Constituent power: From Schmitt to Kantorowicz—Afterword to the Foreword by Sergio Verdugo

Abstract In his Foreword, Sergio Verdugo presents Schmitt’s account of constituent power as the conventional understanding of this concept. At the same time, he shows that Schmitt’s views are contested and hardly accepted as a matter of convention. Verdugo’s critiques of constituent power are leveled mainly against Schmitt’s (“conventional”) understanding of the concept. If Schmitt’s account is relaxed, various criticisms of constituent power seem overstated. We have good reasons to abandon Schmitt’s conception of constituent power as unlimited and permanently active. Several flaws of Schmitt’s model of constituent power have to do with its failure to account for the contribution of constituent power to world-building. A restless and omnipotent constituent power cannot contribute much to the construction of a public world. Schmitt’s unruly constituent power entraps society in a state of permanent worldlessnes (Arendt) or communitas (Turner). In order to allow for the reproduction of the public world, constituent power has to be limited and discontinuous. A theory of the constitution that is based on Kantorowicz’s account of the corporate body politic sheds light on the legal construction of public space and public time.