Forthcoming in Richard Albert, Xenophon Contiades and Alkmini Fotiadou (eds), The Foundations and Traditions of Constitutional Amendment (Hart Publishing). Please don’t quote or cite without permission.

Constitutional Theory and Cognitive Estrangement: Beyond Revolutions, Amendments and Constitutional Moments

Zoran Oklopcic

Freedom is always coming in the hereafter. But you know what, though—‘the hereafter’ is a hustle. We want it now.*

Introduction: the person of ‘the people’ and a three-fold cognitive estrangement Constitutional theory is the home of two partially overlapping, occasionally mutually reinforcing, but nonetheless competing visions of peoplehood, both of which delineate the contours of our imagination of legitimate constitutional change. According to the first, ‘Sieyèsian’ vision, radical constitutional change is implicated in a well-known, (allegedly paradoxical) dynamic between the unconstrained pouvoir constituant of a sovereign people, and the constraining pouvoir constituée of a constitutional order, which gives ‘the people’ its political identity.1 Since it imagines ‘the people’ as a political body that can, at any point in time, rightfully rupture existing constitutional order and create a new one, ‘Sieyèsian’ view does not find it necessary to offer further portrayals of people’s personality traits.

While the ‘Sieyèsian’ vision doesn’t concern itself with ‘the people’’s character or temperament, the second, ‘Lockean’ vision portrays ‘the people’ as a fallible, but ultimately reasonable person. ‘The people’, memorably described by some theorists as Ulysses, binds itself to the mast of a constitution, in order to fend off the seductive call of populist Sirens.2 In order for such people to exercise its constituent power, liberal democrats first imagine it as slow to engage in radical political action, thoroughly exhausted with suffering grave oppression before it exercises its revolutionary constituent power. Such view of ‘the people’’s character gives rise to a revolution/amendment [R/A] binary: ‘the people’ either radically re-constitutes constitutional order as a result of oppression, or otherwise changes it through regular constitutional channels.

* Jesse Williams, BET Humanitarian Award acceptance speech (26 June 2016). I transcribed his 1 See generally, Martin Loughlin and Neil Walker, ‘Introduction’ in Martin Loughlin and Neil Walker (eds), Paradox of Constitutionalism: Constituent power and Constitutional Form (OUP 2007) 4. 2 Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press 1996).

Contemporary constitutional theorists have engaged the postulate of Lockean reasonable peoplehood in different ways. Contemporary radical democratic defenders of the Sieyesian view, such as Joel Colon-Rios, have rejected it, by defending the idea of ‘weak’ constitutionalism, which does away with procedural restrictions on the activation of ‘the people’’s pouvoir constituant.3 From within the liberal democratic camp, Jeremy Waldron has rejected the gesture of anthropomorphization, finding it unhelpful in defending an attractive account of liberal-democratic constitutional politics.4 In different ways, and for different reasons, both have undermined the R/A binary.

In this essay I also seek to problematize, and, ultimately, dissolve it. However, rather than recasting, or critiquing the R/A binary from the from the vantage point of radical democracy or political liberalism, my intervention starts off with a proposal not to simply embrace Weberian disenchantment [entzauberung] with the idea of ‘the people’, but to actively engage in, what theorists of science fiction call cognitive estrangement. 5 For Darko Suvin, a literary theorist who coined the term, ‘[a] representation which estranges is one which allows us to recognize its subject, but at the same time makes it seem un-familiar.’6 Simultaneously creative and cognitive, ‘the look of estrangement’, always must assume ‘the possibility of other strange, co-variant coordinate systems and semantic fields’.7

The concrete cognitive estrangement I propose in this essay is three-fold. Quite uncontroversially, I first propose that we estrange ourselves from ‘the people’’s collective personhood. By abandoning people’s personhood, we would likewise distance ourselves from the corresponding portrayals of what constitutes (un)desirable constitutional change, otherwise connected to the image of a reasonable popular sovereign. Unsurprisingly, this would immediately seem to push us in a Sieyèsian direction: on the one hand, without the image of a fallible but reasonable Ulysses, we would have no reason not to succumb to quotidian populist temptations. By the same token, we would we have no reason not to engage in premature radical constitutional overhauls, against undesirable, but not necessarily oppressive, constitutional regimes.

The second act of cognitive estrangement, however, equally goes against the idea of both Lockean and Sieyèsian peoplehood. Here I suggest we also estrange ourselves from the idea of a constitutional order, as the machine, temple, or vehicle—in any event from the idea that order is a lifeless product of people’s constituent power. More controversially, I suggest that instead of personifying ‘the people’, we provisionally personify constitutional order itself. For the purposes of this article this strikes me as immediately useful: having done that, we will appreciate the strange—and until recently dominant—but never really problematized, attitude of contemporary constitutional theory towards radical constitutional change. With the Ulysses-like reasonable ‘people’ out of the picture, we will notice that mainstream foundational constitutionalism portrays ‘constitution’ as a stubborn teenager, or as a credibility-obsessed mafia boss.

3 Joel I. Colón-Ríos, Weak Constitutionalism: Democratic legitimacy and the question of constituent power (Routledge 2013). 4 Jeremy Waldron, ‘Precommittment and Disagreement’ in Larry Alexander (ed) Constitutionalism: Philosophical Foundations (CUP 2001). 5 Darko Suvin, ‘On the Poetics of the Science Fiction Genre’ (1972) 34:3 College English 372. I borrow the term from the theory of science fiction, where it is has been influential in articulating its distinctiveness, vis-à-vis other literary forms. 6 ibid 374. 7 ibid.

With marked recent exceptions that I will discuss later in the text aside, foundational constitutionalism would rather have a constitution die in a revolution, than survive, but 'lose face’, by accommodating concrete radical constitutional demands, out of turn, by dishonouring the conditions prescribed in its own amendment procedure.

The final, third, move of cognitive estrangement rests on anthropomorphizing not only the constitution, but also the field that theorizes it. To say that constitutionalism ‘portrays’, or ‘describes’ as I have said above, is a commonplace rhetorical shorthand, most often with no meaningful theoretical and conceptual implications. Instead, however, I propose that we take such casual personifications of the field of constitutional theory a step further and, for the sake of this article, imagine the field of constitutional theory as a person itself, harbouring not only hopes and ideals, but also political and moral anxieties.8

In the context of problematizing the R/A binary, this three-fold constitutional estrangement will serve four, more concrete, objectives. First, a perspective that abandons ‘the people’’s personhood and focuses on discipline’s anxieties will help us uncover the tropes that remain obfuscated behind the ideas of ‘the people’ and the R/A binary. Behind them—as I will argue in section 1—we will encounter the tropes of acceleration, desire, space, responsiveness, fragmentation and erosion. Second, by upfronting discipline’s anxieties we will establish a further productive detachment from the ways in which contemporary theorists attempt to maintain our faith in sovereign peoplehood. In section 2, I will discuss three strategies of estrangement-prevention through which modern foundational constitutionalism negotiates its ideals and suppresses its anxieties—implicitly or explicitly re-enacting the R/A binary.

Third, by undermining the naturalness of the R/A binary, we will be better equipped to map the ways in which extra-constitutional constitutional change can be imagined in the space between them. In section 3, I set the stage for the re-imagination of that conceptual space by returning to the idea of ‘weak’ constitutionalism and by discussing the idea of ‘constitutional moment’, as two contemporary ways in which the R/A binary was either collapsed, or undermined. Though different in the way they understand the relationship between ‘the people’ and its constituent power, both ways of challenging the R/A binary nonetheless continue relying on the idea of a unified, sovereign people. This is problematic, I argue in this section, for two reasons. On the one hand, both prevent us both from identifying tendential responsiveness, as the common denominator embraced both by Colon-Rios’s ‘weak’ constitutionalism and Ackerman’s theory of ‘constitutional moments’. On the other, by continuing to take ‘the people’ for

8 I use the word anxieties deliberately, for three reasons. First, anxieties entail predictions about future. These predictions carry with them both an element of that what is reasonably expectable, but also exaggerated anticipations of future dangers. Second, I call them anxieties because constitutional theory doesn’t openly discuss them as worries, but rather suppresses them through its constitutional imaginary. Finally, calling those fears anxieties suggests not only that they might be blown out of proportion, but also that something productive can be done about them either at the level of conceptual re-imagination, or institutional prescription. For a humorous treatment of anxieties in the production of constitutional subjectivity that does not end on a constructive note, see Pierre Schlag, ‘The Empty Circles of Liberal Justification’ (1996) 96:1 Mich. L. Rev. 1. For a more general treatment of Cartesian Anxiety, that informs much of our contemporary (including constitutional) thinking, see Richard Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press 1983) 19.

granted, both obfuscate the three analytically distinct, if mutually intertwined, domains of tendential responsiveness: spatial, temporal and personal. Making this analytical distinction will enable us to enrich and complement the debate about constitutional amendments by introducing forms of radical constitutional change that either conceptually, or institutionally don’t rely on the will of the sovereign people.

Finally, fourth, cognitive estrangement will not only help us detect the tropes and possibilities behind the R/A binary, but will also help reframe other enduring debates in constitutional theory. On the one hand, in the final section of the essay, I propose a new way of understanding the so-called paradox of constitutionalism. On the other, I rearticulate the function of ultimate political sacrifice in constitutional imaginary. I end the essay, not only with a hopefully more nuanced understanding of the conceptual space between revolution and amendment, but also with a call for a more contextually sensible ‘marketing’ of the conceptual and institutional heritage of modern foundational constitutionalism. Beyond ‘the people’: new tropes, old anxieties To claim there is something curious about modern constitutional orders—which would rather violently die from ‘the people’’s hand, than be impelled to accommodate, (but survive and lose face) the demands from one of ‘the people’’s segments—assumes that we can think of constitutions and constitutionalism differently. Thinking about them differently, in turn, itself rests on certain assumptions.

To imagine a constitution not as a teenager, but as a generous adult, willing to respond with care to demands posed with urgency, but out of turn, would suggest that constitutional orders might be not only be capable of structuring big and small rhythms of political change, but that they could (or should) in principle speed up towards the satisfaction of discrete political demands. Equally, to imagine a constitutional order, which is in principle willing to accommodate such segmental demands, implies that their satisfaction would have something to do not only with the quality of reasons that support them, but with the intensity of desires behind them. To imagine, finally, a fragment of population provoking, and successfully obtaining, such a change would gesture towards potentially different constellation of responsiveness that remains obfuscated under the idea of a territorial people—which otherwise only through an amendment or a revolution effects a comprehensive constitutional change within a designated, integral territory. I will revisit these concepts in section 3, but at this point it is worth provisionally highlighting: acceleration, desire, configuration, responsiveness—these tropes appear as worthy of constitutionalist attention in their own right, only once we have imaginatively estranged ourselves from the idea ‘the people’’s personhood.

Equally, however, by treating the field of constitutional theory as an anxious individual helps explain the remarkable resilience of the idea of a sovereign people, together with the corresponding reluctance to undermine the R/A binary. Without ‘the people’, and the R/A binary reliant upon it, accelerated responsiveness might make the very idea of constitutionalism empty and dangerous. While a robust conception of collective self-government assumes that ‘consent would flow continuously’ so that the ‘business of the self [is] not … displaced onto any distant force’, 9 such view rouses the anxieties of modern constitutionalism, which, above all fears all ‘temporary impulses

9 Frank Michelman, ‘Foreword: Traces of Self-Government’ (1986) 100 HLR 4, 42.

[and] manipulated desires’. 10 Being responsive to intense, unqualified desires, unmediated by public reason, might make constitutional order accommodate wicked, stupid or unjust political projects. As famously stated by John Rawls in a different context, ‘intensity of desire, or strength of conviction is irrelevant when questions of justice arise’.11 Also, responding to such desires that come from discrete fragments of population may lead not only to sharp polarization among discrete interest groups, but, more ominously, to territorial fragmentation—the destruction of constitutional order’s territorial integrity. A generous, responsive constitution might respond favourably to the demands posed out of turn (as we will see in our discussion of the Secession Reference) but its anxieties undercut the explicit recognition of acceleration, desire and variable constellations of responsiveness as constitutive building blocks of foundational constitutionalism, behind the vocabulary of sovereign peoplehood. Finally, this initial sketch of the tropes behind sovereign peoplehood would not be complete without an extended temporal perspective: the reasons for preserving the picture of a constitutional order as a face-obsessed, inflexible adolescent, however, rely not only on the putative intrinsic demerits of approaching speed, desire and responsiveness affirmatively, without prior prejudices. The anxiety of constitutional theory is critically informed by the anticipation of the future ripple effects of the present-day accommodation of the notionally unconstitutional behavior. Three forms of estrangement-prevention: Holmes, Pettit, Dworkin We will inquire whether constitutional theory must capitulate before these worries in section 3, but before that, it is important to appreciate the idea of a sovereign people—and the R/A binary as its corollary—in a well-rounded way: not only as the manifestation of disciplinary and grassroots anxieties, but also as the manifestation of their ideals. Suppressing the spatiotemporal anxiety of constitutional theory is not the only reason why ‘the people’—either as a collective ‘person’, or as a name for a more abstract principle of constitution-making12—continues its sway over our imagination, preventing a productive cognitive estrangement I proposed in the introduction. There are other reasons, to which I now turn, whose effect is to uphold the idea of ‘the people’’s personhood that go beyond the suppression of spatiotemporal anxiety.

For Stephen Holmes, conjuring the idea of ‘the people’ as a person (Ulysses) is useful not only because it enables him to harness the evocative power of Greek mythology to fend off seductive threats of anti-liberal populism, but also to provide ideational support for a the protection of private property, and capitalist economy in general. Relying on James Madison, who refused to meet anti-constitutionalists on the plane of ‘high theory’, Holmes sees the virtues of trans-temporal, constitutionally pre-committed people political subjectivity in preventing of ‘squander[ing] scarce resources’.13 ‘Some essential national purposes’ can be achieved only through an inter-temporal division of labour. 14 Though Holmes’s rejects the proposition that the

10 Dennis F. Thompson, ‘Democracy in Time: Popular Sovereignty and Temporal Representation’ (2005) 12:2 Constellations 245, 246. 11 John Rawls, A Theory of Justice (Harvard University Press 1971) 361. 12 See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (translated by William Rehg, The MIT Press 1998) 133. 13 Holmes (note 2) 155. 14 ibid.

‘inevitability of latent conflict’ would necessarily lead to ‘[l]ong term advantage of … debtors’, he sides with Madison in that the absence of collective pre-commitment would ‘discourage every useful effort of steady industry’to the detriment of all.15

For Philip Pettit, the idea of collective peoplehood is the logical outcome of the deeper republican ideal of non-domination. We need to posit the existence of the territorially-bounded people because only in that way would we be able to justify the political equality of citizens, who posses equal control and influence over the direction of their government.16 However, the reason why republican constitutionalists should reject the critical salience of the paradox of constitutionalism lies both in his assessment that democratic theory cannot offer guidance about the judging the legitimacy of ‘the people’, but also in his peculiar way in which he portrays external political environment. The reason why trapped minorities should accept their existence in states they dislike, as a matter of ‘tough luck’17 is because the ‘states [are] locked into a pattern’ which would enable the external predatory states to exploit domestic attempts to undermine the unity of ‘the people’.18 Assuming the ever-present potential of external predation, forces you not only to ‘[y]ou … to comply with the state’ but also ‘assume its perspective’.19

Once the imagined external threat has corralled citizens together, Pettit mobilizes the ideal of legal equality to further cement the imperative of belonging to the extant people. He does so by conjuring a binary between the desirable general obedience of the law and individual obedience ‘a-la-carte’. The latter is in turn interpreted as an unfair official exemption that privileges some, at the expense of all others. Under this scheme, allowing the secession of a segment of population would be problematic not simply because that group would take away a portion of the territory that belongs to all, but, more importantly, because such move would create a situation of legal inequality between secessionists and the population of the remainder of the state.

Finally, Ronald Dworkin’s defense of law as integrity provides further, both direct and indirect, support for people’s personhood, even though Dworkin never directly concerned himself with the idea of popular sovereignty. For Dworkin, not only is the personification of groups widespread and widely accepted feature of social life, but personifying a political community is a political and moral imperative. We ought to do it, if we believe that community, as a whole, has obligations of impartiality towards its members, and that its officials must act as agents for the community in acquitting that responsibility.’20 We have to do it since those obligations cannot be grounded in ‘private morality’. 21 Beyond the idea of ‘self-legislation’, citizen’s understanding political community as a moral person has practical and moral benefits for two types of relationships: the relationship between the governors and the governed, on the one hand; and, the relationship among the governed themselves, on the other. First, the

15 ibid. 16 Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (2012) 17 ibid 153. 18 ibid 161. 19 ibid. 20 Ronald Dworkin, Law’s Empire (Belknap press 1986) 175. 21 ibid. Note that the belief in the necessity of personification cuts across the liberal-democratic and radical democratic political divide and is shared by both. See Claude Lefort, Democracy and Political Theory (1988) For Lefort, ‘any attempt to define objective impersonal entities implies a personification of those entities’ (254).

perspective of community serves as a protection against partiality, deceit, corruption, favouritism, or vindictiveness on behalf of public officials.22 Second, assuming the perspective of political community contributes to the solidification of political friendship amongst citizens as it reminds them of the long game of their political relationship. It invites them to ‘treat relations among themselves as characteristically not just spasmodically governed by these standards.’23 In reminding citizens of the long game, it perforce invites them to decenter their moral perspective: ‘it insists that each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions.’ And that, in turn, has potential for engendering political generosity in situations of heightened moral conflict. The ‘expressive value’ of political community is ‘confirmed when people in good faith try to treat one another in a way appropriate to common membership in a community … and to see each other and making this attempt, even when they disagree about exactly what integrity requires in particular circumstances’.24

Drawing attention to the assumptions and implications of Holmes’, Pettit’s and Dworkin’s argument is important, as it helps establish who and why might find the continued personification of ‘the people’ problematic. While Holmes doesn’t specifically defend liberal democratic capitalist constitutionalism, his reliance on Madison’s arguments suggests that constitutional pre-commitment might be particularly useful in societies that have internalized the Western idea of ‘civilization’. We need to constitutionally pre-commit as ‘the people’, not just to take up any kind of loan, but rather those that one constitutional generation will not be able to repay within its 20-year, Jeffersonian, lifespan. Big loans are needed to undertake large-scale, but spatially, or demographically focalized projects of socioeconomic development. For those societies that do not share such visions of socioeconomic development, the stark R/A binary will perforce be less compelling.

While in the existing world of foundational constitutionalism this objection is relatively harmless, recent economic crises in the global (semi-)peripheries shed light on the dark side of the virtuous link between pre-commitment and the ‘useful effort of the steady industry’. In countries such as Greece, the fiction of people’s pre-committment provides moral(istic) support to the arguments for fiscal austerity, which demand unfair long-term painful sacrifices from the most vulnerable sections of the population which have neither had meaningful influence over the course of government’s economic policy, nor have they profited from the corruption among the bureaucracy and the ruling elite. Unless we adopted the Sieyèsian understanding of ‘the people’, people’s personhood has a potential to systematically shortchange the poor, by moralistically, but politically unproductively, impelling them to internalize the idea that they, together with everyone else, are in the same ‘boat’ together.

While ‘extending the moral dimension of any explicit political decision[]’ may cut both ways, the same risk plagues Dworkin’s defense of political community’s personification. In addition, the assumptions behind it leave national minorities within existing states without the theoretical apparatus that would enable them to challenge the territorial status quo, without succumbing to ethno-nationalist visions of popular self-determination. In defending the idea of personification, Dworkin exclusively focuses

22 Dworkin (note 20) 188.

23 ibid 189. 24 ibid 190.

only on ‘United States and Britain’, treating the question of political boundaries among different nations as a technicality.

While the existence of fraternal, associative political obligations beneath Dworkin’s legitimate political community leaves the door ajar for the dismemberment of the existing collective persona of ‘the people’, Pettit has, as we have seen, vehemently rejected any such possibility. This rejection, however, is problematic not only because he wrongly assumed that democratic theory has remained silent in front of the paradox of constitutionalism25, but also because he didn’t provide reasons as to why accept the general conceptual assumption of the predatory outside, as the political truth in concrete radical political conflicts that put in doubt the identity of ‘the people’. Concretely: why would the Catalans or the Quebecois have to accept their ‘tough luck’, if the larger context of the EU within which their secession would occur is decidedly not predatory. By the same token, why would we have to accept Pettit’s binary between general obedience and obedience a-la-carte when negotiating towards secession—within an existing constitutional order, as envisaged by the Canadian Supreme Court—would have violated no one’s political and legal equality.

In giving us a richer defense of Lockean Ulysses, the critique of Holmes’, Dworkin’s and Pettit’s defense of ‘the people’’s personality also carries ethical, constructive, and re-constructive implications. First, the critique hazarded above can be understood as a wishful disruption of the dominant ‘social imaginary’ and the grassroots political ethos, based on it. By engaging in cognitive estrangement, and by charting the ways in which this estrangement is combated in theory, we would contribute to a more hesitant acceptance of the vocabulary of peoplehood, understood not simply as a sum of political and moral aspirations, but also as a political ideology animated by disciplinary anxieties of foundational constitutionalism. By stressing who may stand to lose from Holmes’, Dworkin’s and Pettit’s embrace of people’s personality, we are better positioned to understand peoplehood as a device for narrowing ‘the credibility gap’ between the governors’ assertions of legitimate authority, and the fragile belief ‘in the regime’s legitimacy held by its subjects’.26

Tertium datur: mapping constitutional change between the revolution and the amendment In this section, however, I wish to focus on the second, constructive, implication of the engagement with Holmes, Dworkin and Pettit, while leaving the third implication for the conclusion. The critique of their reasons for personification of peoplehood has shown that our embrace of the R/A binary will depend not only on whether we find the stylizations of peoplehood compelling, and not only on our contingent positions in concrete constitutional struggles, but also on the price we are otherwise willing to pay for the putative benefits of collective peoplehood. In other words, making conceptual room between the revolution on the one side, and the amendment on the other, will depend not only whether we find the idea of Ulysses, or docile Lockean rebel attractive, but also on whether we are persuaded by Holmes’, Dworkin’s and Pettit’s conceptual assumptions, normative aspirations and prudential warnings all of which inform their commitment to the idea of popular sovereignty.

25 Pettit (note 16). 26 Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78:1 MLR 1, 14.

This is important to stress because recent attempts to collapse the R/A binary start from definitional commitments to a particular idea of ‘the people’ and its pouvoir constituant, and proceed without a finer grained mapping of the promises and perils of peoplehood in its different contexts.The way in which Colón-Riós collapses the R/A binary is simple: constituent power of ‘the people’, read in a democratic key, should mandate radical political openness, and, widest possible direct popular participation in the process of constitutional change. During this process, established constitutional forms shouldn’t enjoy precedence: irrespective of amending procedures, citizens should be allowed to propose, deliberate and decide on a new constitution, unconstrained by strictures of the existing constitution. 27

Such, ‘weak’, constitutionalism is pitted against another influential contemporary project of undermining the R/A binary, Bruce Ackerman’s ‘constitutional moments’.Ackerman’s argument is well known and doesn’t require much exposition: For him, the heightened degree of political mobilization in the United States in the late 1860s and 1930s have led to constitutional ‘moments’—profound extra-constitutional political changes which amounted to a de facto constitutional amendment.28 Both during the reconstruction in the late 1860s, and during the New Deal in the 1930s, mobilized political deliberations over contentious political issues led to a constitutional impasse, which was broken by a decisive electoral victory won by one of the branches of government, which led her to claim the mandate to pursue radical constitutional change. In both cases, the meaning of such electoral victory was disputed by the branch defending the constitutional status quo. The branch that claimed the decisive electoral mandate constitutional autonomy was then challenged, forcing it to reckon whether on not to endure in its challenge of a ‘decisive electoral mandate of another branch of government’. The result, in both cases was the ‘shift in time’ where the dissenting branch called off its resistance, and acceded to the interpretation of the branch that initially claimed popular mandate for itself.29

Ackerman’s model has been both remarkably influential, as well as subject to sustained critiques about its historical accuracy. What is more important for our purposes is to emphasize that while constitutional moment undermined the R/A binary, both the Ackerman’s innovation—as well as ‘weak’ constitutionalism, that Colon-Rios’ offered as its alternative—have continued to operate within the monolithic conception of ‘the people’, and its will. In both cases, concrete political contexts devoid of problem-generating radical diversity helped in in upholding the monolith. In Ackerman’s case, the contingent facts of the defeat of the Confederation in the 1865, and, by 1930s, solidified Pan-American national consciousness have critically contributed to the portrayal of the radical political conflicts as the conflicts over the meaning, not the existence of the unified people’s will. Equally, the factual absence of politically salient fragmentation within Venezuela and Ecuador helped Colon-Rios assume the identity of ‘the people’ as the bearer of pouvoir constituant.

At this point, however, the second act of cognitive estrangement becomes critical for reinterpreting the hidden commonality between weak constitutionalism and constitutional moment, and—more importantly—for setting the stage for a richer understanding of the conceptual space between the revolution and the amendment. If 27 Colón-Ríos (note 3). 28 Bruce Ackerman, ‘Higher Lawmaking’ in Sanford Levinson (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press 1996). 29 ibid 78.

constitutional order—and not ‘the people’—is a person, then Colon-Rios’ and Ackerman’s constitutional order establishes itself as in principle responsive to the demands for radical constitutional change posed out of prescribed constitutional turn. What is more, such constitutional order establishes itself as tendentially responsive, towards the satisfaction of popular desires. And what is more: such constitutional order, as I suggested in section 1, shows that it in working towards the satisfaction of popular aspirations it is capable of accelerating the process of constitutional change.

Traces of that are visible in Ackerman’s account of constitutional moments. In worrying about the possibility that constitutional order might remain unmoved—produce ‘false negative’ answers to authentic expressions of ‘the people’’s will—and by embracing an account of human psychology which starts from a spasmodic character of individual political mobilization, Ackerman comes close to recognizing responsiveness and its speed, as constitutional ideals in their own right. If instead of ‘tracks’ of constitutional change we imagined ‘gears’, and if instead of ‘higher’ and ‘lower’ modes, we saw ‘faster’ and ‘slower’ speeds of constitution making, we would be compelled to admit that the accelerated pace of responsiveness must be understood affirmatively for constitutional moments (and weak constitutionalism) to make sense.

However, as Sujit Choudhry rightly noted, Ackerman’s template confronts difficulties in the contexts where constitutional change proceeds without an underlying agreement about the identity of ‘the people’. 30 Still, for Choudhry, ‘the Secession Reference is best understood as part of a constitutional moment—an extralegal move to amend the Canadian Constitution to add a secession clause, prompted by the failure of the rules for constitutional amendment under the Constitution.’ 31 However, by insistiting that the Reference can still be seen as part of a constitutional moment, Choudhry has neglected how the Supreme Court made tendential, accelerated, responsiveness the centerpiece of its judgment. This, in turn, presents the Reference not only an alternative to Ackerman’s constitutional moment, but also a challenge to the idea of the sovereignty of a unified people itself, irrespective of the lip-service the Court paid to it in the judgment itself. What makes the Secession Reference exceptional are neither the invocation of the four unwritten principles, nor its description of the interplay between the principles of federalism and democracy. 32 What is truly innovative, however, is the way in which the Court linked the idea of the consent of the governed with the duty of responsiveness on behalf of the constitutional order to be responsive to its changes. Rather than treating consent as a counterfactual heuristic device like many contemporary constitutional theorists, the Court stated that ‘[t]he continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.’33

The Court concluded that doing so ‘would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of ‘the people’ of Quebec.’34 Elsewhere I have argued that the latter

30 Sujit Choudhry, ‘Ackerman's higher lawmaking in comparative constitutional perspective: Constitutional moments as constitutional failures?’ (2008) 6:2 ICON 193. 31 ibid 221. 32 For a discussion see my Zoran Oklopcic, The Migrating Spirit of the Secession Reference in Southeastern Europe, CJLJ (2011), 347, 365-76. 33 Reference re Secession of Quebec [1998] 2 SCR 217, para 92. 34 ibid.

invocation of the Quebecois peoplehood obfuscates the theoretical importance of the Reference.35 I have argued that what animates the Court’s opinion is its commitment to the improvement in the aggregate satisfaction of individual constitutional attachments, not the right of ‘the people’ of Quebec to determine its destiny.36 I have argued that while the majority of ‘the people’—the population—of Quebec has a right to trigger the process of constitutional change, it cannot unilaterally determine neither the territorial nor personal sphere of independent Quebec’s jurisdiction.

The important thing is that a segment of the population can trigger the process of constitutional change, which should then unfold towards the satisfaction of their constitutional demands. By positing the requirement of ‘good faith’, the Court has can also be interpreted as suggesting that the tempo of constitutional negotiations should correspond to the urgency of the democratic demand for secession, or, at the very least that constitutional negotiations should not arbitrarily slow down, without consequences for the legitimacy of the Canadian constitutional order.

The contrast with Ackerman’s constitutional moment cannot be starker: while constitutional moment arises from the game of chicken between different branches of government, Secession Reference imagines constitutional order as radically, and, what is more, tendentially, responsive to the changes in the degree and constellation of political allegiance. While constitutional moments reveal the will of the united people, and can be understood as moments of nation-building, the Secession Reference responds to the desires of a segment of the entire Canadian population, by providing the framework for nation-dismantling. Finally, constitutional moments leave the constitution’s territory intact, while the Reference portrayed the Canadian constitutional order as spatially responsive.

Treating the Secession Reference as a challenge to Ackerman’s constitutional moment, in a different way from the one proposed by Choudhry, is important because it leads us to the critical analytical insight. What Secession Reference forces us to recognize is that tendential responsiveness can appear not not just in one, but also in three registers. In other words, what otherwise passes under the name of people’s will is a constellation of spatial, personal and temporal registers of tendential responsiveness. In principle, and sometimes in practice, constitutional order can also speed up to satisfy the aspirations not only of the whole (territorial) people, but also those of one of its territorial or non-territorial segments. The constitutional change may result in spatial or substantive responsiveness towards the desires of a segment of a population.

At this point, however, it is important to insist on the scope of radical responsiveness. Intense political desires are relevant in all three, temporal and spatial, personal domains of responsiveness. By circumventing the Part V of Constitution Act 1982, secessionists can trigger and effectively speed up the process of constitutional change towards the spatial reconfiguration of Canada according to their desires. Their desire is legitimate, not because they of their substantive plans of what to do with independent Quebec, but simply because spatial reconfiguration (of the prescribed provincial magnitude, and under stipulated circumstances of ‘clear majority and clear question’) Contemporary Canadian constitutional jurisprudence however does not make such tendential responsiveness available neither to imaginary socialists demanding negotiations over abolishing capitalist economy, nor to environmentalists demanding 35 Zoran Oklopcic, ‘The Anxieties of Consent: Theorizing Secession between Constitutionalism and Self-Determination’ (2015) 22:2 Int’l. J. of Group and Min. R. 259. 36 ibid.

that Canada re-commits to Kyoto protocol, nor to, finally Aboriginal peoples demanding radical reconstitution of Canada. Having resorted to a narrative of Canadian constitutional history and relevant jurisprudence, the Court has not only insulated secessionist demands from other radical demands, but has further restricted them to province-wide majorities demanding secession.

In the case of the Secession Reference we have seen that the spatial and personal register of tendential responsiveness are inextricably intertwined. Spatial responsiveness is the result of the personal responsiveness, and the personal responsiveness is the result of no concrete, specified constitutional project. The Court deemed the secession of Quebec a legitimate project, not because it was convinced that it is necessarily a good idea, but simply because enough of Canadian citizens (would) have revoked its consent to the Canadian constitutional order.

But there are historical examples that show us how constitutional orders can, in principle, be responsive to the segmental demands which have general constitutional implications, not in the name of the entire people, but rather in the name of political desires of that segment itself, in a way in which such radical constitutional responsiveness does not carry with itself permanent territorial consequences. To help us imagine such radical constitutional responsiveness we must travel further in time, and consider the phenomenon of secessio plebis, periodic constitutional crisis in ancient Rome.

Rather than a territorial ‘secession’ in contemporary sense, the first secessio plebis was a combination of an Occupy Movement and a general strike. In 494 BC, disenfranchised plebeians abandoned the confines of Rome, and encamped on the adjacent Mons Sacer, wowing to remain there until their fundamental demands are met. Their purpose was not secession, the extraction of concrete material benefits, or the establishment of a new constitutional order—but rather radical constitutional reform that would create new institutions (tribunate) giving them more power and, by implication, more equality vis-à-vis ruling patricians. The constitutional moment they have provoked was not effectuated in the name of, (or by), Ackerman’s ‘We the people’, but rather in response to the demands of plebeians, those who stood outside (both literally and conceptually) of the political body.

As a form of extra-constitutional constitutional change distinct from constitutional moments, and popular constituent power, secessio plebis has both institutional and conceptual implications. John McCormick, has for example, suggested that modern constitutional orders could find inspiration in the office of tribunes, which would have a right to veto legislation, in the name of protecting the interests of the downtrodden, plebeian sections of general population. 37

Such institutional innovation, however, comes at a price. According to Miguel Vatter, for secessio plebis to be coherent, we would have to abandon the republican idea of a unified people as the body of co-equal individuals that lives under the same constitutional framework. 38 Rather than heeding Dworkin’s advice to personalize political community in order to be able to conjure political equality among all of its citizens, we should keep the plebs separate from the populus as the condition of their ‘constituent power to make equal law’.39 Splitting the unified people between two camps (rich and poor, powerful and powerless in this case) is the conceptual condition for 37 John P. McCormick, Machiavellian Democracy (CUP 2011) 183. 38 Miguel Vatter, ‘The quarrel between populism and republicanism: Machiavelli and the antinomies of plebeian politics’ (2012) 11:3 Contemporary Political Theory 242. 39 ibid 244.

reimagining constitutional order as temporally and substantively responsive to radical, segmental political demands.

I conclude the project of dissolving the R/A binary and nuancing the forms of extra-constitutional change by discussing ‘existential’ exception, proposed by Hans Lindahl. While in the previous cases, constitutional change occurs at a macro scale, applying to the entire population and to the entire territory, or at least to their large discernible segment, (progressive) ‘existential’ exception applies at the level of the individual citizen itself. The change in this case doesn’t result in new constitutional provisions (14th Amendment) political institutions (tribunate) or the inscription of new fundamental rights. Rather, the change in question is the silence or a seemingly misdirected reaction of the constitution in response to the behaviour that is otherwise understood as unconstitutional.

Like with previously discussed cases, in order to restrict itself (this time at the micro level) constitutional order needs neither revolution nor constitutional amendment. Unlike Vatter and McCormick, however, Lindahl undermined the R/A binary not by abandoning the figure of ‘the people’, but rather by drawing our attention to something that Ackerman’s account swept under the rug, by simply accepting the results of historical contingencies behind the (re-)founding moments of the American republic. While the secession of the Southern states and their subsequent re-incorporation into the Union can be narrated as part of a larger debate about the moral identity of the American people, these historical periods are also manifestations of a deeper conceptual difficulty that concerns the legitimate scope of the American demos.

In approaching this question through the lens of the debates between compact and nationalist theories of federation, most constitutional scholars have under-appreciated the extent of the challenge posed by the question about the legitimate scope of democratic unit. Rather than presenting itself in the context of two-level compound polities, this challenge extends all the way through.40 Rather than accepting that this question is settled by contingent historical events, Lindahl sees conflicts over the identity ‘the people’ as insuppressible and endemic. 41 Irrespective of the ways in which constitutional ‘closure’ occurs, the legitimacy of new polity will always remain tainted by constitutional over- and under- inclusion.42 As a result, realizing that the constitution of ‘the people’ always carries traces of heteronomy, should impel the members of a polity not to deny the existence of this collective subject (such as in Vatter and MacCormick), but rather to understand it as unavoidably ‘strange’43. By implication, this wished-for cognitive distance has direct political consequences: in being aware that our collective existence is ‘strange’, ‘collectives ought to acknowledge that they have a normative blind spot which they can neither fully justify nor remove, and they ought to take this into account when responding to a-legality in the process of setting legal boundaries’.44

40 Think of the recursive secession of West Virginia in 1861, for example. 41 I’ve emphasized the constitutional theory here because there are burgeoning approaches in democratic theory, which purport to be able to provide comprehensive arguments about the scope of a legitimate people. I think these approaches are for different reasons mistaken, and that Lindahl is right to stress the irreducible agonism in the context of polity formation. 42 Hans Lindahl, Fault-lines of Globalization: Legal Order and the Politics of A-Legality (OUP 2013). 43 ibid 44 ibid 249.

Welcome cognitive dissonance that arises out of the recognition of this blind spot should lead polity’s officials to exercise ‘collective self-restraint’ in confronting unconstitutional challenges. Such principled stance can justify constitutional strategies, which Lindahl—recognizing his debt to Carl Schmitt—dubbed existential exceptions. While Lindahl appropriated Schmitt’s affirmative account of exceptions, he turned Schmitt’s argument on its head. Rather than being used to suspend constitutional order in order to neutralize internal enemies, they are carved out in order to ‘preserve and sustain’ radical challenges to constitutional order which constitutional order itself cannot code as intelligible.45 Such exception will occur as the result of legal acts that are always at the disposal of legal officials, but which are generally not perceived as devices, or are—worse still—seen as aberrations from the ideals of constitutionalism and the rule of law. Such existential exceptions can be carved out in myriad of ways: by not initiating criminal proceedings and waiting for statute of limitations to pass, by strategically invoking political questions doctrine, or simply by refraining to declare unconstitutional behavior unconstitutional. Lindahl’s perspective on peoplehood not only undermines the R/A binary, but also allows us to understand the quotidian behaviors of legal officials—those that we would otherwise criticize as deviations from the ideals of the rule of law and constitutionalism—as mechanisms of constitutional change.

Drawing attention to the way in which we may re-envision quotidian legal acts as mechanisms of constitutional change brings us to the question of perspective in our attempts to complicate, and ultimately dissolve the R/A binary. Before tackling this question, here is another, schematic, glance at the conceptual space between the revolution and amendment:

R/A BINARY

THEORETICAL

APPROACH

THE IDENTITY OF ‘THE PEOPLE’

REGISTERS OF RESPONSIVENESS

SPATIAL (fragmentation)

PERSONAL (beneficiary)

TEMPORAL (acceleration)X

Preserved

‘STANDARD’ FOUNDATIONAL

CONSTITUTIONALISM

upheld/ unproblematized

no

‘the people’

no

Dissolveed

‘WEAK’

CONSTITUTIONALISM

upheld/ unproblematized

no

‘the people’

yes

CONSTITUTIONAL

MOMENTS

upheld/

unproblematized

no

‘the people’

yes

SECESSION

REFERENCE

superficially upheld/

disaggregated

yes

permanent

the segment

yes

45 ibid 251. X By ‘acceleration’ I understand speeding up the process of constitutional change in a way not envisaged by the constitutional provisions themselves. So, for example, triggering the process of constitutional change through a referendum based on popular initiative would accelerate the process of constitutional change, but would not count as acceleration in a way I am using the term in this essay.

SECESSIO PLEBIS

explicitly rejected/

Fractured in two camps

yes

temporary

the segment

yes

‘EXISTENTIAL’ EXCEPTION

upheld/

put in doubt

no

Segments and individual

citizen

no

Pausing on the question of perspective is important because it impels us to confront the political, concrete productivity of providing the taxonomy of extra-constitutional changes that have complicated, and ultimately undermined, the R/A binary. This problem doesn’t present itself if we approached the dissolution of the R/A binary either from the perspective of a theorist, or from the perspective of a legal official. In the first case, the theoretical perspective leaves the object of its inquiry untouched, contributing at most, to a more self-aware understanding of the conceptual field within which constitutional change becomes intelligible. In the second case, however, this heightened awareness of what may (should) count as constitutional change, may engender mutations in the officials’ so-called internal point of view’. Without altering their patterns of justification that rely on foundational constitutionalism, such officials could calibrate their concrete arguments so as to contribute to, say, acceleration of constitutional order’s responsiveness towards the radical demands of discrete segments of population.

Finally, beyond the theorists and the officials, the dissolution of the R/A binary speaks also to grassroots, radical challengers to constitutional status quo. Scholars most critical to (republican) foundational constitutionalism, such as Emilios Christodoulidis, have suggested that they engage in ‘strategies of rupture’ and ‘identify a spectrum of possible [radical] political interventions in relation to law, rather than under its auspices.’46 Within that spectrum there is a need for ‘a strategic decision … whether to play the system or to confront it’.47 In Christodoulidis’ enigmatic phrase, strategies of rupture call for a ‘militant attention to the points of tension upon which the management of consensus depends, and the introduction of a ‘heterogeneity’ or incongruence capable of generating and sustaining itself against the management of consensus and the order of representation that it serves.’48

However, Christodoulidis’ suggestion to move beyond the rebellion and reformism in imagining avenues of radical political change presents us, then, with the question of productivity of the analytical dissolution of the R/A binary for such political movements. The crucial question is whether the analytics that went into the dissolution of the R/A binary can cash out not only in the register of perception and self-awareness, but also discursively, as a political demand. In other words, is it possible to demand acceleration of responsiveness, spatial reconfiguration, or the creation of new, partisan, constitutional institutions without the mediating vehicle of sovereign peoplehood, and without demanding constitutional amendment? If the three registers of responsiveness are the suppressed analytical truth behind popular, foundational constitutionalism, can

46 Emilios Christodoulidis, ‘Strategies of Rupture’ (2009) 20 Law and Critique 3. 47 ibid. 48 ibid.

they do argumentative work, without references to either peoplehood, fundamental rights49, or some over-arching justice-based argument?

Why shouldn’t various movements simply perform ‘exhaustion with suffering’ in the pursuit of their radical agenda, as they have done so many times in the past? Put differently, strategies of rupture may choose to ignore their own discursive implications. The question, however, is can they: exisiting ‘in relation to [constitutional] law’, these strategies will constantly be provoked to explain it, and in the process, explain themselves.

It is worth stressing three questions that will continue to haunt them. The first question concerns patience. At the ‘meta-level’ of the strategy of rupture, the partisans of rupture will decide between provoking oppression, and setting the stage for the objective exhaustion with suffering, or performing exhaustion with constructed suffering. Pausing on the trope of patience should make us wonder about a third possibility: embracing impatience as a legitimate constitutional sentiment, and demanding the acceleration of responsiveness, beyond the rhythms of constitutionalized democratic politics. Only under this assumption does Slavoj Žižek’s often-repeated strategic advice make sense:

The lesson here is that the truly subversive thing is not to insist on ‘infinite’ demands we know those in power cannot fulfill. Since they know that we know it, such an ‘infinitely demanding’ attitude presents no problem for those in power: ‘So wonderful that, with your critical demands, you remind us what kind of world we would all like to live in. Unfortunately, we live in the real world, where we have to make do with what is possible.’ The thing to do is, on the contrary, to bombard those in power with strategically well-selected, precise, finite demands, which can’t be met with the same excuse.50

Importantly, however: it is not that those ‘precise, finite demands’ cannot be met in reality, but rather that they cannot be met soon. In other words, an intelligent foundational constitutionalist (or a republican adherent of popular sovereignty) will only argue that such demands have to be processed in the naturally slow rhythm of democratic politics and constitutional change.51 So should they choose to speak back, strategists of rupture would need to argue two things. First, that the acceleration of responsiveness is an ideal already implicit in the vocabulary of peoplehood and foundational constitutionalism. And second, that patience is not simply as a positive virtue but also as a negative response. The demand to be patient is a refusal to (continue) explain(ing) why the process cannot be sped up, concealing the arbitrary budgeting of political energy of those in power.

The second question concerns face. Constitutional theorists have long drawn attention to how personation—the mask of ‘the people’, ‘commonwealth’, ‘sovereignty’—

49 For an influential account of the intimate relationship between the vocabulary of rights and popular sovereignty in the context of the struggles for social emancipation see Claude Lefort, The Political Forms of Modern Society Bureaucracy, Democracy, Totalitarianism (The MIT Press 1986) 261-2 50 Slavoj Žižek, ‘Resistance is Surrender’ 29 (22) LRB (15 November 2007). 51 But cf. William Scheuerman, ‘Constitutionalism in an Age of Speed’ (2002) 19 Constitutional Commentary 353. Scheuerman claims that ‘the age of speed’ has ushered in an appetite for executive action and that it disrupts the slow rhythms of democratic politics. Rather than mourning the acceleration of constitutional politics, we should be attentive to how the hegemony of liberal-democratic constitutionalism continues to rely on the idea of a slow pace of democratic political change.

enables political and legal agency. 52 But we should also think of the ‘face’ of constitutional order literally. Spatiotemporal anxieties of fragmentation and fickleness rely on an assumption that constitutional order won’t be credible, once it has made an exception. Republicans, such as Pettit, don’t make that argument explicitly, but those who seek to confront the ‘tough luck!’ dismissal, must be ready to engage those anxieties constructively. Christodoulidis’ injunction to ‘play[] the system’ here doesn’t only mean a decision of whether or not to engage in legal argument, but more expansively, it gestures towards the rhetoric of how to help constitutional order save face, and diminish its own anxieties, after radicals have forced it to make a Lindahlian ‘existential’ exception.

The third question concerns affectedness. A spatiotemporal ‘provocation’ such as secessio plebis challenges the understanding of ‘the people’ as the body of all those who are ‘in it together’. But here the analogy between secessio plebis and any such present-day strategy of rupture, breaks down. Plebeians actually left the territory of the state, and weren’t part of the Roman political body, to begin with.53 In contrast, the contemporary 99% are part of the larger ‘people’, and, as a result, have to fight counter-charges of NIMBY-ism, irresponsibility, and socio-economic parasitism—the charges predicated on an idea that satisfying their localized demands must come at the expense of other fellow citizens’ well-being.

If they wanted to engage those counter-claims discursively, strategies of rupture would face two theoretical avenues. On the one hand, they could pursue a neo-Sieyesian route, and construct a polit-economic complement to a radical constitutional imaginary that would dignify the figure of the plebs, the poor, or the excluded. What gave force to Sieyes’ pamphlet were not three sentences on the meaning of constituent power that most constitutional theory quotes today, but an elaborate socioeconomic argument supporting the struggle of the then ‘99 percent’. On the other hand, they could try to demask the very idea of popular collective self-government that continues to put the demands of those disenfranchised in its place. But here comes a crucial difference.

To re-enact secessio plebis today, we would need to do it in the name of a principle other than either ‘the people’’s or the plebs’ ‘constituent power’. In giving dignity to the strategy of rupture in relation to the idea of a constitutional order—this time without an overarching account of political economy—constitutional theory would need to challenge the idea of ‘being in it together’, and perforce the idea that socioeconomic policies, conducted in the name of ‘the people’, affect everyone equally. In doing so, it would need to find a way to speak to those who find Dworkin and Pettit persuasive, constructively: that is, construct imaginative ways which would maintain equal dignity of everyone who belongs to a polity, while at the same time selectively disenfranchising those who use the vocabulary of peoplehood and affectedness—as the ultimate line of defense—to protect their visible and invisible, concrete and diffuse, socioeconomic privilege. Towards a different familiarity: ‘the people’, the paradox and the sacrifice Perhaps this can be done by embracing an image that clearly broadcasts the fact that ‘the

52 For a discussion of the face, ‘persona’ and personation in the context of Hobbes’ political thought see David Runciman, Pluralism and the Personality of the State (CUP 1997). 53 Vatter (note 41) 256.

people’ is a fictional shorthand for a bundle of moral and prudential imperatives.54 Such account of peoplehood might be capacious enough to embrace the legitimacy of the impatient desires of different minorities that cannot otherwise be rendered intelligible by invoking ‘the will’ of a sovereign people, or its constituent power. Likewise, such an account might allow us to continue enjoying the benefits of the imagination of collective agency—useful not only for the ethical purposes described by Dworkin—but also for more prosaic purposes, we have otherwise learned to take for granted. As Raino Tuomela argued,

[t]he value of the group-level description of group agents lies largely in its economizing and systemizing, but also its explanatory value (concerning, e.g., groups’ actions and members’ collective action), in general its epistemic and practical advantages. A group-level description makes it much easier to discuss interaction and interdependence between various macro social groups and social structures … Such a group agent basically has the capacity to act as a unit; while a citizen-level description of its particular activities would be an over-whelming task, a group-level description is viable.55

I stress this because the aim of this essay has not been to advocate for abandoning the concept of the (sovereign) people, nor for the rejection of any of its attributes, such as constituent power or self-determination. Rather, in calling for the estrangement from the vocabulary of peoplehood, my aim was to call for a renewed imaginative effort that would both lend constitutional intelligibility and political dignity to the sentiments expressed by Williams in the epigraph to this chapter, and that would contribute to finding ways of inscribing that dignity into whatever figures end up mediating our ‘popular’ expectations.

By the same token, however, in this chapter I also found it productive to radicalize this cognitive estrangement in hope of making three theoretical implications of doing so sharper. The first concerns the problem that most constitutional theorist today call the paradox of constitutionalism. With the benefit of the preceding discussion, the so-called paradox ought to be seen as the product of a conscious, or semi-conscious decision that the alternatives to the vocabulary of peoplehood (that generated it in the first place) are not, for whatever reason, acceptable. Seen from this perspective, ‘the people’ should be seen neither as Ulysses, nor as a temporary occupant of the ‘empty space of power’, but rather as that imaginative and institutional leftover space, delineated by our conscious refusals to embrace the alternatives, some of which I outlined in the preceding section of the chapter. In other words, the affirmations of the paradox’s existence should not be seen as inconvenient conceptual truths of modern constitutional theory, but rather as symptoms of unreflective intimations, or half-considered decisions, that the price for abandoning ‘the people’ is too steep, or that the benefit of doing so is too small. Second, confronting the defenses of peoplehood with its alternatives also unearths another suppressed dimension in the pragmatics of its invocation. Simply put, ‘the people’, its sovereignty, rights and constituent power make more sense in certain contexts, less so in others. In Dworkin’s ‘United States and Britain’, assuming the moral personhood may be fruitful in all these numerous cases where the bonds of friendship can be taken for granted, and where extending our moral perspective is helpful in

54 For one such recent proposal, see Mark Tushnet, ‘Peasants with pitchforks, and toilers with Twitter: Constitutional revolutions and the constituent power’ (2015) 13:3 ICON 639. 55 Raino Tuomela, Social Ontology (OUP 2013) 22.

overcoming ‘the torment of heteronomy’56 involved in legal and political arbitration of momentous, but quotidian ethical conflicts. Abortion, equitable taxation, vote suppression, gay rights: it may well be that it is prudentially and morally beneficial to assume the aspirational perspective of the long popular durée among all those whom we have sentenced to sharing the same constitutional ‘boat’. On the other hand, in extraordinary conflicts—those that concern the nature and existence of a polity—republican insistence on sovereign people is, to put it bluntly, unconvincing, but in the insistence on its credibility infuriating, shell game. The insistence on it is either self-defeating (by adopting assumptions such as Dworkin’s fraternal obligations), or entails a caricatured vision of external environment and the postulation of crude binaries between general obedience and inequality-generating exceptions (Pettit). The insistence on sovereign peoplehood is not only surprisingly disrespectful towards those who want to radically change their political status peacefully (‘Tough luck!’, says Pettit), but fails to register moral costs of doing so, as it pushes those who want to establish a radically different constitutional order towards revolution. It encourages nationalists to continue insisting on their sovereign peoplehood since this is the only language in which modern constitutionalism may eventually understand them. Moreover, it encourages them, together with other radicals, to stage their oppression—perform their exhaustion with suffering—all in order for their project to be morally and conceptually legible to modern constitutionalism.

Finally—and this is my last point—it encourages them to offer evidence for the credibility of their assertions through sacrifice. Against culturalist approaches to constitutional theory (such as those of Paul W. Kahn), self- and other- sacrifice should not be seen as part and parcel of some deep theological infrastructure of modern popular sovereignty.57 Rather, political sacrifice should be seen as a functional, quite secular, imperative of modern constitutionalism, stemming from its unwillingness to move past the revolution/amendment binary. We cannot accelerate; we cannot be responsive to your desires, not only because doing so would make you more ‘equal’ than your co-citizens, but also because your desires may be unauthentic, their motive exploitative, and your claim of being exhausted with oppression, fabricated or premature. Revolutionary sacrifice is a secular ordalium—a functional response to this epistemic anxiety.

56 Hans Kelsen, ‘On the Essence and Value of Democracy’ in Arthur J Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2000) 84. 57 See Paul W Kahn, Putting Liberalism in its Place (Princeton University Press 2005).