Notes on an ‘‘Open’’ Constituent Power

I. Introduction

In many ways, the question of constituent power correlates directly to that of democracy, etymologically at least. Constituent power is democracy – the force (cracy) of the demos – in its most raw and unattenuated of senses. It is the moment when a people, a nation, a multitude or a proletariat come forth and overthrow the preceding order. Its force is destructive to the established interests of the constituted order. As such, it presents a negativity of constitution (qua system of ordering). It is both a negation of a constitutional system, where such a move dialectically invites the negation of the negation in the new constituted order, but also a moment of negativity or openness without any necessary end or telos, and it is this second sense of negation that I would like to trace in this article.

The term ‘‘constituent power’’ stems from classical constitutionalism. Emmanuel Sieyes coined the term in the context of the French Revolution. He demanded that the people had the power over the juridical nature of the state – as the substance of the nation they could determine the juridical form that the state should take. ¹ This was the power of constituents – a constituent’s and constituting power. Thus, from the first usage of the term it signified an essential relation between the people and the state. For most legal philosophers, constituent power signified a closed, meaning-giving moment which originates and determines the constitutional structure. ² Constituent power is, thus, the manner in which legal philosophy captures the contingency, openness and creativity of the moment of revolt and renders it as the fixed origin of the constitutional order. Unsurprisingly, such a usage is less than satisfactory for critical (legal) theorists and the post-structuralist left. This article seeks to draw out a number of critical responses to the traditional characterization of constituent power. I will suggest that each of these philosophers seek to think an ‘‘open constituent power,’’ although none but Antonio Negri would use such terms. The article will do so through two themes: the question of the ‘‘subject’’ of constituent power, and the question of its ‘‘power.’’

II. The Subject of Constituent Power

In traditional democratic constitutionalism the people is the subject of constituent power. From the Huguenot constitutionalists, throughout the canon of popular sovereignty, it is the people’s unity which gives the power of self-legislation. In response to this hegemonic idea of the people, Paolo Virno refuses to accept it as the subject of constituent power. He explains the idea of the people through Hobbes:

The concept of ‘‘people’’ in Hobbes … is tightly correlated to the existence of the State and is in fact a reverberation of it: ‘‘The people is somewhat that is one, having one will, and to whom one action may be attributed; none of these can properly be said of a Multitude. The people rules in all Governments,’’ and reciprocally, ‘‘the King is the People.’’ ³

This identity of people and King occurs when the commonwealth is constituted from the state of nature, the monarch gives unity to the people through their subjection to him. Because of this identification between the people and the sovereign, Virno argues that as a concept for political mobilization, the people does not provide a useful way of thinking about constituent power. Instead, ‘‘the people’’ pre-determines the movement, fixing the state as its destiny. Ultimately, the concept of ‘‘the people’’ acts as a centripetal force – that is a force that pulls distinct entities towards a center, thereby gathering them into one. ⁴ ‘‘The people’’ leads to coalescence of interests and operates to gather the multiplicity of the many into a unity under the sovereign. ‘‘Before the State, there was the many; after the establishment of the State, there is the One-people, endowed with a single will.’’ ⁵

Before moving to consider the multitude, with which Virno replaces the people, it is useful to pause a moment on the necessity of this characterization of the people. Both Virno and Negri share a certainty that the people is a grounded unity under the sovereign, for which they cite Hobbes. However, we could contrast this with the recent work of Ernesto Laclau. Laclau develops the idea of the people as generated by the linguistic practice of counter-hegemonic mass movements. Populism, as the approach which emphasizes the people as the constituent subject, is not ‘‘a type of movement … but a political logic.’’ ⁶ The people, he insists, is constructed when particular social demands (those of workers, feminists, indigenous peoples, etc.) begin to gather together in a chain of equivalence, under the moniker of the people. Laclau accepts the charge that this is the gathering of a unity, but refuses the identity of this unity with sovereignty. ‘‘The heterogeneity of the demands that the popular identity brings to a precarious unity has to be irreducible.’’ ⁷ The heterogeneity, and not the unity, is irreducible. Furthermore, this unity is nominal rather than conceptual. In other words, the people is a ‘‘floating signifier,’’ capable of being filled by the groups that claim it. Certainly this signifier exercises a gravity (force) of its own, but as a nominal unity the people cannot ground the sovereign unity as it does in the Hobbesian paradigm. Laclau’s people is something to be generated in counter-hegemonic struggle rather than something given in the constituted power.

Instead of the people, Virno looks to the multitude as an organizing political concept. Unlike the Hobbesian people’s centripetal force, the multitude operates as a centrifugal force, pushing away from the center. It starts from that which is held in common, and through individuation, generates a plurality of perspectives and trajectories. Reading Spinoza, he suggests that

the multitudo indicates a plurality which persists as such in the public scene, in collective action, in the handling of communal affairs, without converging into a One, without evaporating within a centripetal form of motion. Multitude is the form of social and political existence for the many, seen as being many: a permanent form, not an episodic or interstitial form. ⁸

For Virno, this is not simply a matter of rejecting unity as totalitarian and celebrating multiplicity in some post-modern fashion. He tells us that the multitude needs a unity, however, the site of this unity is displaced: ‘‘this unity is no longer the State; rather it is language, intellect, the communal faculties of the human race. The One is no longer a promise [of a people united under the state], it is a premise [a unity given from that which we share].’’ ⁹ Unity (now constituted as that which is held in-common) is the precondition from which the many individualize. With the multitude as the driving force behind constituent power, it becomes a principle of political organization that leads away from the state, away from sovereign power.

Virno and Laclau’s disagreement about the people and multitude is a useful starting point precisely because it sets out the stakes of the question. For Laclau it is a matter of generating new hegemonic groups operating within a political chain of equivalence, whereas for Virno it is a question of operating on the in-common and investigating the power of labor in a neo-liberal hegemony. In both, therefore, the determination of constituent power’s subject is nothing less than the attempt to think of what is possible in the constituent moment. Giorgio Agamben’s framing of the question of the people demonstrates precisely this. In Means Without End, he suggests that ‘‘the people’’ is not the simple and unitary entity that Virno and others describe. For Agamben, the people contains a crucial fracture.

Any interpretation of the political meaning of the term people ought to start from the peculiar fact that in modern European languages this term always indicates also the poor, the underprivileged, and the excluded. The same term names the constitutive political subject as well as the class that is excluded – de facto, if not de jure – from politics. ¹⁰

The people is not simply a monological concept. It entails a constitutive rupture between the denigration of ‘‘the common people’’ and legitimation of the sovereign order. For Agamben, these two senses of the people entail

a dialectical oscillation between two opposite poles: on the one hand, the People as a whole and as an integral body politic and, on the other hand, the people as a subset and as a fragmentary multiplicity of needy and excluded bodies; on the one hand, an inclusive concept that pretends to be without remainder while, on the other hand, an exclusive concept known to afford no hope; at one pole, the total state of the sovereign and integrated citizens and, at the other pole, banishment … of the wretched, the oppressed, and the vanquished. ¹¹

The oscillation between the people of sovereignty and the common people corresponds to Agamben’s rendering of biopolitics. ¹² The work of sovereignty, then, is to eliminate bare life by generating a people without biopolitical fracture – that is a people that does not include within it a fundamental exclusion, an impossible communion. ¹³

This fractured people ultimately leads to Agamben’s dismissal of the thought of constituent power, as we will see in the next section. However, there are others who make a similar move of differencing the people from itself, without ultimately dismissing the moment of constituent rupture. Jacques Rancière identifies the people as the subject of politics, but politics itself is given a very different meaning. It ‘‘is not a matter of ties between individuals or of relationships between individuals and the community. Politics arises from a count of community ‘parts’, which is always a false count, a double count, or a miscount.’’ ¹⁴ In Rancière’s analysis, the question of ‘‘who counts’’ and ‘‘who is counted’’ is constitutive of the established order. However, every count (qua claim to totality), by its nature will constitute an exclusion. Yet the counting itself is not politics, but rather a ‘‘police order.’’ Politics occurs when those who have been excluded rupture the given order. Rancière’s is not a liberal paean to ‘‘inclusion,’’ it is not a plea for the poor to be ‘‘considered’’ in policy making. Politics is not the everyday intrigues of Westminster or Washington. Rather, it is an occurrence that takes place when the excluded come forth and interrupt their exclusion by asserting their equality. ‘‘Politics exists when the natural order of domination is interrupted by the institution of a part of those who have no part.’’ ¹⁵

For Rancière the people is precisely not all-subjects-under-the-sovereign, it is the part of the populace that finds no part in the everyday order. The people is thus the name of a truly political subject that emerges occasionally. It is the remainder left over after the fundamental exclusion, and politics occurs when the excluded part comes forth and claims its title (the people). This exclusion can be associated with the question of poverty. The poor ‘‘are simply the constitutive wrong or torsion of politics as such. The party of the poor embodies nothing other than the politics itself as setting-up of a part of those who have no part.’’ ¹⁶ In the nineteenth century, Rancière explains, this conflict between the rich and the poor took on a familiar and direct visage: elites and the unwashed masses, experts and ignorant fools. However, today it becomes far more subtle. In managerial or biopolitical society, ‘‘there are only parts of society – social majorities and minorities, socioprofessional categories, interest groups, communities, and so on. There are only parts that must be converted into partners.’’ ¹⁷ This conversion of everyone that is relevant into partners hides the fundamental exclusion: Certain discourses, demands and subject-positions are rendered already irrelevant. The position of the poor is rendered only through the language of welfare and intervention, the market and labor (in the sense of alienation rather than organization), and order and the police. This generates populations that do not fit the specific logics of these interventions. These populations, for Rancière, are counted only by way of not finding a place in the sensible and ‘‘rational’’ political sphere. Thus, Rancière insists in his fifth thesis on politics:

The ‘‘people’’ that is the subject of democracy – and thus the principal subject of politics – is not the collection of members in a community, or the laboring classes of the population. It is the supplementary part, in relation to any counting of parts of the population that makes it possible to identify ‘‘the part of those who have no-part’’ with the whole of the community. ¹⁸

The people are an-archic, in the sense that they exist ‘‘only as a rupture of the logic of arche [origin], a rupture of the logic of beginning/ruling.’’ ¹⁹ Rancière emphasizes that this is a structural difference, the people as supplement (the part of no part) are precisely not just another part of society. Rather their supplementary character means that all new claims to political totality simply reproduce a new supplement. ²⁰

Crucial to each of these critical responses to the question of the subject of constituent power, is an attempt to escape the limitation of a unitary subject, whose presence and meaning could be guaranteed. In other words, each of these thinkers seeks to escape the liberal concept of the people as given in the rule of law, the republican conception as a founding presence, and the traditional communist attempt to lead the proletariat through the party. When unity is presented, it never binds the people (or multitude) together in a manner that might be policed. This eschewal is an attempt to escape the figuring of a unity that could be co-opted as an origin story for a constituted order. Aside from this refusal, each philosopher works towards his own unworked and multiple collective. But these collectives of revolt operate on different levels: for Negri and Virno the multitude is a social being-against, for Laclau the people is a political chain of equivalence within the symbollic, with Agamben we find an ontological or onto-theological coming community, ²¹ and for Rancière the people is a political operation of an aesthetic rupture. Rather than try to choose between these ‘‘models’’ or even synthesize their incommensurable structures, I suggest that we think about both their historical and strategic significance. To do this, we might turn to the nature of the power itself, and stage a three-way debate between Negri, Agamben and Dussel.

III. Constituent Potentia or Potestas

In romance languages there are two terms for power: in Latin potentia and potestas: in Italian potenza and potere; in French puissance and pouvoir, in Spanish potencia and poder. In English these are usually simply translated as ‘‘power,’’ but we might begin distinguishing them as ‘‘power-to’’ or potentiality and ‘‘power-over.’’ For Antonio Negri, this distinction is crucial as it allows him to differentiate, on a fundamental level, between constituent and constituted power. The nature of the power that they exercise is of different orders he insists. Potentia is the power of the constituent moment. It ‘‘is a radically democratic force that resides in the desire of the multitude and is aimed at revolutionizing the status quo through social and political change.’’ It is ‘‘the force that produces (but cannot be contained within) power and its institutions,’’ ²² and it is ultimately of a radically different order to the power of the constituted order (potestas). Potestas ‘‘refers to the power shaped by and into existing State and political institutions.’’ ²³ Where state and empire hold the power-over their subjects, the multitude are a creative and productive grouping whose power is not captured in the constituted order. Sovereignty is a ‘‘transcendental apparatus’’ which renders constituted power absolute and transcendent. ²⁴ In other words, Negri insists that these two ideas of power are of utterly different orders. Where potentia is creative, immanent, multi-directional and open to new modes of being-in-time, potestas is parasitic, transcendent, disciplining and closed.

Perhaps the best way to trace the difference is to look at the different temporality that Negri suggests is to be found in potentia. At its crudest, in Insurgencies, Negri argues:

Constitutionalism’s claim of regulating constituent power juridically is nonsense not only because it wants to divide this power but also because it seeks to block its constitutive temporality. Constitutionalism is a juridical doctrine that knows only the past: it is continually referring to time past, to consolidated strengths and to their inertia, to the tamed spirit. In contrast, constituent power always refers to the future. ²⁵

Potentia is future-oriented and potestas is past-oriented. But such a crude distinction appears at the outset to be less than helpful as Negri’s is a much more complex temporality. While it may be that constitutionalism, as a question of authority of the constitution, is oriented towards the past, ²⁶ Negri is certainly not saying that constituted power is so simple. For instance, it is marked by what Hardt and Negri call biopolitical production. ²⁷ However, it is the temporality of constituent power that is more interesting for us here.

In Insurgencies Negri uses Machiavelli to frame the temporality of constituent power. In the traditional telling, Machiavelli is a base and ruthless realist who instrumentalizes political power, orienting it towards the conservation of the constituted order. This view sees the prince as an immoral, cunning and violent person who must stabilize his power and repress his subjects implicitly. For Negri, however, Machiavelli is the writer of constituent power who reveals the temporality at the heart of the question. ²⁸ The prince is constituent power, in that he is the figure of creation within the political who does not seek settlement or fundament. As such the manner in which the prince operates (qua time), reveals much of the flux of the constituent moment. He refuses to predetermine or render teleological the production of time, precisely because there is no constitution that he is in search of. Machiavelli is

not the theoretician of a constituent power that wants a constitution – he is a theoretician of the absence of all the conditions of a principle and a democracy; and it is from this absence, from this void, that Machiavelli, literally, wrenches away the desire for a subject and constitutes it into a program. ²⁹

The temporality that Machiavelli reveals is an unclosable openness: ‘‘The prince’s strength [potenza] organizes … the logic of time – but it does so without reaching any conclusion.’’ ³⁰ In other words, constituent power has an open sense of temporality. There is no closure of the constituent moment. ‘‘Constituent power never materializes except in instances: vortex, insurrection, prince. Machiavelli’s historical materialism never becomes, to use modern terms, dialectical materialism. It finds moments of neither synthesis nor subsumption. But it is precisely this rupture that is constitutive.’’ ³¹ Negri rejects the idea that the constitution is the culmination and truth of the constituent moment. There is no dialectic of constitution-revolution-constitution at play. Rather constituent power entails a slowing and pausing of time, as well as a speeding up and accelerating of events. It is an attempt to operate upon time from within time in a manner which creates. ³²

While Negri is useful in his introduction of the distinction between potentia with its open temporality, and potestas with its tendency to close down and suckle from the creativity of the constituent moment, the dichotomy at times remains stark and pre-emptory. In the Homo Sacer series, Agamben suggests that there is nothing in his idea of constituent power which allows us to escape sovereignty. He argues that the term constituent power, and the thinking that goes with it, has ‘‘to be abandoned or, at least, thought all over again.’’ ³³ Addressing himself to Negri’s use of the term, Agamben insists that any notion of constituent power is ultimately tied to sovereignty by way of the ‘‘ban’’ structure – that is, it is included by way of its exclusion. ³⁴ Thus, while Negri insists that constituent power is of a different order to the constituted power, Agamben suggests that Sovereignty can transcend this distinction. The people as subject of constituent power is also subjected to the constitution. For Agamben, this means that there is nothing in the people that allows us to think beyond sovereign power. Sovereignty consumes the common people’s power, by transposing it into a power to constitute sovereignty differently. He rejects both the sense of the people as constitutive of sovereign power and the understanding of the multitude as constitutive of a different constituent power. The problem for Agamben is that sovereign power contains within itself both the constituted power of the state, but also the constituent power of the people. This is the case because the people’s power is used to generate and authorize the sovereign’s power. As such, Agamben insists that constituent power as it is currently thought does not hold the potential of escaping the trap of sovereignty.

This power to transcend apparent opposite powers is crucial to Agamben’s thought of sovereignty. However, it presents a difficulty for him when it comes to understanding resistance in our time. At the heart of the matter lies Agamben’s fidelity to Heidegger’s critique of the will. Constituent power too often seems to place the willing subject as the point around which the constituent moment is generated. The constituent moment ultimately represents an ‘‘operative’’ potential, that is the possibility of a community constituting itself around its will to constitute. For Agamben, the question is of escaping such a conception of potential. ³⁵ Throughout his writing, he searches for a different ‘‘inoperative’’ conception of politics, a manner of disrupting the turn to the juridical. In his wonderfully careful study of the argument between Negri and Agamben, Kevin Attell identifies the differing understandings of potentia. ³⁶ Agamben’s conception of potentiality (as prioritizing the potentiality not-to be or do), ³⁷ which is loosely Heideggerian, radically differs from Negri’s understanding which stems from his reading of Spinoza. The difference Attell suggests might be reduced to the question of whether Negri’s ever-productive constituent power would be ‘‘free not to work?’’ ³⁸ Constituent power is ultimately the principle of production which subsists in the multitude, it is ‘‘living labor.’’ Attell’s question of whether it could ‘‘rest or pause’’ underlines Agamben’s ‘‘potentiality critique’’ with a deftness. He says: ‘‘if and when … [living labor and by extension constituent power] does [rest or pause], in that interval between working and not working, what is the status of the being who equally can and can not?’’ ³⁹

There is much more to be said about this debate, but rather than rehearsing the problem of potentiality in Negri and Agamben, which has been extensively studied, ⁴⁰ I want to shift focus to examine the work of Enrique Dussel. In particular, I will contrast his view of potentia which presents a very different approach. On a biographical level, Agamben and Negri’s views on power may be located against the backdrop of the radical left in Italy. It is hard to imagine a starker contrast than with the history of Latin American radical politics and liberation theology. Such differences of situation and backdrop should not blind us to the shared questions, and to some extent, the same texts under consideration. ⁴¹ Dussel provides a stark contrast to Agamben and Negri. ⁴² This is evidenced when he turns his attention to them in Twenty Theses on Politics. He begins by agreeing with Negri regarding the splitting of potentia and potestas, while simultaneously insisting that it is necessary to move beyond these terms. ⁴³ For Dussel, there is neither a pure differentiation between these powers, as we find in Negri, nor is there a simple collapsing of the two together in a zone of indistinction, that we find in Agamben. Rather, potentia flows into potestas which seeks to free itself of its relation to potentia. When Dussel says that we must ‘‘go beyond’’ Negri, he means that we must think about the manners in which the constituent moment (potentia) threads through the constituted processes.

For Dussel potentia remains in being, but precisely lacks the actualization that would give it place thereby making it a being-there (this is a more traditional reading of Aristotle’s questioning of potentiality, than Agamben’s). Put simply, potentia is the capacity (faculty or potentiality) of the people which is actualized in the potestas of a constituted order. Potestas is the ‘‘noble vocation of politics’’ if and when ‘‘institutional powers … remain attentive to the demands, desire and complaints of the community, especially the community of victims of globalization, sexism, racism, anti-Semitism, heterosexism, colonialism … [etc.].’’ ⁴⁴ However, such a constituted order may become ‘‘self-referential,’’ that is, it begins to authorize its power based on its own continued existence rather than the underlying potentia of the people. A self-referential potestas is a constituted order that has become enamored with its own power. Crucially, for Dussel, constituted orders tend to produce and perpetuate such a self-referentiality. Miguel Abensour’s reading of Marx is useful here, as it allows us to clarify Dussel’s logic. ⁴⁵ Abensour argues:

[T]he State-form makes itself independent, develops its specific logic … to the point of forgetting in its arrogance the source from which it stems – to the point of turning against the life of the people and crushing all manifestations that do not fit into its perspective. In short there is a structural conflict between the logic of the state on one hand and the logic of democracy on the other. ⁴⁶

In this, democracy is not an organizational structure of states, but the name of a struggle against the State-form. Dussel’s relation between potentia and potestas, however, refuses to see the State-form itself as the problem, or perhaps sunders the arrogance of self-referentiality from the state itself which may still be faithful to the potentia of the people.

The problem for Dussel remains that potentia is the potential of the people, to which the state must remain faithful. However, it does not, in contradistinction to Negri, suggest a ‘‘strength.’’ Thus, Dussel introduces his term hyperpotentia. Hyperpotentia is the ‘‘strength’’ of the people, although ‘‘the people’’ here should be understood through Laclau and de Sousa Santos. The people’s potentia stems from their excluded status. Dussel suggests that gradually, one movement recognizes other causes within their own – Laclau’s chain of equivalence. Feminism sees the position of the female worker or the woman of color. Indigenous movements see their position under capitalism and within the dominant culture. In this way, gradually, the singular demands gather together, without losing their singularity. ‘‘Now,’’ Dussel tells us, ‘‘we can understand that the ‘popular’ is that which is proper to the people in the strict sense (referring to the ‘social bloc of the oppressed’) and which represents the last point of reference and regenerative reserve of politics (hyperpotentia).’’ ⁴⁷

It is not difficult to see the Negrean objection to such a thematization of the relation between potentia and potestas. Dussel himself demands that Hardt and Negri do not correctly situate the people’s potentia, simply eliminating any possibility of a relation between the multitude and constituted power. ⁴⁸ However, perhaps more interesting is the insight that hyperpotentia does much of the work of the multitude’s potentia in Negri. Hyperpotentia subsists beyond the constituted power. It remains creative and generative, even when potestas becomes self-referential, that is, when constituted power loses sight of its proper relation to the people – as the ‘‘social bloc of the oppressed.’’ Of course there are as many differences as similarities here, but what appears in Dussel’s shifting of terms is the possibility of a radical state. ⁴⁹

Dussel’s relation to Agamben is also fraught. He insists that we must move beyond the totalizing biopolitical framework of bare life, the camp and the ontologized state of exception. In particular, he plays with a contrast between the ‘‘state of exception’’ and the ‘‘state of rebellion.’’

Against liberalism’s fetishism of the ‘‘government by law’’ (over and above the lives of the excluded), Schmitt proposed the case of the ‘‘state of exception’’ to show the constituent will that exists behind the law. Agamben continues this line of argument, and so too we hope to develop it to its ultimate conclusion … [T]he people can suspend the ‘‘state of exception’’ through what I will call the ‘‘state of rebellion.’’ In Buenos Aires, the Argentinean people, having been swindled by the World Bank and the International Monetary Fund … took to the streets en masse on December 20, 2001, to oppose a decree that declared a ‘‘state of exception’’ meant to paralyze the mobilizations. Under the slogal ‘‘Que se vayan todos,’’ or ‘‘Out with them all!’’ – in which hyperpotentia reminded potestas that it remains the last instance of power – the government of Fernando de la Ruá was brought down. That is, the ‘‘state of rebellion’’ disarmed the ‘‘state of exception.’’ The will of delegated auctoritas – to recall Agamben’s distinction – ended up being annulled by a prior will: the will of the people, as hyperpotentia. ⁵⁰

For Agamben, presumably, this is a theory of sovereignty and so simply represents another instance of the ontology developed in Homo Sacer. Dussel’s hyperpotentia, like Negri’s potentia, does not escape the ban-logic of law and exception that Agamben sees in sovereignty. However, by emphasizing the ‘‘state of rebellion’’ beyond the state of exception, Dussel disavows the all encompassing (and thanatopolitical) ⁵¹ nature of Agamben’s paradigm. The ‘‘state of rebellion’’ (estado de rebellion) entails an indeterminacy between state (qua constituted power) and state (qua state or condition of being). Where Schmitt and Agamben use this indeterminacy of ‘‘state’’ to underline the manner in which the exception functions to destroy the liberal paradigm, Dussel’s ‘‘state of rebellion’’ unworks the all-encompassing power of indistinction between rule of law and state of exception. Within the exception it maintains the different strands of power (potentia and potestas), beyond legality. Hyperpotentia as the state of rebellion is beyond the state, but itself creates a radically new possibility of a state. Whether this is a continuation of Schmitt and Agamben’s logic, as Dussel suggests, is doubtful. Yet such a quibble does not dispute the power of such an assertion.

The danger of Agamben is that while his ‘‘ban structure’’ utterly negates the possibility of ontological purity, ultimately, by drawing everything towards sovereignty, the state-of-exception becomes an inescapable horizon. Constituent power, as a counter-power becomes sullied by its inescapable relation to constituted power. But in this, a strange purity emerges – the purity of sovereignty as the capturer-of-all-things. Negri also suffers from the problem of purity, but in a much more straightforward way. The multitude is gathered by nothing other than its being-against empire. For Laclau, this is a ‘‘gift from heaven’’ – a mystical category which transcends the otherwise immanent grouping. It is precisely in the starkness of the dichotomy between empire and multitude that Negri’s counter-power gets its purity. Dussel’s constituent power, on the other hand, is messy. It is not always-already damned as in Agamben or always-already guaranteed as in Negri. While potentia, potestas and hyperpotentia each hold a certain inner logic, they constantly slip and slide. For instance, potestas may demonstrate a fidelity to the common people or it may slide into self-referentiality. But this is not to say that Dussel is without problems of his own. In fact, Dussel is perhaps more problematic with his mix of modernist liberation theology and post-structural political theory. But perhaps instead of posing the author as sovereign, a method whereby I could pronounce the best conception of constituent power, I might instead turn to a different question: strategy.

IV. Conclusion

What unites these dissonances within the critical approaches to constituent power is ultimately the refusal of a ‘‘closed’’ idea of the constituent moment. Put otherwise, these views ultimately deny any sense in which constituent power could be pre-structured, pre-determined. Constituent power, in each view (except perhaps Agamben’s) is radically open, creative and fluid. Each (anti-)philosopher refuses the closure of the constituent power in a constituted order, whether this is the self-referential state, the State-form or sovereignty itself. They ultimately see different constituencies, terrains, and modes of being in the constituent moment. In a sense there is an incommensurability between each of the theorizations, although we can see loose alignments. Virno and Negri are perhaps theoretically the closest, unlike the others, to a large extent they share a common project born from a reading of Spinoza with Marx, and the shared background in the Italian autonomist (operaismo) movement. Laclau and Dussel are more disimular in their backgrounds, although in varying ways both of their theories were fashioned in the fires of Latin American radical movements and the subsequent right-wing dictatorships, as well as in relation to the so-called generation of ’68. Neither of them eschew sovereignty with the same virulence as the others. Finally, perhaps Rancière and Agamben are the most extreme. Where Agamben insists that constituent power is entirely consumed by an ontological (at times even an ahistorical) logic of sovereignty, Rancière sees the part of no part as a structural supplement which is bound to reappear in every new iteration of the distribution of the sensible. For Agamben, the possibility of maintaining any differentiation collapses in the ban structure, whereas Rancière sees an absolute distinction which fleetingly reappears through time.

It is perhaps worthwhile to finish by framing these notes on an ‘‘open’’ constituent power in a slightly different manner. Daniel Bensaïd suggested in 2007, that it was important to turn away from ‘‘models’’ of political change and towards questions of strategy. ‘‘Models are something to be copied; they are instructions for use. A [strategic] hypothesis is a guide to action that starts from past experience but is open and can be modified in the light of new experience or unexpected circumstances.’’ ⁵² In Bensaïd’s sense, each of these theorists eschews ‘‘models.’’ However, the danger of reconstructions such as this article is that they become ‘‘models,’’ from which you, as readers, should choose. While it is certainly important to think about the internal coherence of each of their approaches, to understand future moment of constituent power it is crucial that we see them as a series of strategic hypotheses, small wagers as to future organization and activity. Each of these wagers must then be understood temporally, in their historicity and futurity. Each strategic hypothesis is open to the coming to presence of being, open to the radical openness of the future, but also given in a (local) field of the possible, i.e. constructed historically. Negri’s insistence upon the multitude or Dussel’s radical state then become invitations to think about the possibilities of constituent power in Ecuador or Italy, Ireland or Turkey. The entire idea of these disparate ‘‘notes’’ then, is to provoke reflection upon a series of ‘‘strategic hypotheses’’ rather than to provide a synthesized ‘‘model’’ of what is to be done.