Constituent Power: Political Unity and Constitutional Plurality

This article explores the political sociology of constituent power and its implications for inclusion and diversity. Some embodiment of the collective necessarily underwrites constituent power yet the identity of ‘‘the people” remains elusive. Constitutional theorists accept that constituent power relies on a prior political unity, but they do not dwell on its terms. This lends constitutional theory a peculiarly ahistorical feel when it comes to constituent power. This article studies the theoretical moves of constituent power as it travels from the hoi polloi of the people to the constituted power of the state. In turn, this reveals the work that the prior political unity performs and the vision of human plurality that makes it into constituent power, and how those echo in contemporary constitutional society. The article begins by exploring the philosophical value of constituent power for collective life, which is contained in the idea of self-rule. Scholars of constituent power differ on the character of the people at the bottom of constituent power as well as their embodied temporality. This article focuses on the aspects of constituent power that articulate the political base as something to be located, not as something requiring justification. Such aspects include the paradox of constituent power, which elides the factual, empirical, social people, as well as inattention to the manner in which the concept suggests a pure constituent starting place. The article concludes by initiating the effort to map the people onto the constitution. It looks at two different cases — one involving Quebec and the other involving Aboriginal peoples — to understand the story that Canadian constitutional identity tells about constituent power.