Lucia Rubinelli, Constituent Power: A History.J.H. Snider, Periodic State Constitutional Referendums: Their Development Since America’s Founding

Lucia Rubinelli, Constituent Power: A History (Cambridge University Press, 2020); 

J.H. Snider, Periodic State Constitutional Referendums: Their Development Since America’s Founding (Routledge, 2026)

There are a bewildering variety of ways in which such terms as "sovereignty," "constituent power," and "the general will" have been deployed by theorists from Rousseau and Sieyes to Carl Schmitt and beyond. I have discussed this matter a bit [here]. It is both fascinating and, in these precarious days, arguably quite consequential to ponder the question of whether all the fine distinctions drawn in this vast literature are pulling their weight. Two books that I believe can greatly assist in this project are those that I review here: Lucia Rubinelli's Constituent Power: A History and J.H. Snider's Periodic State Constitutional Convention Referendums. The first is a model of careful historical scholarship that manages also to be genuinely engaging to those with any interest in the incendiary politics of the French Revolution or the Weimar Republic. The second is an acute and ambitious institutional proposal that illustrates that these matters remain of supreme importance in the U.S. today. Together they illuminate both what is at stake in these long-standing arguments and what it might actually mean to build democratic institutions adequate to them.

That Rubinelli is as concerned as I am about the widely varying meanings attributed by contemporary scholars to “constituent power” is immediately evident from her Introduction. She distinguishes a handful of different concepts used by such writers as Andreas Kalyvas, Andrew Arato, and Martin Loughlin in their separate attempts to handle “the paradox of constitutionalism.”# The puzzle is that, on the one hand it may be claimed that such power as any people possess can be legitimate only if granted by a constitution. But that fundamental law, in turn, may be said to have real authority only if it has been created by those same people. And that is a vicious circle.$  

In her historical “genealogy” of the key concepts, Rubinelli is keen to distinguish her own concentration on the language used by such thinkers as Sieyes and Schmitt when handling terms like “constituent power” and “sovereignty,” from historical work that focuses instead on the ideas rather than the words. In her view, the latter method has often produced little more than a type of circularity that is similar to what we have already confronted above. I believe her operative principle here is sound: if a historian starts her researches with a concept of, say, sovereignty, that may not be abandoned or revised as she continues, she will be unable to find out what her subjects actually meant when using that term in such assertions as “That is why the people must fight for sovereignty, and – even if the costs are great – do whatever is necessary to obtain it.” 

Of course, as various post-Wittgensteinian philosophers have argued, there may be limits to the ability to get anywhere of semantic interest when one begins only with well-formed strings of undefined formulae. That is, when looking for meanings, it seems always to be necessary to start somewhere that is already meaningful.

Such considerations are, of course, deep and thorny, and this would not be the proper place to discuss Chinese Rooms (or for that matter, Cities), even were I competent to do so. My own sense, however, is that even Rubinelli, when she analyzes Sieyes's use of the word "nation," must have an operative definition of what a nation is in order to know what to look for in his pamphlets, speeches, and letters.🗡 

It may seem that reaching anything like comfort with the crucial conceptions here may not be a feasible goal, regardless of the historian's method. It may be argued instead that no amount of scholarly care is sufficient to make clear such pronouncements as the Marquis de Sillery's “The principle of sovereignty belongs to the nation.” Can the principle reside there while sovereignty itself is hanging out elsewhere–perhaps being instantiated in some group of people scattered around the world….or are sovereignty and this principle identical? Is sovereignty created the moment any nation comes into existence regardless of how it is run? If one nation is conquered by another, does “a sovereignty” disappear or is it transferred? Or, should we rather say that a new sovereign nation has come into existence? Do the answers to such questions depend on relative “homogeneity”? I doubt much can be resolved here except by stipulation. It's not much different from trying to determine the fact of the matter regarding whether anyone else can really catch my cold.

Another way of putting this matter – and one that I hope doesn't suggest to my readers that I am prepared to do more than dip a single half toe into the deep and roiling waters of what is often called “the hard problem of consciousness,” is to mention that I doubt that semantics can be entirely reduced to syntax even by such masters of WFF manipulation as Claude and Gemini. And I say this, even while agreeing that concepts are largely parasitic on language use. Although understanding may be profitably compared with game playing, it should not be forgotten that there are important differences as well. Anyhow, since this topic has always tended to make my head throb, I will simply close these musings on linguistic philosophy by noting that Rubinelli’s heavy interest in meta-linguistic issues reminded me of Hannah Pitkin’s classic work on representation. 

Fortunately, it’s likely not the case that we must resolve these ancient quandaries to make headway here. If defining 'nation' is the first hurdle of the historian, Rubinelli’s most significant  achievement here may be her showing how the Abbe´ Sieyes used the ambiguities in that concept to build a system that bypassed traditional notions of sovereignty entirely. In fact, among the highlights of Rubinelli’s fine book are her arguments that, for Sieyes, the two notions of national and popular sovereignty are “radically opposite” and her demonstrations that Sieyes believed that both national and popular sovereignty should be avoided. Why omit them? “The first risked concentrating power in the hands of few representatives or paralysing the country by separating power among too many competing institutions.” The second could lead to the sort of activities we now refer to as “The Terror.” Rubinelli argues that Sieyes’s solution involved a “complete rejection of sovereignty” that she doubts have ever been replicated by subsequent theorists. (But see footnote * below.)

With all the various explanations of constituent power and sovereignty offered by Sieyes’s colleagues, it may seem pointless to go into further detail into the particular views of Rubinelli’s principal subject. A reader might well have decided at this point that there can be no substantial rewards associated with additional ruminations regarding how to make pouvoir constituant both internally coherent and entirely distinct from the sort of sovereignty that had previously been in the hands of monarchs. However, that conclusion (one also reached by those contemporaries of Sieyes who accused the abbé of weaving mystical metaphysics) is a colossal error. Rubinelli’s illuminating analysis of how, for Sieyes, the sort of “power” that is intrinsic to all delegations of authority (even, e.g., when we take a letter to the post office) is essential to society itself. Far from creating or increasing the subjugation of individuals, it is really a matter of division of labor, a parsing that actually increases individual freedom. Sieyes’s remarkable writings on that subject show that all the attempts of his contemporaries – and many of those put forth by subsequent scholars – have not only been shallow, but fatally confused.* When we skip ahead to Schmitt, we learn that Sieyes’s views of constituent power were turned on their head by the Nazi jurist’s attempts to use the notion to somehow represent the sort of unbounded “decisional” authority that requires both a dictator and a unitary jurisdiction. But Rubinelli treats us to numerous surprising errors of other types as well. While Schmitt, who held views Rubinelli diagnoses as diametrically opposed to Sieyes, nevertheless heaped abundant praise on his forebear, Arendt's harsh criticisms of Sieyes did not prevent her from holding nearly identical positions to those of the unbelieving French cleric. Perhaps less mystifying, at least after meditating on the matter a bit, is the close connection Rubinelli explains between the preference among certain of  Sieyes's colleagues for trustee-type representation over “imperative mandate” delegation and those same members' staunch support for retention of the monarchy. 

Another fascinating tidbit is that at least two of the historical theorists and ostensible Sieyes descendants whom Rubinelli discusses, Arendt and  Georges Vedel, were devoted federalists. There have long been connections drawn between decentralization and “people power” by writers from Althusius and Montesquieu to Schumacher, Bookchin, Hess, and Loomis. But resolving tensions between subsidiary and national powers in a coherent fashion that leaves a majoritarian national democracy intact is extremely difficult – if not impossible.π For good or ill, Rubinelli doesn’t try her hand at that formidable task here. We may hope, however, that she will do so in future work.

The other book to be looked at here is Periodic State Constitutional Convention Referendums.⇎ J.H. Snider informs us that no fewer than 14 U.S. states have at least a formal expectation of regular referendums on whether to alter (by convention) their fundamental law embedded in their existing constitutions [‘PCCR’]. Some of those states actually hold the called-for elections on occasion and have even, though less frequently, convened constitutional conventions, and even made alterations to their founding documents. It is clear right from the Preface that Snider’s book will be both more advocacy-oriented and more concerned with practical consequences than the usual writings of such democratic theorists as Sieyes and Schmitt. While the latter thinkers surely always had such concerns as conflict-of-interest or preservation of cultural values in mind, they generally at least wrote as though they were simply following arguments about power or liberty wherever they led. Snider does not ignore the fundamental issues of democratic theory, but he is not interested in being coy. Where the philosophical approach focuses more closely on what can be shown to be the essential limits to constituted powers, the other is more likely to produce such utility-focused assertions as this:  “A constitution [must] be drafted by the constituent power [the people]…because the constituted power [government officials]...would have an impermissible conflict of interest proposing and ratifying their own constitutional powers.” It is clear, however, that the practical concerns would exist regardless of the philosophical niceties: if leaving it to state legislatures to amend constitutions is bound to make life worse for the populace at large, that is reason enough for prohibiting the involvement of those constituted institutions.  

If, in answer to several hoary theoretical questions, Snider is ready to simply assume that “the people are the constituent power, the people are well defined, and…formal change mechanisms already exist in a constitution [that] should generally be followed,” he cannot be accused of shying away from making other sorts of important – and helpful – theoretical distinctions. For example, in order to distinguish the 14 states currently possessing PCCR provisions from a number of other states that have different, initiative-based mechanisms available to change their constitutions, he separates three sorts of constituent power, namely: (i) initiation power, an automatic vote on whether to call a convention, (ii) proposal power, the vote on whom to elect, supposing (i) has been victorious, and (iii) ratification power, the vote on whether to adopt any proposals that emerge from a convention. Snider points out that these three powers provide separable sorts of benefits. For example, if a people wants to end gerrymandering, the possession of both proposal and ratification power may not be enough. They may need the sort of initiation power that states without PCCR lack, because the sitting officials will likely go to considerable lengths to prevent anti-gerrymandering initiatives from getting on ballots. But (like x-ray vision?), that power may not always be essential. He notes that “in contrast, if [the people] wants to expand suffrage from propertied males to all males, this may be reasonably feasible if one political party in the legislature thinks the expanded suffrage or ease of voting would increase its vote share even if it is already in power.” As can be seen, the focus on incumbent self-service is never far from Snider’s gaze. The mention of popular attempts to address gerrymandering – perhaps by turning to proportional representation – is on point, and not only because of the explosion of redistricting going on in the U.S. right now. Other types of democratic reform, like my own incessant calls for Recall and (repeal) Referendums, hold very little promise in that crucial area. Recall may allow us to throw any bums we don’t like out, post-haste, and the Referendum lets us ditch any particular statute that offends us, but, even together, they lack the ambitiousness of PCCR. If you want to make deep structural changes, or even start from scratch, you probably need a constitutional convention. (In fact, that’s true even if all you really want to do is add Recall or Referendum to your democratic menu.)  This is a key point that many reform advocates seem to miss. If you want to abolish something like the Electoral College – or the bicamerality of your legislature, you may convince 75% of your fellow citizens of the virtue of your proposals, but you are still likely to get absolutely nowhere without an Initiation Power, for your legislature will surely resist your suggestions with all its might. That may be the key moral of Snider’s book. And, in fact, his analyses of the defects of rival, arguably cheaper mechanisms for constitutional revision (like the constitutional initiative, which is available in a number of states) are quite convincing.

While the wealth of detail in this book is impressive, it is also somewhat dizzying. Snider provides quite granular distinctions between the specific PCCR provisions operative in all 14 states that have it, as well as itemizing nearly every change that has occurred in each one of them since the first adoption of a PCCR, by New Hampshire, in 1792. Snider also comments on how the various procedural changes over time have made constitutional agenda-setting by legislatures either harder or easier in the various jurisdictions, and the actual effects of such changes on attempted amendments. Differences in procedure regarding single- and multiple-provision changes are explained, both in time and cost, as well as those applied to “large” vs. “small” changes. There is also commentary on the inhibiting effects that have been produced by the advent of “constitutional commissions” in various states. To give an example of the granularity here, Snider notes that New Hampshire’s PCCR called for convention votes every seven years, while the second state to adopt the idea, Indiana (in 1816), had a 12-year period between automatic votes. “Between 1791 and 1964, New Hampshire had 30 convention referendums, 6 more than required under its 7-year periodic requirement. Between 1816 and 1851, Indiana had 5 convention referendums, 3 more than required under its 12-year requirement.” In those early days, the state constitutional convention wasn't yet seen as a legislative bypass mechanism — the perceived danger to sitting legislatures that it would later become. But Snider points out how antagonistic state legislatures in the 14 PCCR states have become (at least since 1984, when the last convention in Rhode Island was held) toward any amendment mechanism that doesn't involve them. Since then, in spite of 38 instances of automatic ballot placement, not a single state legislature has either endorsed the idea of a constitutional convention or called one on its own. No doubt this is meaty and valuable stuff for historians and advocacy groups, but it is not the sort of thing through which the general democracy supporter is likely to read 520 small-font pages (including 16 figures and nine tables). It can’t be denied, however, that it is a careful and quite scholarly history of state constitutional conventions, one that is unlikely ever to be surpassed on this issue.

While Rubinelli devotes her book to what she calls “five moments” or historical eras of interpretation of the pouvoir constituant, much of Snider’s text is committed to three case studies of fairly recent examples of messy convention politics: Maryland (2010), Alaska (2022), and Rhode Island (2024). On Maryland, there is a substantial discussion of how the legislature engaged in abundant fudging of the meaning of “majority.” For Alaska, the effects of substantial volumes of “dark money” are highlighted. And the concentration in the Rhode Island segment is on “messaging” – and the extremely sophisticated models used by political actors to assess its likely helpfulness in getting the populace to “No.” Those chapters provide a highly discouraging survey for those who have hope that authentic democracy may one day find its way to America.

If Snider is both chary of those in power (and his prior work as a U.S. Senate staffer has given him plentiful opportunities to have accumulated evidence of self-dealing legislators and parties) and a little impatient with high-falutin theory that seems to have few real-world applications, those are attitudes he shares with some very distinguished colonial progenitors. It is unsurprising that so many hardscrabble American colonists, whose educations were necessarily limited, took more down-to-earth positions in their federalist and anti-federalist arguments than 18th Century French clerics or Weimar legal scholars would be likely to embrace in their own published work. But even the cosmopolitan Thomas Jefferson, father of the idea that constitutions should expire with each generation, never seemed remiss about  calling out the evil inclinations of his political rivals–whatever the venue. 

Following Akhil Amar, Snider reminds us that if the American union was not the first democratic polity to have a written constitution, it may have been the first to include formal provisions for amendment. In fact, Lycurgus’s version was intended to be set in stone for all time. Using the analytic tools Snider has provided, we can see that, while the early American constitutions granted the people proposal and ratification powers, it failed to give them initiation power. This may because it was then thought that revolutions might be necessary, and that such revolts should therefore sometimes be embraced rather than avoided  There is a fine description here of the radical, Paine-influenced Pennsylvania Constitution of 1776, with its automatic convening of a Council of Censors every seven years. That entirely independent council could propose constitutional amendments that would need to be ratified by a convention. I had known that, by 1790, James Wilson and other conservatives in Pennsylvania had blown up the council plan, but I did not realize that the idea had been picked up by Vermont in 1777 and retained there until 1870.➽ 

Snider concludes his work by suggesting a few improvements to the PCCR strategy, which he believes will further help it “implement the vague promise of constituent power contained in the U.S. Declaration of Independence,” a document in which  we find “whenever any Form of Government becomes destructive of [Life, Liberty and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it.” Snider is acutely aware of how limited democracy is if our powers only extend to electing officials  – and perhaps even the enacting or repealing of statutes. He is intent on also supplying constituents with “higher electoral power,”  that of fundamentally altering the ways in which they are governed. Among the large number of detailed proposals he makes for reforming PCCR are calls for the creation of randomly selected “citizens’ assemblies” as “an auxiliary support” to the PCCR process, the introduction of three-member panels of retired judges to moderate and “otherwise administer” such assemblies, and the use of RCV and fusion voting. It is a daunting list, and in view of the statutory and current constitutional difficulties, as well as the impressive obstacles likely to be imposed by those in power that were specified in his three case studies, I think it is hard to be sanguine. But for those who are not satisfied by self-government only at the margins, what else can one do but try?
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#To be honest, Rubinelli is considerably more charitable to several of these prior “contributions to the literature” than I would be. For example, she attributes to Antonio Negri such pearls as “before being a concept, constituent power is an immanent reality….Its defining features are its being self-founding, unlimited in both time and space and expressing pure strength.” If that weren’t sufficient, we are also reminded that “its temporality cannot be limited or constrained, and it expresses itself spontaneously, through strength as opposed to power.”  For what it’s worth, that is not terribly different from how one or two of my wife’s (Arkansan) relatives talk about pancakes, although I think they are generally less prone to confuse ratio essendi with ratio cognoscendi than Negri is.

$As I pointed out in my book on democratic theory, there are several such paradoxes that are bound to arise in even the most cursory attempts to analyse democracy.

🗡Political scientists may notice a particular, entirely non-technical, problem that can arise from an exclusive use of Rubinelli’s method when looking at her new paper, “Barricades Across the Road to Democracy” (Political Theory, May, 2026),  which focuses on European referendums in the late 19th and early 20th Centuries. This problem stems from the fact that the very term “referendum” may be used in either a broad sense, to cover plebiscitary initiatives as well as repeals, or in a narrower one, in which it includes only repeals.  (If we consider Brexit, we may decide that there are hybrid understandings as well.) Now, some theorists, myself included, are attracted only to popular repeals, believing that large populations are too unwieldy to prepare careful ballot questions or engage in sufficient deliberation. Nevertheless, we may also insist that even large groups can know what public policies they don’t like and should generally have the power to discontinue them. When considering political histories, we can, of course, learn what sort of procedures various past jurisdictions were calling “referendums” as we read the words of relevant speeches or statutes, but if we happen to be particularly interested in only one subset of these procedures, it seems much more efficient to start with our definitions in place. And where constituents retain the power of repeal and recall, remarks like those of Pétion and Salle to the effect that “only where the imperative mandate is implemented is the representative responsible for his behavior” can be easily seen to be false. For nothing prevents jurisdictions from enforcing the strict accountability of their representatives in spite of also requiring abundant deliberation, sensible estimates of national utilities, and expert draftsmanship. 

*This total decimation of the still popular view that liberty is basically a matter of the absence of constraints, as well as Sieyes’s brilliant explanation of the limitations of  ostensible “free choices” that have no real hope of satisfaction, reminds me of another great thinker’s contributions in this area. I refer here to Everett Hall, who, whether or not he had ever seen Sieyes’s still mostly unknown writings on society in 1943, when Hall’s “An Ethics for Today” came out, made many of the same points. (And did so again at much greater length in a never-published 1945 book manuscript devoted to a critique of Hayek’s Road to Serfdom.) In the 1943 essay, Hall not only noted that “organized society may make positive contributions to an individual's rights and liberties,” he went on to criticize the Lockean conception of liberty. Mirroring Sieyes, Hall wrote, “Liberalism, so it seems to me, should shift from the defensive to the offensive, and advocate a type of political, social, and economic organization that will make the maximum contribution to the development of individual liberty.” 

π  It is perhaps a misfortune of mine that, like Schmitt, I don’t see how a population that is divided into separate official subsidiary units, like provinces or parties, can maintain true majoritarianism. I discuss this problem in some detail here and Schmitt’s take on the matter (in connection with Lars Vinx’s excellent Guardian of the Constitution anthology) here. I describe a common nature of plebiscitary dictatorships (or, more generally, phony democracies) here.

⇎Those who turn to Snider’s book immediately after reading Rubinelli’s may be startled by his treatment of Sieyes. Snider is a stout advocate for the (unfortunately mostly ignored) opportunities voters have to trigger periodic conventions to create new or altered constitutions; as Rubinelli points out, Sieyes held remarkably congruent views. Yet like Arendt, Snider is nevertheless dismissive. Rubinelli notes that “in the Year III, Sieyes drafted a constitutional plan where he admitted the use of referenda to amend the constitution. These referenda would take place…every ten years, would consider whether the constitution needed to be modified, and ask the people whether they’d like to proceed with amending it via direct popular vote. Depending on the result of the vote, the Assembly would turn itself into a Constituent Assembly and amend the constitution.” That proposal is largely congruent with much of the advocacy found in Snider’s book, yet the latter writes: “Sieyes gave relatively little legal and institutionalized power to the constituent….American states had already tried Sieyes’ weak style of constituent power….and they found it wanting….In the latter half of the 19th century, Sieyes’ stunted conceptualization of constituent power was revived by Southern secessionist states during the Civil War and…Jim Crow Era[s]…But he would never be associated with the development of…the formal constitutional initiative.” If that seems unfair to those of us who have just digested the Rubinelli volume, we should not forget that Sieyes was sometimes intentionally vague and could even be inconsistent from one speech to the next. After all, in the shadow of the guillotine, calculated ambiguity was often a matter of survival.

➽ However, I do know a little about the more recent Massachusetts convention history, because when I worked in the Massachusetts State House in the 1980s, I happened to find huge beat-up copies of the Debates of the Constitutional Convention of 1917-1918 sitting by a basement annex dumpster, and lugged them home (in three trips). Back then I was already something of a failure addict, being committed to both the Single Tax and Proportional Representation, and I have kept the two volumes in which those matters were discussed at great length. Most would argue – and I agree – that that event was not a waste of time or money, since, in addition to some fine argument, it eventually gave citizens the initiative as well as the “free right of petition,” although as a committee staffer I can tell you that I never saw a citizen-originated bill move a single inch in the legislature, regardless of its worth. And that, of course, is evidence of Snider’s main thesis.

About the Author

Walter Horn is a philosopher of politics and epistemology.

His 3:16 interview is here.

Other Hornbook of Democracy Book Reviews

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