Habermas: A Bootstrapping Conception of National and Transnational Constituent Power

This chapter explains Jürgen Habermas’s two distinctive contributions to the theory of constituent power: a ‘bootstrapping’ concept of constituent power, operative in the context of national constitutional democracies, and a ‘dualist’ concept, operative in the transnational context of the EU. Bootstrapping emphasizes the dynamic development of constitutional arrangements over time, which, if those developments evince learning in the direction of increases in deliberative participatory democracy, are seen to confer legitimacy. Dualism highlights the democratic promises and deficits of the EU as a transnational union of federated nation-states that rests ultimately on two distinct sources of sovereignty simultaneously. The chapter also argues that Habermas’s theory responds to deficiencies in other prominent ways of thinking about constituent power, especially the traditional concept of it as an extralegal democratic power of origination and a sceptical concept of it as a retrospective rationalization invoked by juridical actors.