The doctrine of constituent power has played a central role in devising the conceptual architecture of the modern democratic polity and of modern society more widely.Footnote 1 Most vitally, the classical doctrine of constituent power revolved around the claim that constituent power forms an original and pre-legal wellspring for legitimate political order, in the exercise of which the sovereign subject of the people (or the nation) first enacts and authorizes the laws (the constitution) by which the people is then publicly and objectively bound.Footnote 2 On this basis, the self-given laws of the people, reflecting the pre-legal externality of constituent power, were conceived as an irreducible foundation for the legitimacy of the modern state. The original idea that the political institutions of society could be authoritatively created by one external constituent will served at once to satisfy the expectations of shared autonomy and collective freedom which accompanied the rise of modern society, and clearly to abstract a single, simple, positive source of authority for the power of the modern centralized state (see Beaud Reference Beaud1994: 216–17). For both these reasons, the idea of constituent power became fundamental to the founding self-comprehension of modern society (i.e., to a society marked by high levels of institutional differentiation and personal independence), and it assumed great symbolic importance as the expression of a defining distinction between modern and pre-modern patterns of social order (Grimm Reference Greene1991: 12).
In contemporary society, however, the relevance of this core conceptual structure has seemingly changed. The extent to which the legitimacy of political institutions can be derived from a single and clearly external source of norms is now widely open to dispute, and the primary constitutional laws of contemporary society show a rapidly decreasing reliance on identifiable acts of constituent power. Indeed, the apparent erosion of constituent power is visible in many contemporary contexts, and in many settings in which in classical democratic theory the need for constituent power was most strongly emphasized the actual exercise of such power has now become weak or is transferred to constituted bodies.
This weakening of constituent power in contemporary constitution-making is evident, first, in cases of constitutional transition and democratic re-foundation in national polities. In contemporary processes of democratic constitutional redirection constituent power is only rarely exercised in pure form. Instead, constituent force is constrained and predetermined by a body of established transnational norms (that is, norms which have manifest effect beyond national societies, but which are produced in relatively spontaneous fashion, are not codified in authoritative documents of international law, and do not originate in clearly sovereign acts), which impact decisively on new primary constitutional laws in national polities. In particular, democratic constitutional transitions are usually shaped by the fact that constituted actors, especially institutions exercising judicial functions such as national constitutional courts and international judiciaries, assume authority to ensure compliance of new constitutions with transnational norms, and they interpret and apply such norms to set the parameters within which the constitutions of distinct national polities are designed (for examples see Dugard Reference Douglas-Scott, Walker, Shaw and Tierney1997: 78; Klug Reference Klein2000: 1).Footnote 3 In extreme cases, national constitutions are even drafted by external agencies or bodies implementing international-law agreements (Chesterman Reference Chesterman2004: 140; Feldman Reference Feldman2005: 858; Dann and Al-Ali Reference Dann and Al-Ali2006). The assertion of an original constituent power as the basis for national democratic order is now, in consequence, always restricted, and often impeded. Effective constituent power is freely accorded to judicial institutions applying transnational norms, which are usually underpinned (immediately or more remotely) by guidelines regarding human rights.
Second, in more institutionally delineated multi-national polities, such as the European Union (EU), the tendency towards the erosion of constituent power is replicated and reinforced.Footnote 4 The (as yet informal) constitution of the EU possesses emblematic status for the broader reconfiguration of constituent power. In the EU, principles acquiring constitutional force were originally established as such by judicial actors, primarily the European Court of Justice (ECJ). Notably, the ECJ gradually transformed the initial inter-state treaties between member states of the European Economic Community (EEC) into norms with constitutional standing, and it ascribed direct effect to EEC laws, thus binding national courts and national legislatures to European directives.Footnote 5 In the EU, courts now collaborate across boundaries in utilizing constituted powers both to construct and amend an emergent transnational constitution: they found a nationally overarching body of obligatory norms, which is not based in specific agreements of international law, but which nonetheless predetermines the primary laws of national polities.Footnote 6 Underlying this partial comity between European courts lies a bedrock of rights norms, which, although variously interpreted by different courts, forms a reasonably uniform and de facto constitutional substructure for the EU as transnational polity (Ward Reference Walker, Loughlin and Walker2007: 9; Hinarejos Reference Helfer and Alter2009: 6–7; Douglas-Scott Reference Douglas-Scott2011: 129). Although the original treaty of the EEC did not impute constitutional standing to rights, expectations in respect of rights have been elevated by the ECJ to the extent that they now supply an autonomous foundation for inter-systemic legal convergence in the EU.Footnote 7 As a result, rights replace constituent power as the basis for primary legislation both in the EU as a separate polity and in the member states. Without specific constituent authority, rights reach across original national divides, and they promote, in nominally separate jurisdictions, like directives for legal rulings, legislative decisions, and acts of polity building (Haltern Reference Haines2005: 362; Douglas-Scott Reference Diggelmann and Altwicker2006: 630; Frerichs Reference Fossum and Menéndez2008: 67).Footnote 8
As a more general point, third, contemporary society in the broadest sense is in the process of evolving a system of public law based in an ongoing multiplication of constituent power(s). That is to say, contemporary society is pervasively shaped by the emergence of a pluralistically authorized legal order, in which, notably, judicial institutions, applying normative principles across national fissures, are assigned competences traditionally accorded only to bearers of constituent power and establish transnational laws with effective constitutional rank. In this constitutional order, legal norms, promulgated either through supranational bodies (United Nations, World Trade Organization) or supranational courts (International Court of Justice, ECJ, European Court of Human Rights), act, without manifest constituent origin, to disseminate higher-norm expectations regarding matters for legislation, both at a national and at a transnational level. These norms are typically underpinned by principles defined by international rights agreements, and they are translated, usually via national courts, into norms with effective or near-constitutional force in national political settings. In this respect, courts interact to produce a system of overlapping jurisdiction, forming a many-tiered supranational constitution, whose norms, by numerous processes of transplantation, structure the constitutional reality of particular states.Footnote 9 In this legal apparatus, courts acquire broad constitution-making powers, and the normative superstructure generated through the national and transnational comity of courts stands in for classical expressions of constituent power.
This broad transformation of constituent power in contemporary society has not gone unnoticed. Discussion about constituent power currently enjoys intensified prominence in different bodies of literature.Footnote 10 For instance, concern with constituent power is salient in analyses that express alarm about the growing power of the transnational legal domain. Such analyses typically argue that the emergence of nationally overarching governance structures has hollowed out centres of political authority constituted by identifiably sovereign actors, and it has eroded the defining premises of governmental legitimacy (see Grimm Reference Greene1991: 31; Loughlin Reference Lienesch2009). On this neo-classical account, the legitimate exercise of power presupposes a single constitutionally organized polity, which immediately expresses the principle of collective/volitional self-legislation inscribed in constituent power. Concern with constituent power is also evident in research examining multi-national polities such as the EU. This research also claims that the ability of constituent actors to produce primary laws in acts of free volition has been lost (see Walker Reference Voßkuhle2012: 58). Indeed, the absence of a traditional constituent power has haunted research on the public-legal order of the EU from its inception until today.Footnote 11 Research on the more general form of the transnational constitution subdivides into rival orthodoxies, each of which approaches the question of constituent power in a very different way. One stance in research on global constitutionalism suggests that supranational judicial actors are appointed executors of a quasi-federal supranational constitution, such that, from the perspective of international law, national states themselves are not categorically distinct from other subjects under constitutional law, and cannot exceed the limits of constituted power (see Klabbers, Peters and Ulfstein Reference Kavanagh2009: 154–5, 179). Such approaches usually claim that supranational judiciaries give effect to a constitution that is clearly prescribed and realized in such defining (and therefore constitutive) documents as the original UN Charter, the Universal Declaration of Human Rights, and the European Convention on Human Rights: the weakening of national-democratic agency through international rights norms is of itself constitutionally ordained.Footnote 12 Despite this, however, much research in this field is reluctant to account for the transnational order as possessing a formally realized constitutional character.Footnote 13 Such analysis usually examines global society as possessing a hybridized public-legal order. One feature of this legal order is that constituent power is regularly entrusted to already constituted institutions, so that constitutional norms are in a state of evolution, without reversion to a primary constitution-making situation (Walker Reference Vandenbergh2009: 172). The contemporary transnational constitution is thus construed as possessing a multi-constituent form.Footnote 14
The most essential outcome of these wider processes of transnational constitutional restructuring is that the position of the law and the relation between law and constituent power in the legitimate polity have changed. To summarize some of the points above, first, constituent power is now almost invariably subject to prior transnational legal circumscription. This means that national and supranational laws interlock in uncertain fashion, and few laws can be seen clearly to originate in primary constituent acts, situated strictly outside the law. In addition, second, numerous institutions, but mainly constituted judicial bodies located between national polities and supranational legal domains, assume powers of constitution making. This also means that the legitimating status of constituent power as an originating external source of law is undermined. Furthermore, third, the strict functional division between constituent and constituted power has become blurred. Many actors, nationally and transnationally, now move freely across the once (conceptually) clear line between constituted and constituent power, and constituted actors purposefully arrogate de facto constituent power. This is again most pronounced in the case of courts, which routinely employ constituted powers both independently to rewrite the foundations of their own authority and to articulate founding norms for other branches of government (national and transnational).Footnote 15 Constituent power, in short, is now intrinsically juridified: it was once the original and external source of law, but it is now stored within the law.Footnote 16 Tentatively, in fact, we can conclude that in the contemporary political system constituent power has been supplanted by rights as the dominant source of legitimacy; this shift underlies the changing political form of contemporary society. Transnationally enforced rights norms now increasingly pre-define the constitutional conditions for the legitimate exercise of power, and it is from norms in respect of rights, not from any primary sovereign act of constitution making, that the contemporary political system generally derives its authority and its self-explanation. Rights are in fact typically transplanted across national divides by judiciaries, and they act as movable surrogates for constituent power wherever polity-building functions or justifications for primary acts of legislation are required. As a result of this, a transnational constitutional order is emerging, which is defined by the fact that the direct pre-legal origin of legitimacy is lost, and political institutions now acquire their authority from pre-constituted actors and pre-constituted legal norms, usually based in expectations derived from a corpus of transnational rights. Constituted actors (usually in the judiciary) endlessly re-enter constituted norms into the political system, and these norms are allowed to act as a source of – apparently original – legitimacy for primary laws, single statutes, and new institutions. Indeed, pre-constituted judicial actors increasingly operate as bearers of recursive or auto-constituent power, which they allocate to other institutions as the basis for primary acts of polity building and legislation.
At stake in this transformation of constituent power is the question of law’s authority as positive law. In society marked by a post-constituent constitution, law’s authority is left to repose on inner-juridical principles, and its final point of constituent regress vanishes. This means, in essence, that the modern constitutional order provides the basis for a distinctively internalistic or self-referential political system, which is defined by its lack of legitimacy ab extra. As discussed, legitimacy is derived from actors already possessing constituted power, and it is extracted from norms already endowed with constituted force. On these grounds, seemingly, the founding grammar of political legitimacy is called into question. Indeed, much of the most influential literature in contemporary political theory is concerned, at the deepest level, with re-imagining ways in which legitimacy might again be produced outside the political system.Footnote 17
A systemic/functionalist approach to constituent power
This article proposes a controversial method for analysing both the reality and the theory of constituent power in the context of the emergent transnational constitution: that is, in the context of a global society which is increasingly marked by a general normative order, whose origins cannot be traced either to the single acts of national or international law-makers. As an overlying claim, it suggests, first, that, despite its founding significance for the self-comprehension of the modern political system, constituent power should not be viewed, literally, as an external source of legitimacy for the political system. Instead, this article proposes a sociological, functionalistically configured conception of constituent power. It examines the idea of constituent power, and the theoretical elements of constitutionalism more widely, not as objective or externally produced descriptions of the political system and its normative foundations, but rather as adaptive functional elements, which the political system of modern society reflexively generates for itself.Footnote 18 Constituent power, therefore, needs to be viewed as a reality projected for and within the political system, through which the political system simplifies and adaptively orders its functional structure. In particular, this article observes the elements of constitutionalism as reflexive institutions, which contribute vitally to the construction of the political system as a separate functional domain in society, and which assume fundamental importance in preserving the inner integrity of the political system as a positive, self-contained aggregate of functional exchanges.Footnote 19 On this premise, this article argues that the common perception of a decline of constituent power in contemporary constitutions suffers from excessive literalism. In identifying a deep rupture between classical and contemporary constitutionalism (that is, between constitutionalism centred in national-sovereign acts and constitutionalism centred in transnational processes of norm construction), this perception rather crudely conflates political concepts with factually existing realities. Indeed, the assumption of a deep transformation of constituent power originates in a literalistic misconstruction of classical constitutionalism. On this basis, then, this article outlines a revised approach to contemporary constitutionalism. It argues that, beneath its literal surface, the tendency towards recursive internalism in the contemporary transnational constitution does not negate the principles of classical constitutionalism: on the contrary, it reveals a deep continuum with the earliest sociological functions of constitutionalism. Even as it insisted on attaching the legitimacy of the political system to external norms and modes of agency, constitutionalism provided from the outset a distinctive internalistic register for the organization of society’s political exchanges. The internalism of the political system under contemporary constitutional conditions, therefore, intensifies a dimension contained in all constitutionalism. Overall, this article proposes a conception of constitutionalism as an internal adaptive vocabulary of the emergent political system, and in so doing it seeks to promote sociologically adequate comprehension of increasingly dominant constitutional practices in contemporary society.
To illustrate these claims, we can observe that the first articulation of constituent power as a primary concept of political legitimacy was bound to a formative process of adaption within the political system of modern society, and this concept brought clear internal/reflexive benefits to the political system at a crucial juncture in its functional evolution. The founding register of modern constitutional law in fact gave heightened intensity to a historical process in which, in the course of early modernity, most European societies had witnessed the emergence of a distinctively political functional arena, separated from the privatistic milieux of feudal social order, and they had established a body of concepts and procedures by means of which political actors were able independently to construct and react to matters of highly generalized (that is, clearly political) structural resonance (see Bisson Reference Bisson2009: 484). The formation of a vocabulary of constitutional law occurred at a moment in the evolution of modern society, at which the political system was increasingly differentiated from other functional spheres (e.g., religion, economy, science), and this vocabulary enabled the political system to produce legitimacy for its power without deep reliance on external principles, norms and social attachments. In particular, the elemental concepts of constitutionalism (i.e., constituent power, separation of powers, basic rights) provided instruments for internally augmenting the volume of power which political systems of later early modernity were increasingly required to deploy, and they strengthened the inner capacity of political systems for storing, exercising, and reproducing political power in a demarcated political sphere. Through the emergence of a constitutionalist vocabulary (increasingly centred on the concept of constituent power), the political system acquired a formula in which it projected itself both as independent of specific natural persons and as categorically distinct from all external private actors, and in which it could propose itself as an internally unified and cohesively legitimated set of institutions. This meant that the political system could apply political power consistently and in equal manner through society to all persons, it made society subject in an inclusively even and uniform fashion to the reserves of power held within the political system, and it exponentially increased the quantity of power that the political system contained. In fact, the constitutionalist vocabulary played a vital role in transforming the loosely correlated, half-privatistic, political system of early modern society into the concentrated, and increasingly monopolistic, edifice of the modern state.
The initial formation of a vocabulary of constitutional law, in sum, expressed a set of formulae which brought great structural and functional benefits to society by serving the inner differentiation and simple abstracted organization of the political system. In this respect, however, it is discernible that, as the basic concepts of constitutionalism gained in functional resonance, the actual objective reality underlying these concepts remained deeply unstable. The relation of these concepts to an external, extra-systemic order was always ambiguous, and the reality which they constructed for and within the political system only partly overlapped with a reality objectively evident in society as a whole. Indeed, the doctrine of constitutionalism (centred on constituent power) assumed its distinctive functional status for the political system precisely because it formed an inner projective vocabulary, which heightened the autonomy of the political system in relation to external factual conditions. The functional benefits of constitutionalism as political vocabulary, thus, always depended on its essentially projective, internalistic content. It was, primarily, as a reality for and within the political system that constitutional norms and practices played their abstractive and transformative role in the evolution of modern society.
The internalistic functional dimensions of constitutionalism are visible in different ways. Primarily, however, the functional quality of constitutional concepts can be discerned through sociological analysis of the first modern constitutions, in America and France. Historical-sociological reconstruction of these classical constitutions in fact clearly illuminates both the abstractive functional implications and the essentially self-projective quality of classical constitutional concepts and practices: especially the concept and practice of constituent power.
The projection of constituent power: The people
The theory of constituent power began to assume its contemporary features in revolutionary America, and it was here that constituent power first emphatically asserted itself as the essential prerequisite for governmental legitimacy.Footnote 20 Notably, in this regard revolutionary America was marked by an expansion of the diction of popular sovereignty and representation, which had previously acted to raise the functional autonomy of the English state.Footnote 21 In America, this diction was translated into the premise for a process of state foundation ex nihilo, in which state institutions assumed autonomy in rapidly expedited fashion (Wood Reference Williams1993: 914). Although occurring outside the immediate European environment, therefore, the constitutional revolution in America extracted the functional substance from political principles which had already assumed state-building resonance in England (and elsewhere).Footnote 22 Amongst these principles, the concept of constituent power played a most substantial role, and the presumption that the new American states were defined by immediate proximity to external constituent power was crucial for the building and stabilization of state institutions in the process of the fragile and inherently exceptionalist separation of the colonial polities from Britain (Rakove Reference Pincus1997a: 56).
The conception of the state as constitutionally willed by the people helped to consolidate the political system in America in different ways, and it performed a number of basic abstractive functions for newly emergent states. First, this conception made it possible for single states in revolutionary America to articulate an independent foundation for their use of power, through which they could explain themselves as substantially distinct from, and more authentically legitimate than, institutions in which the imperial authority of the British crown was vested. Then, the claim of single states to authorization through constituent power meant that they could account for their origins and their ultimate construction as specifically public, and they could stabilize their use of power across a growing society, still uncertainly supportive and unevenly receptive to political jurisdiction, by presenting those persons subject to power through society as the implicit authors of the power applied to them. The proclaimed public or national dimension in the formation of power – that is, the principle that power in some way belonged to those who received it from the political system – thus assumed vital importance both in the initial legitimization of American political institutions in independence of British imperial authority, and, subsequently, in the rise of integrated and inclusive structures for the transmission of political authority in the new single states.Footnote 23 Ultimately, moreover, the concept of constituent power made it possible for an overarching federal state to emerge, in which, in designated functions, political power could be applied, and presuppose consent, across highly diffuse societal environments, which often showed very limited responsiveness to centralized reserves of power. Most notably, the claim that it originated in a constituent act of a sovereign nation allowed the diffuse and multi-level federal state in post-founding America to propose itself as deriving authority from one primary identifiable source. This permitted the state as a whole to project a simple yet transcendent account of its legitimacy, within which factual authority (not sovereignty) could be subdivided between the different institutional levels which the federal polity comprised.Footnote 24 The reference to constituent power made possible the formation of a political system able to integrate the diffuse institutions of state, and to support the application of power across very disparate social locations (McDonald Reference McCrudden2000: 20). In both respects, the idea that power was immediately formed by the people (nation) itself was a vital element in an accelerated process of state construction, in which loose and hastily established institutions were rapidly required, from a low starting level, to generate legitimacy against a societal background not centred on simple patterns of will formation. Both at federal and at state level, the principle of constituent power acted as an impetus that definitively shaped the political system as a distinct domain in American society, and it created an inclusionary reference within the political system, through which, improbably, it could abstract and authorize its power across extremely acentric societal environments.
Even in such formative constitutional situations, however, the concept of constituent power should not be seen as containing a literal external source of legitimacy for political system.Footnote 25 In the first instance, the actual extent to which constituent power was exercised in the drafting of early American constitutions is disputable. Even the most republican constitutions of the revolutionary era were scarcely authorized by a constituent authority standing outside inherited political institutions, and the original power to write constitutions was allocated and exercised in very ad hoc fashion. The state constitutions in the first wave of constitution writing (1776–7) were typically enacted by sitting colonial administrations or improvised conventions.Footnote 26 Moreover, they were usually generated from a fixed template, pieced together from previous normative models (Baum and Fritz Reference Baum and Fritz2000: 208–9). Above all, early American constitutions were not expected to be in force for very long, so concerns for constituent power were peripheral to their conception (Kruman Reference Krisch1997: 7; Tarr Reference Stone Sweet1998: 67; Adams Reference Adams2001: 3). It was not until 1780 that a state constitution (in Massachusetts) was ratified through any show of public consent (Adams Reference Adams2001: 95). In consequence, the external authorization of these constitutions was minimal. Subsequently, the Federal Constitution of 1787–9, although also claiming authority from constituent power, was written by a constituent body with rather remotely devolved powers. Its relation to actors decisively external to the political system – that is, to ‘the people’ – was, although not non-existent, perceptibly tenuous: this fiction was decried during the post factum ratification process in 1788.Footnote 27 Indeed, leading Federalists in the Federal Convention observed the new constitution, quite expressly, as an instrument for obviating the formation of a polity based in mass enfranchisement and for excluding the people from the factual exercise of governmental authority (see Farrand Reference Ely1911: 37).Footnote 28 At both stages in the formation of the American polity, in short, the idea of constituent power had its primary reality as a principle through which the political system explained itself through society and adequately controlled its inner inclusionary functions. The idea that the political system was established and legitimized by the people assumed immeasurable significance as an internal form, in which the deeply diffuse political system of the new American Republic could project a simplified construct of its operations, and consolidate itself as a positive functional domain. But this internal formula was not based unequivocally in a source of agency existing outside the political system.
In the environment of revolutionary Europe in the late eighteenth century, the concept of constituent power had analogous, although also rather different, implications. In this setting, the concept of constituent power substantially refined the theoretical functions that it had performed in the American Revolution. In this context too, however, the same ambiguities are evident. On one hand, the principle of constituent power played a vital internal role in elevating the autonomy of state institutions in post-1789 France, and, later, in other post-revolutionary European societies. Throughout Europe, notably, previous state-building processes had been brought to crisis by the residual privatism of society under late feudalism or ‘absolutism’. In most pre-1789 societies, the dynamics of political abstraction and institution building were widely undermined by the fact that powerful social agents were able to resist inclusion in state power, and they exploited status and privilege to influence state actions and to preserve external private interests against uniform use of state authority. This imprinted a persistent patchwork structure on society as a whole, which obstructed the abstraction of the political system as an effective and autonomous set of actors.Footnote 29 However, the principle of constituent power gradually evolved as a solution for problems induced by thwarted abstraction in the political system, and it constructed a powerful internal principle to authorize the uniform and inclusive use of political power across all society. As in America, the fact that after 1789 the French state described itself as formed by constituent power allowed the state to attach its legitimacy to the idea that those subject to power were also the factual authors of power (that the power conserved in the state was in fact the power of all persons in society). Through this self-reference, the state condensed itself as a centre of general authority, and it assumed a societal position from which it could more easily extend its power across a widening, and functionally pluralistic, society. This formula meant that the French state could reduce variations in the exercise of power across society, it eliminated collective and private privileges which had traditionally dragged against the formation of a sharply differentiated political system, able to lay claim to politically monopolistic status, and it reduced its need for support from private actors and interests located outside the political system. Most vitally, this formula meant that, in applying power to those to whom (purportedly) it belonged (who acted as its authors), the state could easily validate and internally reproduce its power in many spatially and temporally differentiated settings: it meant that, factually, the state possessed more power. The vocabulary of constitutionalism ultimately became a general device for promoting the abstraction of state power across most European societies.
In this setting too, however, the extent to which constituent power formed a real external presence shaping the construction of political institutions is again debatable. In revolutionary France, in fact, the concept of constituent power was specifically proposed as a theoretical norm whose purpose was to ensure that a state could be designed which could claim to draw authority from the people, but in which the people as factually existing external actors specifically did not play an organized volitional role in founding the political system. The notion of constituent power that came to maturity in France in and after 1789 resided in the principle that the normative basis of the political system needed to be founded, not in the external factual will of the people, but in a complex of norms by means of which the political system excluded the people as a concrete aggregate of social agents. That is to say, the doctrine of constituent power, formalized by Sieyès in early revolutionary France, indicated, first, that constituent power should be expressed by a small number of political protagonists, and it should provide simple founding premises for the use of public authority, able to harden the political system against formative influences which it could not internally control. Once declared by its representatives, then, the will of constituent power fell fully silent, and the people (nation) were conclusively expelled from further exercise of power.Footnote 30 The first invocation of popular sovereignty expressed through constituent power thus merely projected a counterfactual and strategically paradoxical image of external legitimacy. In this concept, the state accounted for itself as normatively willed by the people. Yet it used this founding principle of inclusion to exclude the people as a factual body of agents. In its classical conception, constituent power formalized the paradox that it allowed the state to draw legitimacy from an external source (the people or nation).Footnote 31 But in so doing it enabled the state endlessly to police and prefabricate the source of its legitimacy (the people or nation), and in fact internally to project this construct as a basis for controlled simplification of its inner functions.
At the beginning of modern socio-political order, to conclude, the claim that state institutions were authorized through constituent power was presented as a symbolic caesura with pre-existing patterns of public coercion. In many respects, the concept of constituent power did indeed describe a great division between modern and early modern political order. Its status for the formation of the political system as an autonomous and inclusionary actor (i.e., a state), able to use its power in positive and reproducibly cohesive fashion, was indispensable. Beneath its symbolic implications, however, the idea of constituent power did not correspond to a reality of external political foundation. This concept expressed a reality, primarily, for and within the political system itself, in which it acted as a device for the projective simplification and the extended inclusionary reproduction of society’s political functions. Although proposed as a boundary concept for the political system, in fact, the primary practical role of this concept was, specifically, not to bind the political system to an external normative will, but to increase the inner consistency of the political system and to reduce its reliance on external actors. The defining image of legitimization ab extra implicit in constituent power formed, in extreme paradoxicality, the premise for the emergence of the modern political system as a highly internalistic and differentiated functional realm. The most important consequence of this concept was that it elevated the volume of power held in the state: it accomplished this precisely because it allowed the state freely to produce and reconstruct its legitimacy, without reference to external actors.
The projection of constituent power: The people as rights holders
At a secondary level, the internalistic, self-projective dimension of the concept of constituent power becomes apparent if the inner legal fabric of constituent power is subject to historical-sociological scrutiny. Under such interrogation, again, it becomes clear that the concept of constituent power did not, contrary to its typical theoretical articulation, generate legitimacy for the political system through any literal external or pre-juridical act. On the contrary, constituent power was always flanked and pre-defined by secondary legitimating concepts, which legally mitigated the founding spontaneity of such power, and the distinction between constituent and constituted power was never as precise as implied in theoretical inquiry. In particular, the limiting and pre-formation of constituent power was visible in the status of rights in early constitutions. If early ideas of constitutional legitimacy had their first founding dimension in constituent power, their second founding dimension, closely and integrally correlated with the first, was in rights. This dimension of constitutional legitimacy expressed itself in a dialectical relation to the principle of constituent power. Most importantly, rights constructed constituent power as an internal element of the political apparatus, and rights acted deeply to accentuate the general status of constituent power as an adaptive projective reality within the political system.
On one hand, in the period prior to the founding of the first revolutionary constitutions, rights had already begun to pre-define the objectives of actors laying claim to constituent authority.Footnote 32 Although rights are typically seen as elements of constituted power, placed in the custody of constituted judicial actors, constituent power was always, before its specific exercise, suffused with rights. The exercise of constituent power was always reliant on an inner juridical reference to rights, and the force of constituent power was itself always part of a legally pre-constituted normative structure.
To exemplify this, for instance, in revolutionary America the initial impulse towards the assertion of constituent power was shaped by a demand for subjective rights against the British parliament. The growth of constituent power drew its force from the argument that, in cases where imperial statutes were perceived as repugnant to an inherited common-law ideal of constitutional inviolability, rights could be invoked to strike down legislation, and, effectively, to constitute new laws (Morris Reference Morgan1940: 431; Bilder Reference Bilder2008).Footnote 33 In fact, the elementary space of constituent power, which evolved as the American colonies split apart from Britain, was opened by juridical actors insisting on rights, defined in the context of an implicit colonial constitution. This is illustrated by the fact that the widespread protests against the Stamp Act and other coercive statutes were expressed, sometimes through courts of law, as a demand for rights (Surrency Reference Stein1964: 128; Williams Reference Walker, de Búrca and Weiler1941: 124–7). Subsequently, colonial assemblies first arrogated to themselves the – allegedly exceptionalist or alegal – power to construct new founding norms for their acts of legislation precisely because they could claim entitlement through historically honoured constitutional rights (Adams Reference Adams2001: 3). In revolutionary France, similarly, the impulse towards the assertion of constituent power was shaped by a widespread demand for equal juridical entitlements, abrogating the personalized and status-defined rights structure of the ancien régime. Indeed, although rights had less formative importance in revolutionary France than in America, the idea of shared juridical rights deeply shaped the assault on singular legal privilege, which first gave rise to the concept of republican sovereignty as a mode of collective agency.Footnote 34 The formation of revolutionary power in 1789 was unthinkable outside the claim to rights, and the idea of constituent power as belonging to the nation in the form of a collective singular actor resulted immediately from the rejection of the variegated, corporate rights structure of early modern European society.Footnote 35
On the other hand, in these revolutionary settings rights did more than simply provide prior stimulus for the exercise of constituent power. In addition, rights began to act as institutes that predetermined and curtailed acts of constituent power, and they placed strict limits both on the procedures for the activation of constituent power and the selection of those persons entitled to assert it. In revolutionary America, bills of rights were sometimes proclaimed before state constitutions were drafted, such that the content of the leading constitutions was to some degree preordained (i.e., pre-constituted) by rights.Footnote 36 In America, further, the review of laws by judiciaries applying rights was established and practised by supreme courts in some states before 1787. However controversial this has become through subsequent developments, the principle that some norms were withdrawn from the purview of constituent power, and that mandates obtained through ‘popular excess’ could be restricted a priori, was clearly acknowledged before the Federal Convention was convoked.Footnote 37 After the founding of the new Republic, then, this tendency became yet more pronounced. Following the passing of the Judiciary Act in 1789, the introduction of the Bill of Rights in 1791, and the subsequent controversy over judicial competence in 1803, rights were increasingly used to exclude the constituent will of the people from the organization of state power. By 1791, in fact, rights were implemented at once to prevent the dramatic re-articulation of constituent power, and to mollify conflicts likely to provoke a re-examination of the constitution.Footnote 38 Most importantly, though, the fact that the rights-based constitution was progressively placed, to some degree at least, in the custody of the courts acted, albeit dialectically, to absorb, in simplified form, an image of constituent power in the legislative process, so that the political system could claim authority from constituent power while (in the same act) reducing its sensitivity towards the people as a factually existing, external force. The fact that the Federal Constitution incorporated a strong judiciary able to subject laws to second-order review in light of rights meant that a constructed picture of constituent power was enshrined at the centre of the political system: constituent power was transformed into a stable higher law, in light of which subsidiary laws could be internally scrutinized and authorized without reference to the factual persons to whom laws were applied.Footnote 39 One result of this was that courts were able to position themselves within the state in a location between constituted and constituent power, and the state as a whole could mine from resources of constituent power conserved in the judiciary.Footnote 40 A further result was that, in certain cases, legislators were able to reach beyond the externally existing electoral people demanding particular laws, and to authorize their laws by claiming to extract legitimacy from the original constituent power itself, stored in the normative guardianship of the courts.Footnote 41 Rights, in short, implanted a static construction of constituent power inside the emerging American political system. This was then ceaselessly invoked to legitimize particular acts of law. In revolutionary France, in partial contrast, the final distinction between constituent and constituted power was not strictly established until after 1795. Even after 1791, parliamentary sittings could not easily be divided from constituent assemblies (see Sieyès Reference Schwöbel1796: 97; Lafayette Reference Laboulaye1839: 50). Moreover, the revolution as a whole was shaped by a deep hostility to independent judicial actors, and the revolutionary constitutions clearly constrained the ability of the judiciary to check legislative power.Footnote 42 For these reasons, the restriction of constituent power by constituted actors was notably weaker than in America. Despite this, rights retained the capacity to shape acts of constituent power in parliamentary sessions. It was only in the highly exceptionalist period of intensified Jacobin rule that rights were not expressly acknowledged as prior checks on the will of the people.
On these grounds, the first wave of modern constitutional formation was deeply marked both by the fact that rights prefigured constituent power, and that rights subsequently internalized a model of constituent power within the political system, or even approached an ongoing surrogation of the norm-giving functions allotted to constituent power. From the beginning, rights imposed a juridical structure on constituent power, and they ensured that constituent power impacted on laws in a form that was strictly filtered and systemically pre-selected. In each respect, the relation between rights and constituent power meant that, although defined as the external source of the state’s legitimacy, constituent power was immediately translated into an internal organizational formula for the political system, and the actual externality of this source remained a projective fiction of the state’s inclusionary self-construction.
Most significantly, this surrogation of constituent power by rights can be analysed as a vital element in the adaptive societal functions of constitutionalism discussed above. The general functions of constitutionalism in promoting the abstraction of a positive domain of state power depended, most centrally, on the inner dialectical relation between rights and constituent power. As discussed, the concept of constituent power on its own was of key importance in promoting the abstractive consolidation of the modern political system. However, it was the dialectical configuration of constituent power and rights in early constitutionalism that played the most far-reaching role in the formation of the political system as a separate societal domain, in which political power could be applied across society in positive and autonomous inclusivity.
The functionally abstractive benefits arising from the relation between rights and constituent power can be identified in several ways. First, as discussed, the fact that the political system drew legitimacy from constituent power in a form pre-constructed through rights meant that the political system could easily project an image of the people or nation from which it derived its power, and it could simplify its circulation of power through a widening society by imagining the recipients of its power, in the form of rights holders, as implicitly recognized in the internalistic structure of power itself. The idea of constituent power as representing a nation of rights holders instilled a simple internal formula within the political system, enabling it to transmit power across society to actors who could be incorporated within the political system in an easily formalized and extensibly reproducible legal structure. This greatly alleviated the legitimization and the inclusive societal circulation of political power. Above all, this meant that political power could be used in a highly simplified and recursive fashion across many different societal contexts, and it enabled the political system to legislate, in counterfactual internal consistency, in even the most unsettled and unstructured environments. Second, the relation of constituent power and rights meant that the quantity of activities throughout society which needed to be constructed as specifically relevant for the state was restricted. Many social exchanges were marked out as politically irrelevant by their attachment to rights. That is to say, activities covered, for instance, by rights of economic freedom, rights of free speech, rights of autonomous scientific endeavour, rights of aesthetic self-expression, rights of free worship, etc, were removed from the intense cycles of politicization around the emergent political system, and the actions of persons in pursuit of such rights were not incessantly incorporated in the activities of the state.Footnote 43 This meant that the state attached its legitimacy to a rather limited, or at least specified, set of objectives, and – crucially – in declaring itself as inclusively legitimized by a constituent power the state was able, paradoxically, to curtail the volume of society’s exchanges and conflicts needing to be directly legitimized by this power. As a result of this, nascent modern states were able to define themselves as relatively indifferent to controversy over specifically private objects and interactions, and they moved private conflicts away from the centre of state power. This brought the benefit that state institutions could avoid destabilization through private conflicts (especially over religion). This also brought the benefit that private actors, or actors asserting private rights, lost the capacity to infiltrate state power and to render state power porous to private interests, which had debilitated statehood in the course of its pre-revolutionary or pre-constitutional formation.
The concept of constituent power, in sum, was of great significance for the historical consolidation of the political system as an autonomous aggregate of actors in a differentiated and complex societal landscape. Although projected as an extracted, external source of legitimacy for the political system, this concept assumed its primary reality within the political system. As an inner projection of the political system, it enabled the political system to articulate an internalistic formula for its authority, adaptively to configure itself in relation to changing societal needs for political power, and consistently to irrigate political power through society to address the increasingly contingent objects for legislation in a differentiated society. In this respect, vitally, this concept diminished the external dependence of the political system, and it eradicated the system’s reliance on external actors and interests. Most importantly, this systemically adaptive function of constituent power depended on rights. Rights are typically viewed as elements of constituted power, placing checks on the re-activation of constituent authority or protecting constituted power from non-mandated alteration. Indeed, rights and constituent power are often allowed to appear as antinomies.Footnote 44 If approached in a functionalist perspective, however, constituent power and rights always acted as inextricably linked dimensions of classical constitutionalism: rights meant that constituent power could be fully internalized in the political system, and they enabled the political system to exploit such power as an element of its inner abstraction. Once centred on rights-determined reserves of constituent power, notably, the political system, operating within an increasingly pluralistic and differentiated societal structure, was able internalistically to generate legitimacy for itself, and even to securitize its use of power against high levels of external variation and contingency. This was of the most vital importance in early constitutional settings, in which states, situated in diffuse and often unresponsive environments, were largely founded ex nihilo and, accordingly, were marked by low inner unity, depleted reserves of legitimacy and weak capacities for presupposing external support. The constitutional configuration of external actors (constituent power) as implicitly integrated within the political system through rights created an internal mechanism in the political system by means of which it was able to adjust to its own precarious nature by storing and mobilizing an internally insulated, withdrawn and projective account of its authority. Above all, the constitutional formula of rights-mediated constituent power initially evolved as functional projection in the political system, which compensated internally for the fact that the political system, in its rising abstraction, was required to produce and authorize its power in internal, self-sufficient fashion. The projected externality of constituent power was the deepest – yet most paradoxical – precondition for the emergence of the modern political system as a positive and autonomous societal domain. The projected externality of this power, however, always obscured the fact that the political system possessed no external legitimacy, and it was obliged to create legitimacy within itself in order to sustain its extensible functions across society. The projected externality of constituent power only obtained reality as an inner legitimating dimension of the political system, and it specifically reduced the reliance of the political system on external actors, agreements, and interests.
Constituent power and rights in the contemporary constitutional form
This functionalist reconstruction of classical constitutionalism (of constitutions giving typical expression to theories of national self-legislation) of necessity promotes an altered account of the status of constituent power and its legitimating functions in contemporary society. As outlined earlier, it is widely accepted that, with certain salient Latin American exceptions (see Cameron and Sharpe Reference Cameron, Sharpe, Cameron and Herschberg2010), traditional features of constituent power are diminished in contemporary global society.Footnote 45 As discussed, this is linked to the role of courts, and the assertion of constituent power as a primary source of legitimacy is curtailed by the growing influence of transnationally hyper-constitutionalized rights, placed in the safekeeping of courts. Indeed, it is widely observed that present society is marked by the emergence of a new type of democracy, characterizable as judicial democracy or judicial constitutionalism, which breaks radically with classical democratic norms.Footnote 46 This is sustained by a post- or pluri-constituent constitutional order, specifically reflecting the decentred conditions of ultra-modern societal structure.
If assessed against the functional and methodological background proposed above, however, a somewhat different evaluation of the judicial shift in constitutional emphasis can be proposed. On this basis, it is arguable that the diagnosis of contemporary democracy as marked by a deep rupture with classical patterns of constitutionalism is misguidedly literalistic, and it badly conflates facts and concepts. This diagnosis accepts at face value the systemically projected principles of constitutional theory, it fails to appreciate the subliminal functional aspects of constitutional norms, and, above all, it clings persistently to the postulated externality of constituent power. Contra such accounts, if a more functionally attuned analysis of constitutions is pursued, it appears that the model of constitutionalism emerging in contemporary society reflects a direct, albeit somewhat submerged, continuum with more typical constitutional systems of national states. Indeed, an approach founded in the functionalist construction of classical constitutionalism proposed above might even suggest that the functions of classical constitutions reach a new level of expression in contemporary constitutional forms.
Underlying the apparent changes in the dominant form of constitutional democracy in contemporary society, specifically, we can observe the emergence of a constitutional condition in which the original subsurface dialectic between rights and constituent power is in the process of re-articulating itself, and in which the original inner-systemic functions of rights are expressed with increased potency. In general terms, the fact that the pluralistic design of contemporary constitutions gives emphasis to powerful judicial actors, usually producing and applying normative principles (rights) at a high level of international uniformity, replicates the original adaptive functions of constitutionalism. The rights-based judicial bias of the present transnational constitution generates a normative order that simplifies the rapid reproduction and autonomous societal extension of political power, and allows institutions utilizing political power to respond in flexible, and internally authorized, manner to highly complex external exigencies. More notably, however, the emergent transnational constitution reconstructs the rights-based mediation of constituent power in classical constitutionalism, and it acts, like classical constitutions, to form the political system as a systemically insulated set of institutions, able to rely on and consistently to reproduce highly spontaneous stores of legitimacy. In the transnational constitution, therefore, the original nexus between rights and constituent power is reconfigured as a principle that continues to support the social differentiation and transfusion of political power. In particular, this nexus underpins the evolution of a constitution which, in a number of ways, enables the contemporary political system distinctively to adapt to the multi-structural, precarious environments of transnational society, and to perpetuate its primary functions within this society.
To illustrate this point, first, the growing formation of a judicialized constitutional order, centred on a strongly articulated rights dimension, means that in contemporary society a political system is able to evolve, through which political power can be autonomously distilled and consistently reproduced across wide, and often geographically and culturally unconnected social spaces. The fact that the constitutionality of contemporary society is centred around courts applying uniform rights norms means that, even in its intense complexity and extensibility, global society can preserve a distinct political domain, able to distribute power across even the most insecurely integrated social environments. In this respect, in particular, the contemporary political system persistently absorbs rights as a constitutional formula through which it instils within itself a surrogate image of constituent power: the fact that in global society power is commonly proportioned to its recipients as rights holders means, even in deeply disaggregated horizons, that the political system retains an account of its constituent origin, and it can articulate its power as authorized by a normative source which is always internal to its legislative functions. This expands the abstracted functional reach of the political system, and it means that power can be mobilized in a manner which is simultaneously both internally stable and consistent, yet also flexibly reproducible across multiple societal settings. As rights acted at the origins of constitutional doctrine to shape the modern political system as an aggregate of institutions able to apply power in a condition of autonomous consistency and inclusivity across widening national terrains, rights now continue this process in transnational society.Footnote 47 The rights-based judicial form of the emergent global constitution creates a foundation of autonomy for a transnational political system, in which responsibility for the basic functions of society’s political domain – that is, collective normative inclusion, reproduction and transmission of power – is transferred from single states to an overarching political system. At the centre of this extended political domain, formed by a judicial constitution, is an intensification of the function of rights as institutions that internalize constituent power as a projective aspect of the political system.
Second, the fact that courts use rights jurisprudence to underpin contemporary constitutional polities promotes the formation of a political system which is able, without constant mustering of factual support, to include new exchanges and objects at highly precarious stages of emergence. That is, the jurisprudence of rights inscribes within the political system a principle through which it is able easily and from within itself to reproduce and justify norms to address even the most uncertain matters for legislation in consistent and self-contained manner. This means, notably, that the rights-based constitutionalism of contemporary society facilitates the production of laws to satisfy the hypertrophic demands for legislation generated within the increasingly decentred society of the international world. The stabilization of political order, both nationally and internationally, around the focal reference to rights represents an adaptive mechanism through which societies can spontaneously adjust to rising needs for inclusionary legislation. Rights jurisprudence allows the political system internally to compensate for the fact that society requires a mass of legislative acts which, in many cases, cannot remotely be covered by shows of external public assent, and it means that the political system can generate laws in spontaneous fashion without losing normative/inclusionary consistency. In this respect, too, rights extend their original functions in heightening the reproducibility and generalizability of political power, and they propel a cohesive expansion of the political system from the national to the transnational arena. In transnational society, rights retain their original defining function that they construct, within the political system, an internal projection of external support for laws enacted by the political system. Rights instil within the political system an image of an external normative source, which the political system then invokes to sustain even the most variable acts of legislation. This means that even the most diffuse societal exchanges, interactions and terrains can be included in the functions of the political system in reasonably formalized and residually legitimized fashion. It has tellingly been observed that rights promote a condition of virtual political inclusion in global society: that, through reference to rights, social agents are integrated in the political system in often highly fragmented, partial and functionally specific fashion (Jacobson and Ruffer Reference Hulsebosch2003: 86). The virtuality of this inclusion, however, is, not a contradiction, but an extension, of the original inclusionary force of constitutions.
Third, the high prominence of rights in contemporary constitutionalism means that a political system can develop in which many institutions, positioned at different levels in a transnational political structure, are able to assume legitimate entitlement to use power. In referring to rights, different elements in the transnational political system are able to account for themselves as underwritten and authorized by a singular normative source, and so to imagine themselves as founded in and legitimized by a common constituent power. This instils a counterfactual normative density and integrity in the transnational political system, and it means that internally legitimated reserves of power can be allotted, often for short periods of time, to an array of different organizations (that is, in addition to national and transnational legislators, NGOs, private organizations, and international regulators).Footnote 48 The reference to rights thus instils flexibility and extensibility within the political system, and it means that the political system can react to even the most contingent demands for legislation without renouncing inner cohesion. However, this inner self-reference also means that disparate and spontaneous powers of legislation can be imputed to actors covered and internally legitimated by coherent normative principles, so that the political system preserves its identity as a distinct formative domain and its overall cohesion is not dissolved through the widening of the sphere of legislative agency. Both these principles are of vital importance for the construction of an emergent transnational political system, in which institutions are bound together across national divides, state institutions typically fragment along functional boundaries, and, of necessity, a diffuse set of actors, often without clear external/democratic mandate, need to be included in the political system to perform functions of legislation.
In each respect, in sum, the judicial dimension assuming high status in contemporary constitutionalism evolves as a mechanism for the reliable transmission of power, which is specific to highly contingent and internationally interconnected societies. This judicial-constitutional focus makes available a structure for the circulation of power which enables power to be applied in reasonable consistency across multi-centric geographical territories. Through the growing prominence of transnational rights, national political systems become, albeit with strong local variations and distinctions, inner elements of a post-national constitutional order, in which decision-making functions are constructed, however precariously, across diffusely associated social environments. Rights, in fact, sustain the persistence of a political system as a moderately coherent normative domain in society, and rights contribute in vital fashion to the ongoing reproduction of political functions at a transnational level. Above all, the high-line status of rights jurisprudence in contemporary constitutionalism means that the transnational political system is – across regional and cultural fissures – in a position internalistically to insulate its use of power against extreme experiences of external contingency, and to legislate at an adequate level of consistency despite low levels of external support and weak immediately manifest legitimacy. Rights retain the enduring function that they enable the political system to produce an authorization for its power by integrating a constructed idea of constituent power within its own structure. This principle allows political power to be authorized at a high level of internal/projective control, in specific absence of a factually assembled authorizing or constituent will. Indeed, the basic internal functions of classical constitutionalism culminate in the distinctive form of contemporary constitutionalism. In the contemporary transnational constitution, the original function of rights in moderating constituent power and constructing an internalistic, abstractive principle of constituent legitimacy for the political system is complete. The contemporary political system is defined by the fact that, lacking the ability to mobilize consistent external support, it recursively and internalistically refers to rights to support the societal transfusion of power. Yet this fact does not involve a negation of constituent power. On the contrary, it intensifies the primary and defining capacity of the modern political system for internalizing constituent power by means of a rights-based constitution.
Conclusion: Rights, constitutions and the form of political power
As discussed, it is arguable that constitutions first emerged in European societies as adaptive and securitizing structures, through which political power could be abstracted and condensed within the political system. This permitted the differentiation of a political system that was incrementally solidified against the privatistic/centrifugal forces of later feudal society, focused on a delineated set of political objectives, and able to transmit and internally to legitimate power across complex and unstructured environments. In this regard, classical constitutionalism dramatically accelerated an already existing trajectory of state construction, and the idea of constituent power provided a crucial register for the intensified elaboration of political power as a differentiated, inclusionary and internally accountable social medium. In this process, most importantly, constituent power fused with rights to design the defining paradigm of modern politics. This formula made it possible for the political system internally to authorize its own power, to hold its power at a high level of inclusionary abstraction, yet also, internalistically, to limit itself against, and so specifically to exclude, the persons from whom it purported to derive authority. By accounting for itself as authorized by constituent power and applying power as proportioned to rights, the modern political system separated itself from the external/personalistic pre-state political apparatus of feudalism, and it became able, as a state, to form a distinct political domain, in which power was autonomously transmitted in generalizable manner across temporally and geographically extensive societies.
Here it is worth reiterating the claim made above that classical constitutionalism had the particular function that it allowed the political system to stabilize itself against societally precarious backgrounds: that is, backgrounds marked by functional pluralism, extreme contingency, low manifest legitimacy, and diffuse support for new laws. As considered, the classical formalization of a strict constitutional formula (rights and constituent power) within the political system provided from the outset a construct within the political system which permitted it to extract itself from reliance on other societal actors, to compensate for its precarious legitimacy, and to adjust to uncertain or at least highly variable external support for the use of power. At the same time, the classical constitutional formula (rights and constituent power) helped the political system to adapt both to an acentricity in its own functional structure and to an acentricity in the terrains to which it applied power. In each respect, the constitutional formula (rights and constituent power) played a vital role in the construction of the political system, in the form of the state, as a set of institutions able to act in abstracted autonomy in the context of an increasingly differentiated and functionally specialized (that is, early national) society.
On this basis, the tentative sociological conclusion might be proposed that one reason for the present rise in judicial constitutionalism is that the original societal conjunctures against which the classical constitutional formula (rights and constituent power) provided systemic insulation have been intensified in contemporary society. Indeed, the political features of national societies in the transition from early to high modernity (low social and institutional centration, high contingency, weakly constructed external legitimacy, rapidly escalating demands for legislation) have become yet more fully articulated features of transnational societies in the setting of late modernity. The political setting of late modernity in fact has deep similarities with the transition from feudal to national societies, in which political power was detached from the traditional external structures of feudal societal order (i.e., from private milieux, fiefs, corporations and offices granted as privileges), and transmitted at an unprecedented degree of systemic abstraction across society. Late modernity is a setting, most importantly, in which power is required as a facility extending beyond the structural boundaries that defined classical modern (national) politics, and in which – accordingly – the objective presumption of external (national) constituent power (always inherently counterfactual) is approaching final redundancy. From a macro-sociological standpoint, therefore, the contemporary political system is required to construct a societal domain capable of producing and legitimizing power in face of rapidly rising contingency, and it is obliged conclusively to dispense with reliance on external sources of legitimacy. In this setting, judicial constructions of legitimacy provide a formula that enables the political system, as ever, to promote substantially intensified patterns of internal legitimacy, and to reproduce political power, however improbably, exclusively through reference to its own inner structures. Judicial constitutionalism, in other words, is the inner adaptive form of the political system in late modern society.
This sociological approach to judicial constitutionalism indicates that the origins of transnational constitutionalism were already evident in national constitutions, and the expansive, internalistic generalization of power promoted by the national constitutional formula is now re-enacted, at a higher level of abstraction, within the transnational constitutional order. As discussed, the division between classical and contemporary constitutionalism is usually associated with the loss of external legitimacy, and with the increasing production of legitimacy as an inner-juridical resource. On the account offered here, however, the externality of constituent power was always an adaptive projection of the political system. Legitimacy was always produced by the law itself: it was produced, primarily, by the surrogation of constituent power by rights. If the concepts of constitutionalism first formed a dialectical underpinning for the internal generalization of political power in the form of the national state, these concepts now also underpin the generalizibility of political power in the emergent post-state transnational order, in which the political system expands finally beyond its early modern homology with statehood. The internalistic order of the transnational constitution arises directly from the internalistic order of the national constitution. This role of constitutionalism becomes explicable if we abandon literalistic understandings of the relation between political concepts and the political system: if we see political concepts, not as normative constructions, but as reflexive dimensions within, the political system. From such a perspective, the transnational constitution grows directly from the national constitution, and it avails itself immediately, although dialectically, of functional constructs expressed in national orders of public law.
