The “All Affected Interests Principle” (AAIP) and the related “All Subjected Principle” (ASP) articulate principles of political legitimacy that can serve as potent instruments for evaluating the legitimacy of non-state institutional orders. However, while both are useful for evaluating the legitimacy of already-existing institutional orders, many of most important democratic legitimacy failures of our age arise not only from the undemocratic character of already-constituted orders but also from the fact that in many key domains we lack any institutionalized capacity to address the urgent collective action problems we face. How can such institutions be established in a democratically legitimate way, as an exercise of democratic collective agency? The chapter takes a historicizing turn, arguing that AAIP and ASP creatively retrieve and reconstruct old ideas in the history of democratic thought, liberating them from the presupposition that they can only be actualized within the territorial boundaries of the state. It then argues that we can reconstruct the concept of constituent power as a form of democratic agency to show how democratically legitimate sites of binding collective decision beyond the state can come into being.

Constitutional theory in democratic countries has traditionally postulated the existence of a sovereign people endowed with the authority to enact a constitution. An influential view going back to Sieyès claims that the constituent power of the people is legally unlimited. The ability of the people to enact a constitution is supposed to be fully disconnected from positive law. This notion, however, is seriously flawed. The idea that a legally omnipotent people, working its will at the constitutional stage, is the fountain of positive law makes no sense. Although the idea can be used rhetorically in some justificatory contexts to support valuable institutional arrangements, it also raises a number of pragmatic concerns. All things considered, our theoretical and political discussions would be more fruitful if we certified the death of that concept.

In early May, as the deputies from all three Estates came to Versailles for the scheduled opening of the Estates General they carried with them cahiers enjoining them to reform the constitution in broadly similar ways. One major matter that divided them was the question of how the deputies would meet and vote. Deputies from the Third Estate came determined to pursue common meetings of the three orders with matters decided by a vote by head. Noble and Clerical deputies were split on the issue, but a majority in both orders carried cahiers encouraging or requiring them to seek separate meetings and a vote by order. The electoral regulations sent out by the king in January had not settled which form would prevail. From the very first meeting of the Estates General, the orders entered into a prolonged stalemate as the Third Estate refused to conduct business without first verifying all deputy credentials in common in the main meeting hall and the Nobles insisted that credentials be verified separately by each order.