公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Andrew Arato**
Reflecting on Article V, an amendment of the United States
Constitution, the distinguished English legal scholar, A.V. Dicey,
had no doubt that it pointed to the locus of American sovereignty.
Since, in his view, British parliamentary sovereignty was based on
the capacity of Parliament to act as a constituent assembly, the
metaphorical "assembly" of three-quarters of the states was in
principle endowed, according to him, with the identical sovereign
prerogatives. What probably lies behind this seemingly tortured
interpretation of Article V (derived from John C. Calhoun) is the
correct notion that the consent of three-quarters of the states is
both necessary (both paths of Article V) and sufficient (the
convention path) to amend the Constitution. Of course, unlike
Parliament, three-quarters of the states do not have legislative
power in the United States. Moreover, it is evidently far more
difficult to gain the consent of three-quarters of the states than of
the fifty-percent-plus-one of the House of Commons which can do
anything in Britain except, according to earlier views, change men
into women and vice versa. For these reasons, Dicey depicted the
American sovereign as "a monarch who slumbers and sleeps."
Given the congressional and military constraints used against the
Southern states (without whom there would not be three-quarters
consent!) to ratify the Civil War amendments ending the slave
regime, it is indeed difficult to justify Dicey's belief that the
slumbering sovereign awoke even once during the nineteenth
century. Read today, his remarks point less to a viable model of
* The author was unable to provide assistance with citations, source references, and
editing. Consequently, this article is simply an edited version of the transcript of the
speech presented at the conference.
** Professor, Graduate Faculty of the New School for Social Research. Professor
Arato has lectured throughout Europe, North America, and South America. Professor
Arato's major fields of interest are constitutional thought, Eastern European politics,
twentieth-century intellectual history, and theories of democracy and dictatorship.
Professor Arato has a long list of publications to his name, including Civil Society and
Political Theory and a forthcoming book entitled Revolution, Constitution and Civil
Society in the Transitions.
1740 CARDOZO LAW REVIEW [Vol. 21:1739
sovereignty than to the prison house (or drug) of an amendment
rule that indefinitely blocks the liberation (or awakening) of the
popular sovereign.
No one contested the identification of constitutional
amendments with the locus of sovereignty more energetically than
Carl Schmitt, of the Verfassungslehre. Indeed, constituent power,
for him, is the main identifying mark of sovereignty, but
constitutional amendments and the assemblies empowered by
them (including the British Parliament) are mere pouvoirs
constitué. Amendments indicate an extraordinary competence or
jurisdiction beyond mere legislation, but they indicate a legally
limited jurisdiction nevertheless. In Schmitt's view, what is
particularly important is that amendments that make sense only
within a constitution should not be used to revise the fundamental
character of that constitution, one that it owes to the original
decision of the constituent power, under a democracy of the
sovereign people. At issue is not only the legitimacy of an
amending process used to replace one constitution with another,
an act that Schmitt emphatically denounces as usurpation. Also at
issue is whether or not a constitution restricts its own selfamendment,
the structure of the separation of powers, federalism,
the basic nature of elections, and the amendment itself, all of
which are central to the identity of a constitutional order, are not
or ought not be revisable through mere constitutional amendment.
Note that we cannot be certain whether Schmitt means cannot or
ought not, because, having long disputed the legitimacy of
constitutional review, he does not tell us how unconstitutional
amendments would be invalidated. He seems to be relying on
enforcement by the sovereign, in a democracy the people, who
would not allow, for example, the Parliament to turn Britain into a
soviet republic by a vote of fifty-percent-plus-one. True enough.
But it is hard to see how the same form of enforcement could be
relied upon if the amending power were used to alter the
separation of powers or the enumerated rights.
As is well known, Schmitt is hardly an enemy of significant
constitutional change. All such change, however, according to
him, must fully resemble the original act of constitutional creation,
and requires the constituent power to reassert its entirely
unlimited prerogatives. This is possible because Schmitt's
constituent power is not a slumbering sovereign, but is an everpresent
dynamic reservation (kept alive, as Andrew Kalyvas
explains, by legitimacy, or perhaps by the third shape of the people
"next to the constitution") that is not exhausted in its own
creation. To be sure, when the sovereign returns, it does not do so
in an a priori established form. It is in no way bound to the model
of a freely elected constitutional assembly, or even to its own prior
mode of appearance. This is so because, as the only legitimate
source of all legality and institutions, it cannot bind the constituent
power (as legibus solutus). The constituent's power and actions
will, by definition, be legitimate and extralegal (not illegal, because
that would presuppose a valid legality that cannot exist when the
pouvoir constituant commands the stage!). As to possible forms of
appearance given to popular sovereignty, Schmitt seems to insist
on mass mobilization and, in line with his conception of
democracy, popular identification with the assembly or person(s)
acting in the name of the people. While he sometimes admits that
the appearance of the constituent power can be easily mistaken,
and even falsified, he is evidently not disturbed by the charge of
potential dictatorship. Not only does he consider dictatorship and
democracy compatible, but he believes dictatorship is the only
alternative to anarchy or civil war when the law falls silent, or
when people find themselves between two legal orders. The
constituent power can act only through sovereign dictatorship.
It may seem overly polemical to link contemporary American
liberal democrats like Bruce Ackerman, Akil Amar, and Sanford
Levinson to the Schmittian doctrine of the constituent power, with
all its logical implications. While there is little question of actual
influence, I maintain only that these authors have come to
strikingly similar conclusions through their critiques of the role of
Article V in the American constitutional order and their
reflections on the overlapping American and European doctrines
of popular sovereignty. Sieyès's distinction of the constituant and
constitué, in fact, has been anticipated and developed by the
American tradition in the form of the action of the people
counterposed to the acts of governments. Constitutions, according
to Thomas Paine, should be acts of the people constituting a
government, and not acts of governments. And lest we think that
this conceptualization characterizes only the radical wing of the
American revolution, we should note that it reappears in Madison,
Hamilton, and even John Marshall's Marbury ruling, where it is
used to justify judicial review protecting the work of the people
against government and all of its branches. To be sure, what
distinguishes the American conception is that here, the people as
the constituent power are not said to be in the state of nature
(Arendt), but rather assembled in a specific institution, the
popular convention. In the view of the advocates of the people's
role in amendments, like George Mason (and Thomas Jefferson),
Article V indeed incorporated this very distinction between people
1742 CARDOZO LAW REVIEW [Vol. 21:1739
and government in its duality of two fundamental methods of
amendment: reliance on Congress or on a newly elected
The distinction between "American" and "European" views
of the people may turn out to be a crucial difference for my
comparison of American authors with Schmitt. But whenever the
institutional requirement is forgotten by American authors, or is
relativized by an arbitrary postulate of the institutional
preferences of specific interpreters, the distinction between the
two conceptions (American and European) is threatened. This is
what tends to happen in the work of the three authors under
analysis (Levinson, Ackerman, and Amar), perhaps to different
degrees. To be sure, their views are not identical to that of
Schmitt. None of them contests the legitimacy of using Article V,
or even its hitherto entirely dominant congressional path (i.e., the
"governmental" path), to enact major constitutional change. They
obviously have no wish to contest the validity of the Bill of Rights
(only Levinson seems to consider the possibility that these ten
amendments entailed mere interpretation rather than revision), or
women's suffrage, or the amendments dealing with the mode of
electing the president. But they are deeply disturbed by the
inertness of Article V with respect to major constitutional
problems of our day, and this leads them to make efforts to revive
the slumbering sovereign through their common doctrine of
extraconstitutional amendments. Evidently, all three have serious
difficulties with the pattern of constitution-making through judicial
interpretation and transformative judicial appointments, though
only Ackerman says so explicitly, in line with his view of the
"preservationist" character of judicial or constitutional review. In
this, Schmitt might have agreed, although, rejecting judicial
review, he assigned the role of preserving the constitution on
behalf of the democratic sovereign to a political agency supposedly
more directly linked to the people-namely, the Weimar President
(der Hueter der Verfassung).
Presidentialism, to be sure, also makes an important
appearance in Ackerman's writings, as we will see, but is not
stressed in the work of the other authors. What ties all three
recent American advocates of an unbound or awakened
constituent power to Schmitt is, above all, their analysis of
legitimacy and legality. More legalistic than Schmitt, all three
insist (absurdly in my view) that Article V is not exclusive, because
it does not say that its (two or four) procedures are "the only"
valid methods of constitutional amendment. According to AMA's
twist, Article V as a whole (apparently including the convention
formula, itself a mere constitué, according to the Schmittian
conception, but not, as we have seen, the Jeffersonian) refers to
acts of the government alone, but does not exclude constituent
activity of the people themselves. This argument, of course, is true
for popular revolutions, which cannot be forbidden by
constitutions, but cannot sustain the legality of the particular and
nota bene different extraconstitutional avenues that the three
authors posit. Ackerman makes this completely clear and frankly
refers to two great complexes of radical constitutional change, the
Reconstruction and the New Deal, as extralegal (though not
illegal-solely because of the missing word only?). The normative
base of both large-scale revisions was, in his original conception at
least, the legitimacy derived from public participation and crucial
elections. In Ackerman's view, the Reconstruction and the New
Deal are justified not so much by the founding document, the
United States Constitution, as by the actions of the founders, who
themselves rose above legality on the bases of the democratic
legitimacy they claimed ("We the people") and achieved (at least
in the ratification process).
Levinson uses the precedent of the founding even more
explicitly. He rightly notes that the Framers included in their
amendments the model of the federal convention, which expressed
their actual practice. In line with the fears of all those who have
successfully fought against the use of this model, Levinson
proposes that such a convention should treat itself as sovereign-
implying that the forbidding ratification requirements of the rule
be replaced-imitating the illegal actions of the Framers
themselves. Such a course, too, would require that the scarce
resource of legality be compensated by legitimacy. This would
happen, presumably, because of the democratic credentials of the
convention, though we must note that the major Framers did not
earn their authority in the summer of 1887 in Philadelphia.
Finally, Akil Amar, who postulates the full legality of the
actions of the Framers (in my view, on implausible grounds), gives
us a proposal that departs from established legality far more
dramatically, in spite of his protestations to the contrary. Whereas
Levinson bases his proposal on constitutional text, as well as the
precedent of the Framers, and Ackerman relies on three historical
precedents, as well as the role of a historically continuous Supreme
Court, to uphold the constitutions produced by each, Amar derives
his proposal from his reflection on the unambiguous meaning of
popular sovereignty and majority rule in our founding documents.
He appeals to what Southern constitutionalists used to call "king
numbers," and affirms that a constitutional amendment introduced
1744 CARDOZO LAW REVIEW [Vol. 21:1739
in a petition by a majority of the people would necessitate the
calling of a federal convention, whose product would become
unquestionably valid upon ratification in a national referendum, in
which each citizen had one vote in a single national district. It
does not overly concern him that such a rule has never existed in
the United States as a whole, and that the Constitution does not
even mention national referenda of any kind. Here we have an
instructive French procedure-the only one, in fact, that resembles
Amar's proposal based on majority rule and popular sovereignty
expressed through referenda. General de Gaulle (another
Schmittian), in 1962, amended the constitution of his own Fifth
Republic by calling a successful referendum to enact by simple
majority the direct election of the president, using a "rule" then
unknown in that constitution. Yet the constitutional context in
France was markedly different. Referenda existed in the
constitution, without an explicit proviso that they could not be
used for purposes of making amendments. Moreover, in a
nonfederal state with a given referendum rule, it was not at all
ambiguous who should be consulted in a referendum under the
name of the people, and according to what procedure. In the
United States, however, these issues cannot be left undecided. But
who should make the decision and under what rule? Be that as it
may, it is obvious that Amar cannot hope to have his opinion
taken seriously, unless he, too, can show how legitimacy (of the
plebescitary democratic type) can compensate for the questionable
legality and arbitrary nature of his proposal.
To fully demonstrate the dubious legality of the three
proposals would unnecessarily involve us in a conceptual morass.
What the three authors do not seem to understand (in their
original proposals, at least) is that anyone who says "legal
revolution" must be able to say "political revolution" as well.
Schmitt, at least, was fully aware of the politically revolutionary
implications of his doctrine of constituent power. He also knew
that political revolutions risk dual power and civil war, not to
mention dictatorship, which he understood as the other side of the
constituent moment itself. These three authors are misled by the
precedent of the founding, when the Framers were supported by
the strongest part of the political class and faced a political power,
the Confederation Congress, without financial or military
resources. Ackerman knows and yet disguises the political
violence surrounding the passage of the Fourteenth Amendment.
Evidently, however, if anyone would be rash enough to follow
Levinson's or Amar's proposals, he would face the prospect of
resistance by wealthy and armed states (and populations), and thus
the specter of dual power (Congress versus the convention in
Levinson, and the states versus the convention in Amar) and civil
Ackerman alone-probably because of his debt to Arendt-
has sought to develop his ideas in the face of such dangers, and to
reformulate his conception of extraconstitutional amendments as a
program of "radical reform." He now recognizes the originally
Arendtian idea that the constituent power can avoid being in the
state of nature through either legal or institutional continuity. It is
in this context that he seeks to take his leave of Schmitt, without
fully understanding the relationship of Schmitt's thought to the
Verfassungslehre that Ackerman cites as advocating pure power
politics. In the process, however, he revives another crucial
dimension of Schmitt's thought: hyper-presidentialism.
According to Ackerman, the politics of extraconstitutional
amendments can be handled, to the extent that some inherited
institutions with strong political legitimacy have gained electoral
plebiscitary support for significant, extra legal revisions of their
constitutions. This happened when the effort of the Framers was
built on some of the strongest states; during the Civil War, when
the agent of change was Congress; and in the Jeffersonian
revolution and the New Deal, when presidentially-led mobilization
played the central role. Of course, in the second case, the Civil
War and the dictatorship that the new conception sought to avoid
were presuppositions of successful constitutional change.
But in the other cases, these twin dangers were avoided (in
spite of oppositional narratives) and the United States
Constitution was significantly changed-in the material sense of
Kelsen, at least. In Ackerman's conception these three successful
cases of structural reform are tied together by the role of
presidentialist charisma; even the success of the Philadelphia
Convention, in his view, would have been impossible without the
leadership of the man on horseback, General Washington.
Pushing this logic further, Amar's and Levinson's conceptions
could be saved politically if we postulate charismatic legitimacy of
a popular plebescitary leader undergirding the revolutionary legal
process. We have seen that, in recent times, only General de
Gaulle has been able to change a constitution by a method that
comes close to Amar's plebescitary proposal. In recent writings,
Ackerman, at least, has explicitly and unhesitatingly adopted a
model of presidentially-led constitution-making, recommending it
to East and Central European constitutional politicians-above
all, Presidents Walesa and Yeltsin. Both presidents tried to act
accordingly, but only Yeltsin succeeded, with disastrous
1746 CARDOZO LAW REVIEW [Vol. 21:1739
The American proposals that come close to Schmitt in their
attempts to revive the constituent power outside the limits of
legality thus face a choice: revolution based on a new legitimacy,
or extra legality led by an existing legitimate institution. This
dichotomy is present in Schmitt in two interesting ways. The first
is his distinction between one type of revolution, which replaces
one constituent power with another (Verfassungsvernichtung), and
another type in which a continuous constituent power replaces one
constitution with another (Verfassungsbeseitigung). To be sure, in
neither case is any institutional continuity postulated with the
former regime. That continuity surfaces in the second relevant
distinction in Schmitt, between sovereign and commissarial
dictatorship. In the regime of exception based on the
commissarial, ultimately Roman, model, one institution of a
constitutional regime is given the power to temporarily act outside
of constitutional limits. As is well known, according to Schmitt, in
the Weimar Republic it was the presidency that could, under
specific circumstances (and within never clarified limits), assume
such extraordinary and largely extralegal powers. Schmitt,
however-at least until the final crisis of Weimar-prohibited the
emergency dictator from innovating to materially change the
constitution in the name of which his own suspension was to be
justified. When, during crisis, the legitimate dictator changes the
constitution, we encounter the occurrence of the auto-golpe-the
coup of the state against itself, or rather, of part of the government
against its other parts.
My friend, Janos Kis, has developed an impressive scheme to
account for the legal nature of the democratic transitions that
follow the model of legal continuity. According to him, reform
presupposes continuity in both legitimacy and legality, whereas
revolution involves a break in both of these dimensions. In this
conception, the regime changes in Spain, Poland, Hungary, and
South Africa are best understood in terms of a break in
fundamental political legitimacy in the context of legal continuity.
Evidently, this helpful and convincing scheme leaves us with one
additional possibility: continuous legitimacy and a break in
legality, one that Kis was not able to concretize. With the help of
my students from Russia and Peru, in particular, I have come to
the conclusion that Fujimori's auto-golpe, as well as Yeltsin's
imposed constitution of 1993, fully satisfy the prerequisites of the
missing fourth cell in the model. In Ackerman's depiction, at least,
three major constitutional changes in American history seem to fit
the type of auto-golpe as well. In his effort to stay away from
Schmitt, Ackerman out-Schmitted him, to the extent that he
postulated the desirability of a presidentially-led, plebescitary
model of extralegal constitutional change.
While Schmitt, in the Verfassungslehre, asserted the possibility
of the constituent power being exercised by a Bonapartist
dictatorship with which the people identified, he did not
recommend this model in the context of extralegal presidential
leadership. (Given the political differences, and the different
outcomes, of authoritarian auto-golpe and the key junctures of
United States constitutional history, it is well worth contesting
Ackerman's analysis of the relationship of legitimacy and legality
in the founding, the Jeffersonian revolution, and the New Deal. If
I were to do so, I would concentrate on various efforts to restore a
torn legality: Madison's in 1787, Marshall's Court after 1800, and
the Senate's and Supreme Court's after 1936.)
Both the similarities to and differences from Schmitt among
the three American authors are instructive. Their populist
interpretation of the American doctrine of sovereignty, and the
belief that a democratic amendment process should resemble the
founding, bring them close to Schmitt's doctrine of the constituent
power, with the attendant possibilities of civil war and dictatorship.
Knowledge of Schmitt's work could have helped them understand
the dangers involved. But because it is the American doctrine of
sovereignty they interpret, the institutionalist understanding of the
people reappears in their works: in Amar's stress on legality, in
Levinson's conception of the constitutional convention, and in
Ackerman's emphasis on elections. The first two, as I have
argued, cannot thereby banish the specter of dual power and civil
war. Ackerman can deal with these dangers, in spite of his
mistaken emphasis on the Civil War amendments, but only by
connecting to another strand of Schmitt's works: the theory of the
president as the lord of the exception. Here, a knowledge of
Schmitt's relevant works and political career would have warned
Ackerman that it is a grave mistake to make the presidency the
source of constitutional innovation. To the extent that Schmitt
also entertained the possibility that the pouvoir constituent could
inhere in a presidential leader through popular identification, he,
too, betrayed the authoritarian, Bonapartist side of his supposedly
populist democratic theory of the constituent power. Those who
follow Schmitt, whether or not they know his theory, compromise
democratic legitimacy that is not attainable, as Hannah Arendt
well knew, outside of both institutions and legality.