Constituent Power and Public Opinion

Abstract

When addressing the laws that matter in a state, Rousseau argued that legislation matters less than customs and especially public opinion. The latter is the genuine constitution of the state, he argued, and it ‘gathers new force’ day by day (Rousseau 1762: book II, chapter 12). His assessment of public opinion reflects the importance it came to have during the seventeenth and eighteenth centuries. Public opinion refers to the third conception of constituent power, a power that exists ‘beside’ the constitution. Unlike the ideas of constituent power being a power above and outside the constitution and a power within the constitution, it concerns less the constituting of the juridico-political order than the ‘unorganized’ forms of politics that take place in (civil) society (Schmitt 1928: 243ff; see also Heller 1934: 201f; Kalyvas 2008: 178ff). As Schmitt stressed, public opinion cannot ‘permit its transformation into an official jurisdiction’ if it is not to lose its character as public opinion (1928 [2008]: 275). This paradoxical quality of public opinion is nowadays often seen as the most interesting feature of this form of constituent power because it seems to promise some way of not getting stuck in the problems of the constitutionalist and revolutionary interpretations.