Popular constituent power, once a concept closely associated with radical critiques of liberal constitutionalism on the left and the right, and with the investigations of such “Continental” topics as political theology, insurgent partisanship, and the sovereign state of exception, has recently become a key concern of Anglo-American democratic and constitutional theorists. As the concept has moved to the center of scholarly debates, it has also become more respectable, the subject of increasingly elaborate attempts to bring it within the fold of liberal constitutionalism itself: popular constituent power has become an important test of liberal constitutionalism’s democratic capaciousness. This has had significant consequences for how its central concept – the constituent people – has been theorized. “As an actor,” Andrew Arato writes, “the people are fictional unless they are redefined in legal terms as the collectivity of citizens or the electorate in which case they become an entity produced by law, rather than the ultimate source of law.” Viewing the people first and foremost as a legal entity rather than exploring their “fictional” status as “an actor” has been a hallmark of much of the recent scholarship on the popular constituent power.

Sovereignty is the ‘boomerang’ concept of Western legal and political thought. For all the best efforts of scholars, politicians, lawyers and citizens to consign it to oblivion, sovereignty always returns, typically with a vengeance. The more its normative and explanatory force and its political valence are challenged, the more ubiquitous the concept of sovereignty seems to become. Unsurprisingly then, despite the recent intensification of supranational and transnational patterns of legal and political authority, once believed to be one more – and perhaps final – nail in sovereignty’s coffin, we stand today at yet another critical juncture, with sovereignty flying back in our faces.

“Sovereignty” was not always there. What is called “sovereignty” today emerged under certain historical conditions at a certain time and in a certain place, and it can disappear or lose its meaning if the conditions change. Some authors assume that this has already happened so that we find ourselves in a post-sovereign era. The best way to ascertain whether they are right seems to be a reconstruction of the conditions under which sovereignty originally emerged, followed by an analysis as to whether the conditions have changed in the meantime, and, if so, how the changes affect sovereignty. Without such a historical assessment it is difficult to understand the present situation.