Transcendent nation: The project of a constitutional jury

Transition

The idea that Sieyès did not exclusively reject all forms of direct participation has been put forward by Olivier Beaud and Andrew Arato, who emphasise Sieyès’ discussion of the preliminary constitution. Beaud posits that Sieyès’ idea of constituent power is twofold: it consists of destructive (déconstituant) and constructive

{constituant) moments (Beaud, 1994). The first moment consists of completely unbound negative will, while the second moment relies on democratically established procedures and rules. This distinction is important in order to see the connection between the allegedly radical and representative dimensions of Sieyès’ constituent power. While radical constituent power pertains to negating privileges and oppressive relations, constructive constituent power establishes rules as to how to, among other things, change established rules democratically. Arato underlines how the originality of this idea lies in Sieyès emphasis on how democratic constituent power can be conceptualised between revolution and reform (Arato, 2017). In Préliminaire de la Constitution française (1789a), Sieyès talks about the process of drafting the first Constitution:

The constitution which will be given to France, and which the necessity of circumstances must make provisionally obligatory for all, will be definitive, only after new deputies, regularly delegated to exercise solely constituent power, have it revised, reformed if necessary, and will have given it a national consent which the rigor of the principles demands.

(Sieyès, 1789a, pp. 17-18)

Clearly, for Sieyès, a free people comes into being over time and through a process rather than in a single moment of original creation. He proposes several stages of constitution drafting and maintains that it is important to involve citizens in the process. Arato and Beaud, who identify the importance of this idea for Sieyès’ thought, focus only on the drafting of the actual document of the constitution and the possibilities of increasing participation in it. Yet, this idea of constitution as a process has larger implications for Sieyès. In the foreword to the same publication, Sieyès inquires about what it means to give a constitution to a new people {un peuple neuf) (ibid., p. 16). For the principles proclaimed in the Declaration of Rights and in the Constitution to function, a society needs to be ready and aware of those principles. But those people whom these documents declare to possess civil and political rights have been subjected to “centuries of misfortune” (ibid.). That is why, Sieyès diagnoses, ideas like constituent power emanating from the nation, the abolition of privileges, equality, etc., first assert themselves as “transcendental metaphysics” (ibid., p. 6). When he states that society needs to mature in order to realise those ideas “not as a set of laws, but as a set of principles” (ibid., p. 3), Sieyès is implying that fundamental laws should not only be enforced upon the people but also be internalised and consciously accepted as their own laws.

In this regard, the idea of a preliminary constitution takes up a broader significance in Sieyès’ thought. A constitution conceived in this way envisions the emergence of a free people over time, and it would rely on a system of representative institutions that serve a unifying and an enlightening function but do not replace the active citizenry. Sieyès adheres to the idea of progress as the approximation to the ideal of complete collective freedom. A new people comes about in the process of the gradual maturation of reason which is set off but not limited to the drafting of the constitutional document. In a different text from the same year {Quelques idées de Constitution, applicables à la ville de Paris), Sieyès advances that the category of active citizens, which he initially distinguished from passive citizens, will expand with time. With the help of national education and the formation of new interests, people will be able to see past their individual concerns and acquire a shared concern for social issues (Sieyès, 1789b, p. 21). Thus, for Sieyès, constitutional principles should eventually become reflected in social reality. The idea of a preliminary constitution then speaks both to the possibility of redrafting the fundamental law of the community and to the eventual actualisation of the ideals of equality and liberty in practice. As to what such a constitution might look like - what combination of citizen participation and representative institutions it would involve - Sieyès does not give a clear answer. Nonetheless, he furnishes political theory with an original and lasting picture of constituent power that does not sever its representative and radical dimensions. For Sieyès, the changes propelled by the Revolution do not stop but evolve and influence society over time. This, in turn, means that institutions are not static but should be able to change as ideas do.

The project of a constitutional jury

The Sieyès of Qu’est-ce que le tiers-état?, a mouthpiece of the Revolution, theorised constituent power as the power of a nation to create for itself whatever laws it pleases. In the early years of debates around constitutional proposals, Sieyès developed the position that since the nation establishes its freedom over time, recurring constitutional amendments are required. Finally, after the end of the Reign of Terror, in the years of the Thermidorian Reaction (1794-1795), Sieyès was preoccupied with problems arising in a very different political context, and in his thought, the radical democratic potential of constituent power is replaced by the need to prevent the creativity of constituent power. In speeches made during these years, Sieyès explores how the stability of a constitutional order can be preserved. During Thermidor, Sieyès seeks to put an end to revolutionary experimentation and secure its results: equality, citizen rights, and liberties. If the Revolution itself cannot sustain what it has fought for, what can? Having proclaimed the equality and liberty of citizens, the Revolution resulted in the despotic reign of the few. With this in mind, Sieyès was preoccupied not with the task of democratic founding qua inventing new possibilities but with preserving what had already been established. For the purpose of demonstrating how a constitutional order can preserve citizen rights, Sieyès comes up with the project of a constitutional jury. This project is believed to be the first analogue of the contemporary constitutional court.

Seeking to protect the Constitution and secure its basic principles, Sieyès imagines a power that would exist above and be independent of the political process.

1

For more on the distinction between active and passive citizens, see Sewell (1994, ch. 5).

This neutral power would watch over the legislative process and, if necessary, regulate it to keep it aligned with the principles of citizen rights and equality. This project of a constitutional jury is connected with an earlier debate that Sieyès had with the drafters of the Constitution of 1791 (Jacques Guillaume Thouret and Antoine Barnave) over the question of the royal veto (Pasquino, 1998, pp. 11-13). Sieyès did not support the right of a monarch to veto laws drafted by the National Assembly, arguing that the king is not an elected representative of the nation and thus cannot intervene in the legislative process. In 1795, Sieyès theorises an alternative power to serve this neutral function. A constitutional jury, un dépositaire conservateur de l’acte constitutionnel, judges on the constitutionality of proposed laws and drafts cahier de propositions once every decade as a way of improving the Constitution (ibid., p. 195). He envisions three functions to be exercised by the jury:

  • 1) that it faithfully watches over the safeguard of the constitutional ‘deposit’;
  • 2) that, sheltered from the pernicious passions, it takes into consideration all proposals that may serve to ameliorate the Constitution; 3) that, ultimately, it offers to civil liberties the possibility to appeal to natural equity on those serious occasions when the guardianship of the law will have forgotten its fair guarantees.
  • (Goldoni, 2012, p. 6)

While I will not discuss all the organisational details and implications of such a constitutional jury’, it is important to emphasise how this idea is aligned with Sieyès’ conception of representation. As Marco Goldoni explains, the conception of representation that underlies Sieyès’ idea of the jury is based on the idea of cooperation, rather than conflict. Sieyès thought of public powers as forming a unity of will and not a balance of powers representing different social interests. In this sense, the jury was to fulfil the function of an apolitical elite which guarantees that no political conflict gets in the way of national unity. A constitutional jury’ institutionalises democratic founding and “is presented as the building block of a system that keeps citizens’ active participation to a vital minimum” (i.e. away from constitutional matters and only’ voting for ordinary’ representatives) (ibid., p. 22).

Moreover, this conception of the constitutional jury as taming social and political conflicts is paired with a conception of the nation that transcends the present generation and represents ‘human nature’. Bronislaw Baczko has emphasised that Sieyès changes his take on the nation from 1789 to Year III from a concrete association of 25 million men to an abstract entity extending over successive generations (Baczko, 1988, pp. 98-125). In the speech where he presents his project of the constitutional jury’, Sieyès discusses whether it is advisable to permit a constitutional reform. He defends the belief that amelioration instead of total renovation is best. It is at this point that he suggests that the idea of the nation expresses human nature rather than any particular temporal identity:

Without wishing to dispute with future generations the right to do anything in this respect that suits them, it is permissible, and it is still a duty to remark that the true relations of a political constitution are with the nation that remains, rather than with such passing generation; with the needs of human nature, common to all rather than individual differences.

(Bastid, 1939, p. 35)

What is this nation that remains? Marcel Gauchet theorises this as the two bodies of the people: the actual people and trans-temporal or constituent people (Gauchet, 1995, p. 42). The appearance of the transgenerational nation and the constitutional jury in the same text is not accidental. Sieyès here conceptualises positive achievements of the Revolution and speculates how the values of citizen rights and liberties can be practiced. Once identified, rights expressed in the Declaration of the Rights of Man and of the Citizen need to be safeguarded and perfected by the knowledge and experience of the centuries (7w lumières et l’expérience des siècles1). If these rights pertain to human nature itself, then their bearer can be conceived as an atemporal subject that transcends conflicts and differences.

Thus, over the course of the Revolution, Sieyès substantially changed his views on the principle that constitutes a free people. In the initial stages of the Revolution, characterised by the conflict between the immanent organisation of social relations and the status quo political system, he attributed revolutionär}' potential to the Third Estate. For it was the Third Estate that manifested itself as the critical subject in the act of the negation of the old social, political, and legal order. Thus, in Sieyès’ earlier texts, a free people is constituted by the principle of radical conflict. In contrast, the conception of the nation that operates in Sieyès’ later texts is predicated upon the assumed universality of human nature (as shared by the citizens of the nation-state and, most importantly, as interpreted by the jury). It posits that basic rights and liberties need to be protected from political conflict; the idea being that the people’s freedom is ensured when constitutional change is restricted to a special constitutional organ.

This later position of Sieyès prefigures what today is framed as legal constitutionalism. According to legal constitutionalism, the proclamation and protection of individual rights and constitutional limits to power are definitive hallmarks of democracy. Constitutions are considered primarily to be legal documents that enshrine fundamental rights. The protection and interpretation of these fundamental rights are assigned to a counter-majoritarian institution, often a supreme or constitutional court (Bellamy, 2007). The argument for judicial review is usually motivated by counter-majoritarian reasons: majorities can pass oppressive legislation and turn into tyrannies. Additionally, there is an assumption that the law-making process needs to rely on the pre-established definition of rights to obtain guiding values. Rights themselves in this model are understood in a legal and not a political way and allow for little democratic contestation over their content and applicability. The role of interpreting the Constitution and the rights is assigned to judges who are thought of as standing above the political

Abbé Sieyès 67 process. In this framework, constituent power is an elusive concept; it never fully emerges to challenge the constituted order and oftentimes “the question of constituent power simply does not arise” (Dyzenhaus, 2007, pp. 129-130). Pasquale Pasquino frames Sieyès’ theory as the foundation of this framework. He praises Sieyès as the father of modern constitutionalism who explicated major concepts essential for modern democracies (Pasquino, 1998). Sieyès’ influence is most noticeable, for Pasquino, in how his theory of the constitutional jury later became central for many constitutional regimes. Developed later in Sieyès’ career, this theory frames the constitutional jury not only as the guarantor of the rights of human nature but also as the body that will defend them from the perils of politics (Pasquino, 2007).

 
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