In much of the con­ven­tional ana­lysis, con­stitu­ent power is used to sig­nify an open­ing of con­sti­tu­tion­al­ism to its other. It is framed as an alter­ity that legit­im­ates and facil­it­ates the con­sti­tu­tion. As such, the con­stitu­ent moment has an intensely tem­poral qual­ity. It is either always-​already past or it is to come. Either way, its alter­ity to the con­sti­tuted order oper­ates as a legit­im­acy. It por­trays sov­er­eign power as spec­tac­u­larly at risk and vul­ner­able – the people may always come back, it claims. But on an every­day level, this vul­ner­ab­il­ity is enclosed by the intense secur­ity that the phys­ical force of the police and army bring. Con­stitu­ent power as alter­ity is thus a cap­tured and enclosed oth­er­ness that legit­im­ates the present state. Locke is the clas­sic state­ment of this, with his ren­der­ing of the right to revolu­tion. Always sus­pen­ded in the future, it remains a guar­an­tee against tyranny. The sov­er­eign will not become a tyr­ant, Locke says, as he stands in a pre­cari­ous pos­i­tion – fear­ful of the return of the people.

The rel­at­ively basic point of what I want to argue is that there is noth­ing neces­sar­ily crit­ical about under­lin­ing con­stitu­ent power, qua tem­por­al­ity, in con­sti­tu­tion­al­ism. Instead I would like to point to a cer­tain ges­ture of thought, what we might call in the most banal of terms – an open­ing and a clos­ing, or more philo­soph­ic­ally: enclos­ure and dis-​enclosure. The enclos­ure of con­stitu­ent power is per­formed by set­ting the con­sti­tuted order that fol­lows it as its neces­sary and def­in­ite form. Mar­tin Lough­lin demon­strates this clos­ure is the clearest of terms: He sug­gests a two­fold pro­cess, which occurs in one moment. The people is con­sti­tuted as a unity and then this unity enacts the con­sti­tu­tion. He uses Schmitt as a gen­eral frame­work, while repla­cing his sub­stan­tial­ist con­cep­tion of the people with Lindahl’s onto­logy of reflex­ive self­hood. Lough­lin says: ‘This col­lect­ive entity of the people ‘must rely on a past that never has been present and a future that will never become present, hence on a past and future that elude its con­trol.’’[1] With this tem­por­al­ity, the people becomes a shim­mer­ing unity which is then cap­able of con­sti­tut­ing and poli­cing the state. He explains:

Con­stitu­ent power and con­sti­tu­tional power exist in a dia­lect­ical rela­tion, oper­at­ing between staats­volk (the people as an act­ive polit­ical agency) and staats­ge­walt (the insti­tu­tional appar­atus of gov­ern­ment author­ity). Only in this dia­lect­ical form do they together con­sti­tute the state – what altern­at­ively might be called the pub­lic space.[2]

With this, Lough­lin has com­pleted his cap­tur­ing of the neg­at­iv­ity of the con­stitu­ent moment. Gone is the open sense of con­stitu­ent power as a cre­at­ive moment where the form of life is exper­i­mented with. Instead there is a neces­sary rela­tion to the state as a reg­u­lat­ive ideal. The rep­res­ent­at­ive appar­atus of the state con­sumes the dir­ect­ness of the con­stitu­ent moment, and folds it into the pre-​constituted pub­lic space.

But if Lough­lin closes con­stitu­ent power, what then is ‘open­ing’. I think Agam­ben read through the events in Tunisia provide us with one of the most inter­est­ing accounts of an open con­stitu­ent power, des­pite Agamben’s rejec­tion of the term. How­ever, before I turn to this, let me briefly set out Jean-​Luc Nancy’s idea of dis-​enclosure as some­thing of a cor­rect­ive to Agamben’s per­ceived pessimism.

In our meta­phys­ical con­cepts, of which sov­er­eignty is some­thing of an apo­gee, there is the cent­ral­ity of reason, of the logos. This is the enclos­ure neces­sary to secure the sov­er­eign as the highest of earthly beings. Schmitt’s fam­ous dictum pos­its that ‘in the begin­ning there was the fence’. This enclos­ure secures the ground in a meta­phys­ical sense, for the majesty of its ruler. Yet Nancy sug­gests that there is also that which reaches bey­ond that highest point, bey­ond the sov­er­eign even bey­ond the God that is the highest of things that is think­able. This is the idea of dis-​enclosure – a move­ment of thought bey­ond its limit. Nancy explains that

meta­phys­ics decon­structs itself con­stitutively, and, in decon­struct­ing itself, it dis-​encloses in itself the pres­ence and cer­tainty of the world foun­ded on reason. In itself, it deliv­ers forever and anew the… ‘bey­ond beings’: it fer­ments in itself the over­flow­ing of its rational ground.[3]

He tells us, that with logos comes the alo­gon. The alo­gon is the illo­gical, it is related to dis­order (arre­ton), to anim­al­ity, or that which is not to be spoken.

As such, the alo­gon can be under­stood as the extreme, excess­ive and neces­sary dimen­sion of the logos: from the moment we speak of ser­i­ous things (death, the world, being-​together, being-​oneself, the truth), it has never ser­i­ously been a ques­tion of any­thing other than this dimen­sion. It is the alo­gon that reason intro­duced with itself.[4]

Sov­er­eignty, then entails pre­cisely such a pos­sib­il­ity. My sus­pi­cion that decon­struc­tion must begin with con­cepts like author­ity, majesty and a caco­phony of other terms that scream of both enclos­ure and its excess. How­ever, for now let me merely trace the open­ing that occurs itself in con­stitu­ent power.

On the streets of Tunis, Sfax and a vari­ety of other cit­ies, for months ‘the people’ cried ‘dégage’ (clear out, get out). This was, first and fore­most, a simple refusal of the dis­tri­bu­tion of people and things – a refusal of the situ­ation as a whole. Cer­tainly, Ben Ali was the ini­tial tar­get, so too was the State’s coer­cive appar­atus, par­tic­u­larly the secret police. But equally, this refusal was aimed at the neo-​liberal global sys­tem that had fixed Tunisia as the work­house of Europe and space of pre­car­ity from which France could draw its under­class. My argu­ment is that this refusal is an act of dis­en­clos­ure. One which attempts to open a space of alter­ity, that is pre­cisely here in this world. It was a ges­ture of reach­ing bey­ond the highest man on earth – to think in excess of the sov­er­eign. But this is not the del­ic­ate philo­soph­ical thought of Nancy. Rather it is a demo­cratic dis­sensus where real demo­cracy is dis­closed in an act of dis-​enclosure. Ran­ci­ere says real demo­cracy is ‘where liberty and equal­ity would no longer be rep­res­en­ted in the insti­tu­tions of law and state, but embod­ied in the very forms of con­crete life and sens­ible exper­i­ence’.[5]

What is novel about Tunisia is the man­ner in which a cer­tain inop­er­ativ­ity is con­jured forth in those first moments from Decem­ber to Feb­ru­ary. In his writ­ing on the Tianan­men, Agam­ben under­lines the fleet­ing pres­ence of what he calls the com­ing com­munity. He sug­ges­ted that the demands of the protest­ors in Tianan­men were on one hand so gen­eral as to mean noth­ing and on the other too minor to trouble the Party. Instead he argues that they instan­ti­ated a ‘com­ing com­munity’, whose nov­elty will be ‘that it will no longer be a struggle for the con­quest or con­trol of the State, but a struggle between the State and the non-​State (human­ity)’.[6] Because this com­ing com­munity does not take power, and eschews rep­res­ent­at­ive forms, it keeps open its inop­er­ativ­ity and reaches towards a new potentiality.

Agam­ben explains that any claim of col­lect­ive iden­tity can be recog­nized, tol­er­ated and paci­fied. When a group con­sti­tutes itself around a polit­ical iden­tity, it becomes the site of polit­ical tri­an­gu­la­tion, nego­ti­ation and appro­pri­ation. Thus, rights-​talk, cit­izen­ship, polit­ical parties and any vari­ety of other polit­ical techne lead towards a cer­tain col­lect­ive oper­ativ­ity. ‘What the State can­not tol­er­ate in any way… is that the sin­gu­lar­it­ies form a com­munity without affirm­ing an iden­tity, that humans co-​belong without any rep­res­ent­able con­di­tion of belong­ing’.[7] Tianan­men remains a good example: the Chinese state gen­er­ates a mul­ti­pli­city of hom­ines sacri, who present them­selves without any medi­at­ing con­di­tion of belong­ing together. Instead the ‘com­munity’ that emerges is inop­er­at­ive, in the sense that there is no bound­ary con­di­tion by which any­one could say who would and would not belong to it. This is not an enclosed people. It does not become a new soci­ety against the state – a new social­ism. Rather it forms the ‘new, non-​subjective, and socially incon­sist­ent prot­ag­on­ist of the com­ing polit­ics.’[8] This inop­er­at­ive people, is pre­cisely the one without any con­di­tion of being-​together, there is no sub­stance around which it can be enclosed. But this is not an imper­fect people, await­ing com­ple­tion by a con­sti­tuted order, but a people in excess of itself open­ing another world that is pre­cisely here in the everyday.

In Tunisia, we find this non-​State at work. Cer­tainly the protests of what has been called Kas­bah 1 and Kas­bah 2 – that is the Janu­ary over­throw of Ben Ali and the Feb­ru­ary col­lapse of the first pro­vi­sional gov­ern­ment – were revolts of refusal. The com­mon people on the streets pre­cisely do not insti­tute a new law, they do not take power, there is no author­it­at­ive spokes­man although many claim to be that voice. Rather they retain a cer­tain fidel­ity to the over­throw of Ben Ali. There is no polit­ical pro­gramme or party organ­isa­tion behind their pres­ence on the streets. Their inop­er­ativ­ity comes from their refusal of a given polit­ical pro­gramme and iden­tity, from their refusal to take power and from their multiplicity.

Yet how can we read this inop­er­ativ­ity? One source repor­ted the cur­rent polit­ical cli­mate. After explain­ing the situ­ation of the major parties, they say:

The other polit­ical parties will need the addi­tional time to recruit fol­low­ers from the major­ity of the country’s vot­ing pop­u­la­tion, who right now prefer pres­ence via protest and the free­dom to choose informal polit­ics and shun formal polit­ics. This is a space to be watched over the com­ing months and years in Tunisia, where the people seem to have inven­ted altern­at­ives to elec­tions in the form of dir­ect people’s power.[9]

When we hear that over half of the people remain ‘unde­cided’ in the polling fig­ures, we must stop and ask ourselves what exactly this unde­cided means – whether it should be read as a symp­tom of an apolit­ical mass or some­thing more import­ant although less recognisable.

Cru­cially, this inop­er­at­ive com­munity can­not be recog­nised by a State. The state has respon­ded with an unsur­pris­ing reg­u­lar­ity by typi­fy­ing this anti-​representational polit­ics as chaos and con­spir­acy. The cur­rent prime min­is­ter Beji Caid Essebsi recently appealed to ‘all polit­ical parties and cit­izens to defend the coun­try’[10] against an orches­trated pan to cre­ate chaos. These two specters of con­spir­acy and chaos are pro­jec­ted as the urgency to close any fur­ther demon­stra­tions. In a clas­sic biopol­it­ical move the con­sti­tuted order calls on its cit­izens to close the gap that they them­selves have opened. Aside from the fail­ure to recog­nize a dif­fer­ent inop­er­at­ive sub­ject emer­ging, Essebsi’s state­ment reveal pre­cisely the rep­res­ent­a­tional tech­no­lo­gies that will dis­cip­line this new sub­ject of polit­ics – the cit­izen and the polit­ical party. This is the paci­fic­a­tion of con­stitu­ent power through polit­ical and jur­idical rep­res­ent­a­tion that we find in most con­sti­tu­tion­al­ists, and that I under­lined at the begin­ning in Loughlin.

While the protests of Kas­bah 1 and 2 mani­fes­ted a cer­tain dis-​enclosure – refus­ing the sov­er­eign power and attempt­ing instead to live in the sus­pen­sion of con­sti­tuted order. The events of the last few months demon­strate pre­cisely the util­ity for con­sti­tu­tion­al­ism of tem­por­al­ity as a clos­ure. Instead of those early days where the struggle against the con­sti­tuted order allowed an a-​legal open­ing on the squares, the streets and in the homes. The cur­rent polit­ical frame­work is determ­ined by the ques­tion of the new con­sti­tu­tion. In par­tic­u­lar the focus has shif­ted onto the con­stitu­ent assembly, and the elec­tions that were sup­posed to occur in July and now in Octo­ber. The occur­rence of the elec­tions is taken by the com­ment­ariat, as the be-​all and end-​all of the Tunisian event. Yet it is pre­cisely this mech­an­ism that closes the inop­er­ativ­ity of the pre­vi­ous polit­ics. One is forced to say yes or no, to organ­ise into camps or parties, to pass motions and seek out sup­port and most import­antly to leave all your polit­ics in the hands of your rep­res­ent­at­ive or party. The con­stitu­ent assembly elec­tions provide pre­cisely the rep­res­ent­at­ive appar­atus that can close the con­stitu­ent moment, by includ­ing the people in a pre­con­sti­t­uted process.

In a sense this is the weight of the future press­ing down on the present, demand­ing all that they work against the chaos and con­spir­acy to provide a bet­ter future for their chil­dren. Trans­lated this also means that people should shut up about the elites entwine­ment with global cap­ital, should shut up about the present injustice and should con­sti­tute them­selves once more as good cit­izens of an intact state. This is time as a demand for determ­in­acy. It is con­stitu­ent power as an enclos­ure of present poten­ti­al­ity. Some­times, per­haps we might refuse tem­por­al­ity, in the name of open­ing the present.