Constituent Power and the Material Constitution

Abstract At its most basic, constituent power is the power to make and sustain a polity as a constitutional order. According to Sieyès, constituent power lies with the Third Estate, the newly emerging commercial class that is both productive and representative of the nation. With the development of Marxism in the long nineteenth century, this settlement comes under fire, as liberalism is critiqued as ideological and a new productive and representative power emerges—the industrial working class—considered a revolutionary class capable of transcending the capitalist mode of production. The liberal state’s failure to answer the social question coincides in a third step with a distinct, conservative conception of constituent power as constitutional identity. Far from an expression of the productive and representative power of the people, the materiality of constituent power transforms into a metaphysical notion that, in Schmitt’s hands, symbolizes a pre-existing constitutional identity.