Cultural studies and civil society theory purport to be progressive projects, liberatory alternatives to the dominant social order. Yet cultural studies’ concept of “counter-hegemony” only reinforces all the populist assumptions upon which hegemony rests, leaving the state unquestioned. Likewise, for all its talk of “society against the state,” civil society theory also merely entrenches state power, by excluding other logics that might unsettle sovereign claims to legitimacy and universality. In short, both appeal to and uphold constituted power, instantiated in and exercised through representation. Constituted power is the transcendent power of the sovereign subject, but it is a delegated power: it is the result of a prior articulation (in cultural studies’ terms) or mediation (for civil society theory). Constituted power draws its strength from an immanent constituent power that precedes it, and which it claims to represent. Hence the power that a political order exercises is always derivative, and that order is itself the creation of constituent power. In the words of the Abbé Sieyès, who first formulated this distinction in the context of France’s 1789 Constituent Assembly, “in each of its parts a constitution is not the work of a constituted power but a constituent power. No type of delegated power can modify the conditions of its delegation” (“What is the Third Estate?” 136). For Sieyès, the constituent assembly was to harmonize these two modalities of power: to ensure that government was well constituted. But the very notion of good constitution presupposes a distinction between the constituent and the constituted. Indeed, this split is at the heart of what Martin Loughlin and Neil Walker term the “paradox of constitutionality”: that the people, the presumed subject of power, are denied access to it; “the power they possess, it would appear, can only be exercised through constitutional forms already established or in the process of being established” (“Introduction” 1).
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