Constitutional Power, Constitution’s Authority and New Beginnings

Abstract

In this essay I engage those theorists of radical democracy who employ Schmitt’s concept of constituent power in order to argue that constitutional democracy requires an extra-legal, directly democratic “beginning” if it is going to be legitimate. I argue that Schmitt’s conception is riddled with metaphysical and theological dualisms that tend to support a conception of the sovereignty of the state as standing above both the “people” and the legal system, and is thus not compatible with conceptions of radical democracy. The essay proposes a “monistic” or Spinozist approach to the concept of constituent power which offers better resources to understand the internal relationship between constitutionalism and revolutionary democratic politics. The essay defends its standpoint in relation to the ongoing debate on the constituent process in Chile.