Jan Smolenski

In this paper, I develop three ideal types of early modern federal theories: sovereignty relativizing federalism, sovereignty pooling federalism, and bottom-up federalism. Each of these types respond to a different political effect of the development of the modern state: organ sovereignty, hostile geopolitical environment, and disempowerment of the society as a corollary to organ sovereignty, respectively. Each of these types conceives of the federation as an alternative to the state. I compare and contrast these types along the lines of implementation of the federal principle of self- and shared rule, the criteria of evaluation of federal arrangements, and the normative implications.

This paper critically explores Carl Schmitt's theory of democracy. I present the emergence of the democratic principle of legitimacy as described by Schmitt, then elaborate on the people as sovereign qua constituent power and present its threefold relationship with the constitution. Later I formulate three lessons to be taken from Schmitt's theory and discuss its importance and implications for democratic theory in terms of the normative and formative principle of democracy, core subject and core mode of democratic politics, and conditions of possibility of constituent democratic politics. In concluding part I discuss the differences between liberal, republican and deliberative model of democracy and Schmitt-inspired theory.

In this paper I compare political theories of Carl Schmitt and Chantal Mouffe in three important aspects - the conceptualization of the political, their attitude towards liberal democracy and the conception of political process - and point to significant discrepancies. Schmitt's concept of the political is deeply existential and essentially involves real possibility of death, whereas Mouffe's is more domesticated, centered around the struggle, not physical elimination. Schmitt sees liberal democracy as inherently contradictory, because it is grounded on contradictory principles: democratic equality and particularism, and liberal freedom and universalism. Mouffe perceives this contradiction as a locus of tension with emancipatory potential. I trace these differences to their different perception of history. Schmitt's vision of history is marked with ruptures created by the political emergencies, which correlates with his eventual, decisionistic conception of politics. Mouffe's processual conception of politics corresponds rather with the conception of the end of history.

The 1780 Massachusetts constitution making process is considered a model for the US Constitution, both when it comes to the drafting process (the constitutional convention) and the content (the tripartite division of power and a relatively strong executive). According to this view, the federal constitution making process perfected what has been tested in Massachusetts (and later in New Hampshire). In this paper I want to argue for an alternative interpretation, according to which the 1780 Massachusetts constitution making process provides a different model for democratic constitution making, a path that was not taken and characterized by principled commitment to popular participation. In doing so I analyze the drafting and ratification of the 1780 Constitution of the Commonwealth of Massachusetts. In particular, I look at the internal logic of the process, extract its elements and separate them from historical contingencies of the time, and elaborate on its principles. I argue that the characteristic features of the process (extended time span, multiplicity of actors, and spatial diffusion of the loci of popular participation in the process) together with its governing principles (participatory inclusiveness, constitutional learning, and popular sovereignty qua constituent power – albeit imperfectly realized), not only present us with a normative standard against which constitution making processes can be judged but also require us to rethink popular sovereignty and the will of the People, concepts that are fundamental for democratic theory and democratic constitutionalism.