Constituent Power as Body : Outline of a Constitutional Theology

The article attempts to contribute to the project of a political, or constitutional, theology conceived by Carl Schmitt, while criticizing Schmitt's own accounts of sovereignty and constituent power. It is argued that Schmitt consistently advocated an immanent view of constituent power, namely, a view of constituent power as permanently present within and exercised by the community. The article proposes socio-theoretical, historical and normative arguments against immanent models of sovereignty, which are found to be inconsistent with individual autonomy and rights. An alternative model according to which constituent power vests in the absent, corporate body of the group is developed. Constitutional moments such as declarations of independence, revolutions, constitutional reforms, elections, impeachments, general strikes, amnesties, referenda and states of emergency are analyzed and construed as episodes of incarnation of an otherwise absent authority. The article ends with a critical assessment of Ackerman's and Negri's constitutional theories