Of late, I have been working on a deconstruction of the people variously through Derrida and Ranciere. But it seems to me that one of the more important theorists of constituent power is Schmitt (along with Sieyes, Negri, Benjamin and Bataille). So, with the spectre of resistance once more haunting Europe, as the first reading of the break I want to suggest this brief page from the recently translated Constitutional Theory.
The people as bearer of the constitution-making (constituent) power are not a stable, organised organ. The people in this capacity would lose their nature, when they direct themselves to the daily, normal functioning and the regular completion of official business. According to their nature, the people are not a magistrate, and even in a democracy they are never the responsible officials. In a democracy, on the other hand, the people must be capable of making political decisions and acting politically. Even if they have a determinative will only in less definitive moments and express themselves recognizably, they are nevertheless capable of and in a position for such willing and are able to say yes or no to the fundamental questions of their political existence. The strength as well as the weakness of the people lies in the fact that they are not an organ that is supplied with defined competencies and that completes official business in a regulated process. As long as a people have the will to political existence, the people are superior to every formation and normative framework. As an entity that is not organized, they also cannot be dissolved.
So long as they exist at all and intend to endure, their life force and energy is inexhaustible and always capable of finding new forms of political existence. The weakness is that the people should decide on the basic questions of their political form and their organization without themselves being formed and organized. This means their expressions of will are easily mistaken, misinterpreted, or falsified. It is part of the directness of this people’s will that it can be expressed independently of every prescribed procedure and every prescribed process. In the political praxis of most countries, the will of the people is determined in a process of secret individual votes or secret elections. But it would be an error, an undemocratic one in particular, to consider these methods of the nineteenth century without further explanation for an absolute and conclusive norm of democracy. The will of the people to provide themselves a constitution can only be made evident through the act itself and not through observation of a normatively regulated process. Self-evidently, it can also not be judged by prior constitutional laws or those that were valid until then.
*This is taken from Carl Schmitt’s Constitutional Theory (p131)