In its traditional conception, the constituent is a power that constitutes and reconstitutes the state. This is a dangerous, though important salve for the problem of corruption in the body politic. The people or their representatives may overthrow the constituted order when it loses its authority, when the monarch or polyarch becomes tryannous. However, our modern debate on constituent power can be seen as an echo of the very old theological debate about whether or when a subject may revolt — think of the confusion in Aquinas as to whether the subject may follow the natural law against the King, or Agunstine’s lex iniustia non est lex.
One of the crucial moments in the secularisation of this debate occurs in the 16th century when the Hugenot constitutionalists — called the monarchomachs by way of derision — seek to justify their resistance to the absolutist legitimation of the monarch in Catherine’s France. Their problem was ultimately that if they were to resist the monarch, they had to gain the support of the disenchanted Catholic majority who equally objected to the absolutist powers that the monarchy had developed, but lay on the other side of the sectarian divide. Constantly under threat of religious repression, the Hugenots developed a form of constitutionalism which legitimated revolution as a right rather than a religious duty. If it was a constitutionally mandated activity rather than a religiously structured duty then the Catholic/Protestant divide did not matter. Under certain conditions, the Monarchomachs argued, the lesser magistrates leading the people, were entitled by right to overthrow the king.
The monarchomachs moved beyond the traditional theological question by distinguishing between the foedicus which is the duty of all to uphold the laws of God, and the pactum — the agreement between the people and its monarch. Skinner says:
Beza declares ‘wherever law and equity [have] prevailed,’ no nation has ever ‘created nor accepted kings except upon definite conditions.’ It is this contention that leads the [Huguenots] to speak of a second and purely political contract [pactum], one which takes the form, in Beza’s words, of a ‘mutual oath between the king and the people’. (Skinner, The Foundations of Modern Political Thought, Vol. 2 (Cambridge University Press, Cambridge, 1978), p331.
Crucially, the people or nation pre-exists the pactum as it stems from the theologically determined order — the foedicus. In the pactum, the theological form of the foedicus is replicated while the grounds of the agreement are shifted from the transcendent to the immanent. The oath or contract lies between the (pre-constituted) people and the sovereign.
This shift operates strategically in two ways. Firstly, the divine order is the foundation of the pactum, but operates through a mirroring rather than a direct authorization. There would be no people capable of committing itself to such an oath without its prior constitution by the pact with God. This can be seen in Althusius’ later development in the Politica Methodice Digesta. There he described the theologico-political nature of the ideal organisation of the body politic. The people is gathered under ‘ephors’ or ‘lessor magistrates’, to whom it has ‘committed itself… for safety, and transferred all its actions to them, so that what the ephors do is understood to be the action of the entire people.’ When a ruler becomes a tyrant the ephors may lead the people in overthrow. A monarch or polyarch becomes a tyrant when ‘through avarice, pride or perfidy, cruelly overthrows and destroys the most important goods of the commonwealth, such as its peace, virtue, order, law and nobility’ (Althusius, p191) The resistance is a process
by which the ephors impede the tyranny of the supreme magistrate by word and deed. And when he is incurable, or the rights (jura) of the associated body cannot otherwise be kept sound, well protected, and in good condition, or the commonwealth free from evil, they depose him and cast him out of their midst. (Althusius, p193)
The people decide when a state of tyranny begins, and then elect an ephor to lead and represent their wishes. Althusius attempts to maintain the sense of right derived from the theological order, even while maintaining the difference of the pactum (the constitutional order) from the foedicus (the theological order). The two orders mirror each other, but do not fuse. The process of mirroring allows for the reflection of authority and majesty. The king is the head of the divine worldly order — as the absolutists would agree — but only in a two stage process of pactum and foedicus.
Crucially, this breach in the absolutist order of the divine right of kings places one figure at its heart: the tyrant. With the rupture between the pactum and the foedicus, it becomes possible to hold divine right, while rejecting the sovereign’s authority. The sovereign turned tyrant thus is the lynchpin of this constitutionalism. When the people revolts, it expreses its resistance through the ephor. Crucially, this means that it remains structured by the prior given order. It maintains the divinely sanctioned order, while refusing the authority of the monarch turned tyrant. Thus, the people attempts to uphold the pactum while all the time performing the foedicus. The tyrant thus becomes the liminal figure who precisely grants right (in the negative) to those who resist. He does this by excluding himself from the order of right. In the shift from king to tyrant, the sovereign becomes the interloper who must be expelled.
While the monarchomachs present a significant break — it is not the pact with God that is broken in tyranny, but the contract between people and sovereign — they retain the theological constitution of the people. The political contract is precisely an attempt to partially secularize the public right generated by the theological order, thereby removing the sectarian element. However, as Schmitt says ‘The people in Althusius already have a potestas constituta [not the potestas constituens]. The secularization of the concept of the constituting [constituent] power first emerges later’ (Constitutional Theory, p126).
In an intensification of the structure generated by the monarchomachs, Sieyes suggestes that there is a substance of the nation which is determined economically — the third estate. The third estate is the substance of the nation, all that is necessary is for it to become the formal nation — that is take the reigns of power. Crucially, because the system of the time maintained the third estate as the substance but not the form of the nation, he argued that it must be overturned. In particular, he highlighted the sovereign turned tyrant, who must be expelled from the body politic. The constituent power held by God in the monarchomachs is now held by the nation, precisely because Sieyes has secularized their sense of the nation by rendering it an economically determined entity rather than theologically generated.
Illan rua Wall is Associate Professor of Law, University of Warwick.