Constituent Power and the Material Constitution

Abstract

What does the concept of constituent power look like through a materialist lens? At its most basic, constituent power is the power to make and sustain a polity as a constitutional order. The location of this power changes over time and so a historical approach is required. According to Sieyes's influential pamphlet, constituent power lies with the Third Estate, the newly emerging commercial class in the new liberal polity held as both productive and representative of the entire nation. With the development of Marxist materialism in the long nineteenth century this settlement come under fire as liberalism is critiqued as ideological and a new productive and representative power emerges as potentially constitutive of the polity, the industrial working class. Marxism classically holds this up as a revolutionary class capable of transcending the capitalist mode of production and forging a truly universal socialist society, but subsequently splits amid ambivalence about the prospects for change within the channels of liberal democracy. However, the liberal state's failure to answer the social question coincides in a third step with a different, conservative conception of constituent power as constitutional identity. Far from an expression of the productive and representative power of the people, as formulated in different ways by Sieyes and Marx, constituent power is delinked from any notion of materialism and revolutionary change. It becomes, in Schmitt's hands, a metaphysical notion that symbolises a pre-existing Constitutional identity with a juridical function to conserve the status quo. It is this conception which comes to dominate liberal constitutional thought.

Keywords: constituent power, material constitution, Marxism, liberalism, conservatism