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.’’ 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.
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.
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.
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’.
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)’. 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’. 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.’ 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.
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’ 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.
 Loughlin, Foundations, quoting Lindahl, p227
 Loughlin, foundations, p228
 Nancy, disenclosure, p7
 Nancy, Disenclosure, p8
 Ranciere, Hatred of Democracy p3
 Agamben, Coming community 85
 Agamben, Coming community, 86
 Agamben, Means without end: Notes on Politics, p89