public Law is that of Rule of Law and Rule by Law, sometimes marking a distinction between liberal-democratic and authoritarian States. Against such essentialism, this paper argues that within a given State, the constitutional order is characterized by coexisting layers of liberal-democratic and authoritarian norms. This constitutional dualism is structured along a multidimensional axis. The Constitution grants or denies protection depending on the individual, the subject-matter, the time, and the place. These fault-lines fluctuate according to the workings of reason of State and the practice of sovereignty. Based on a critical reading of French constitutional history from the French Revolution until the Yellow-Vests Movement, this paper documents the operation of dual constitutionalism in the French context. It suggests that Rule of Law and Rule by Law are two sides of the same coin – constitutionalism being a process of both inclusion and exclusion.
Near three decades after Chile’s return to democracy its constitution remains a source of persistent unease. It is not only that the constitution was approved during an oppressive and murderous dictatorship after a fraudulent plebiscite but, via a series of mechanisms usually called “authoritarian enclaves”, the constitution has thwarted reform of key political and economic policies. On this account, even as the political order it constitutes increasingly resembles a formal democracy, it will not become a substantial democracy, ie. one that allows government to truly pursue the interests of the many. I argue in this paper that this can only be understood from the demands of popular sovereignty. Paradoxically, to explain why the constitution has, nonetheless, proved to be so resistant to attempts at wholesale reform one has to understand that it has come to be unintendedly endowed with democratic credentials by the leading Chilean democratic political parties and leaders.