Three arenas of struggle: A contextual approach to the constituent power of ‘the people’

Abstract

AbstractAgainst recent contributions to the debate about the constituent power of the people, the article proposes to reorient the debate by analytically distinguishing three dominant arenas of political struggle – democratic, social and national – in which the vocabulary of ‘the people’ and its constituent power is invoked. The invocation of the ‘will of the people’ and its constituent power in these arenas is associated with different assumptions, risks and implicit ideational trade-offs that must be laid bare. A contextual approach to constituent power counsels caution in dignifying pro-democratic constitutional transformations with the name of ‘the people’. It invites those who theorize constituent power with social struggles in mind to rebalance their attention to constituent power – and devote more attention to imaginaries and strategies that minimize moral hazards implicit in the vocabulary of peoplehood and to maximize the likelihood of the new order’s survival. Finally, a contextual approach rejects the role for constituent power in national struggles, arguing that constitutional theory is incapable of arbitrating between competing assertions of popular sovereignty. In the final part of the paper, I defend the contextual approach against the theoretical interventions currently on offer, and gesture towards its potential in crafting aprovincializedconstitutional theory.