Constitutional futures and the South African demos: Time for some univocal sovereignty?

Abstract

This article engages and extends the proposition that the debate on constitutionalism in the postcolony should restore the sovereignty of the demos to a central position. The notion of a unified South African demos is contested, but the arguments against working with the presently constituted unified demos are not overwhelming. With democratic sovereignty as the key focus, the question is how the demos’ lifeblood of present consent can be injected into the current South African constitutional order. Drawing on Grewal & Purdy’s development of Tuck’s reconstruction of original constitutionalism, the article presents six variables for understanding democratic self-rule over time: unified and splintered sovereignty; univocal and multitudinous constitution-making; popular authorship; and present consent. Taking into account Arato’s post-sovereign model of constitution-making, the article argues that South Africa’s constitutional order may be leaning too far in the direction of splintered sovereignty, multitudinous constitution-making and a preoccupation with the act of founding. Instead, the unified sovereign, univocal constitution-making and the imperative of present consent need to be firmly placed on the agenda. The article concludes by considering four ways in which the unified sovereign could be brought back into the realm of constitution-making in South Africa.