This is a course at the intersection of constitutional and political theory. Its central question concerns the conditions of legitimacy of constitutional democracy. We will ask the legitimacy question from a particular perspective – that of the (ir)relevance of the source and the original authorship of the legal and political order. Who makes the first rule, on the basis of what authorization, when and how?
We will explore some of the best-known theoretical attempts to conceptualize the constituent power, or – alternatively – to deny its relevance. We will first discuss the questions of identification, authorization, timing, and the ways of acting of the constituent power. Second, we will analyze radical democratic responses to the question of agency of the constituent power. These approaches (Sieyes, Schmitt) reject the constitutionalist idea that an established democratic regime can legitimately constrain the people as the original sovereign. Third, we will read theories (Arendt, Ackerman, Habermas, Kumm) that acknowledge dualism between ‘constitutional’ and ‘normal’ politics, while trying in different ways to show that this dualism does not lead to the legitimacy trap of the constituent power. Fourth, we will discuss arguments that the constituent power and legitimacy of constitution-making process are not relevant for the proper understanding and legitimacy of constitutional democracy (Kelsen, Michelman, Dworkin).