Hoyos on "Who are the People?"

Roman J. Hoyos, Southwestern Law School, has posted Who Are “the People”?

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined.

The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere.

One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

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