Blog of the International Journal of Constitutional Law

Constituent Power as a Circuit of Affections

João Vitor Cardoso, Universidad de Chile

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

This column offers a discussion about moving beyond theoretical abstractions and exploring the tangible manifestations of constituent power in real-world contexts. By distinguishing between defining constituent power and identifying its empirical manifestation, the column then explores how affective imagination influenced people’s perception of an initiative to boost the sovereignty of the Chilean Constitutional Convention. Finally, it proposes reconceptualizing constituent power to shift away from its paralyzing connotations.

  1. Bringing Constituent Power Down to Earth

The concept of constituent power, meaning the ultimate power of the people to constitute the sovereign through collective action, has preoccupied scholars for generations.  Several democratic theorists have engaged in this discussion by articulating a theory of “the people” as the only extralegal variable acting beyond the legal order during “founding moments.” However, little is known about when the ideas (and images) that inhabit the realm of theoretical inquiry touch the ground of political struggles, “once we broadcast them—in the world, and for those who rely on them within the realm of social imaginary.”[1] Theorists often conflate the question of definition—what is the constituent power?—with the question of what counts as evidence to demonstrate its manifestation. But the empirical question—when do we know that a constituent power has been manifested?— depends on how to characterize the manifold stylizations of joint action that allow one to claim to act legitimately on behalf of “the people.” What form might “the people” take? That is, what kind of images in constitutional thinking count as an “extraordinary popular mobilization?”

Carl Schmitt asserts that the most effective method to answer this question would be through “public acclamation.”[2] Further, his contemporary fellows account for signs of popular exhaustion towards the government, followed by a widespread insurrection outside the formal channels of the constitution. From this viewpoint, the identification of a “collective subject” is often portrayed as “a brute fact of historicity,” always to unfold a posteriori.[3] However, as Schweber contends, “the invocation of constituent power is a contestable discourse of legitimation rather than an historical description.”[4]

Either way, treating “the true people” as a virtuous collective agent, many take for granted the embeddedness of constituent power as a catalyst of social emancipation and do not even wonder about more sophisticated theories of power thought of as a plurality of relations across society.[5] Thus, for any approach that aims to bring constituent power down to earth, the first question can be presented as descriptive rather than normative and is related to other dimensions of extralegal or mutually constitutive power. Are there alternative ways of describing momentous political developments that result in the creation of new constitutional orders without relying solely on the idea of sovereignty? One alternative way of formulating such a question is trying to understand, theoretically, how people come to acquire political commitments in particular circumstances. Drawing on Zoran Oklopcic’s critical theory of peoplehood, staying attentive to the subterranean work of the affective register of constituent imagination allows us to keep track of the prefigurative power of other imaginary scenes, not just those dramatized as constitution-making “anecdotes.”[6]

In a materialistic spirit, Rivera-Lugo introduced the concept of constituent power as the transformation of social bonds that allows the awakening of the possibility of political emancipation.[7] In this vein, we might consider whether the transformation of social ties is needed before putting our constitutional imagination in motion. Hence success is dependent on what type of affection circulates within social life. An account of how affective elements become mechanisms for regulating social life, as understood by this materialist impulse, shows us how constitutions can come to constitute a vehicle through which a circuit of affections takes on a palpable emotional loading. Approached in that light, we might question what makes our chances better in considering the kind of emotion a sovereign people produces in particular contexts, and which affections are likely to have a cumulative effect on the emotions of those who invoke its name on the ground. Such a theoretical frame portrays power in a complex way, attending to the “constitutive” role of political affections, and entails assessing purposive political projects as expectant emotions, such as hope and anxiety, that can amplify or diminish the power of constituent power.[8] Indeed, constituent power can be thought of not as a thing in the world, but as a certain way of being affected, particularly through strange mixtures of hope and anxiety, when we are trying to come to terms with a sovereign people or to “constitute” political life.

2. The Affects of Constituent Power in Chile

As I found in my fieldwork on the Chilean constitution-making process in 2022, constituent power narratives can exacerbate long-standing political, cultural, and social divides. The Chilean Constitutional Convention was tasked with managing not only forward-looking emotions but also backward-looking ones. For example, if we examine how affective imagination shaped people’s perception of the far-left deputies’ initiative to dismantle Chile’s democratic institutions, it becomes apparent that what they sought to achieve was to deflate the intensity of collective resentment stoked by a kind of social antagonism that had its roots in the memory of a traumatic event and also to offer a response to the political lockout of the most vulnerable that were the hallmark of decades of the neoliberal regime imposed thereby. But as we relate this rule initiative to broader discourses of fear and anxiety that have circulated since October 15, 2019, the imaginary sovereign performs as a Leviathan, by the internalization of a constantly reiterated image of a social fantasy of immanent disaggregation of social ties, precisely through the narration of crisis and insecurity.

When it steps in, constituent power thus conjures a curious mix of oppression and liberation, depending on from which side of the line it is seen; one side imagines this from the inside; the other from the outside. It bespeaks the promise of self-discovery as the flip side of self-estrangement. Said differently, “the shape of the figure of the people is in the eye of its beholder.”[9] It is comforting to argue that the constituent power has an intrinsic ground that exempts the theorist from displaying any instrumental leverage. While tempting, this would be a hasty conclusion. Constituent power is a vocabulary invoked within real politics. It is not a heuristic device to envision what outcomes would emerge from an ideal situation. It is a form of political communication poisoned by sovereignty, say, the exercise of coercive force. Its invocation does not automatically solve the collective anxieties that spring from deep pluralism, or from the hope that political actors will make good decisions. Doubtlessly, constituent power can be the catalyst of hope. But such hope may be frustrated in the absence of contextually sensitized elements. Therefore, I propose reworking the concept to shift away from its paralyzing and violent connotations, presenting it as empowering and energizing instead of upsetting and exhausting. This may inspire a self-aware effort of turning collective crises and traumas into political resistance and renewal, keeping hope alive.

Suggested citation:  João Vitor Cardoso, Constituent Power as a Circuit of Affections, Int’l J. Const. L. Blog, Jul. 14, 2023, at:

[1] Zoran Oklopcic, Beyond the People: Social Imaginary and Constituent Imagination (Oxford: OUP, 2018) p. 2.

[2] Carl Schmitt, Constitutional Theory (Duke University Press, 2008) p. 131.

[3] Hans Lindahl, “Possibility, Actuality, Rupture: Constituent Power and the Ontology of Change,” Constellations, 22(2) (2015), 163-174.

[4] Howard Schweber, “Constitutional Revolutions: The People, the Text, and the Hermeneutic of Legitimation,” Maryland Law Review, 81 (2022), p. 236.

[5] See Vladimir Safatle, O Circuito dos Afetos (Sao Paulo: Cosac Naify, 2015), on the importance of a theory of affects for a political debate concerning processes of social emancipation.

[6] Oklopcic op. cit., p. 30.

[7] Carlos Rivera-Lugo, Por una teoría materialista del proceso social constitutivo: Más allá de lo constituyente y lo constitucional, In Mauro Benente and Marco Navas Alvear (Eds.), Derecho, conflicto social y emancipación, 175-192 (Buenos Aires CLACSO, 2019).

[8] Oklopcic op. cit., p. 67.

[9] Oklopcic op. cit., p. 43.


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