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    Citation: 21 Cardozo L. Rev. 1749 1999-2000

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    THE METAPHYSICS OF CONSTITUENTPOWER: SCHMITT ND THE GENESIS OF

    CHILE'S 1980 CONSTITUTIONRenato Cristi*

    Constituent power cannot be defined by the legislator orformulated by the philosopher. It breaks the framework ofconstitutions and cannot be confined within a book. When itappears, it is like lightning sundering the bosom of a cloud. Itinflames the atmosphere, inds its victim and then disappears.

    INTRODUCTION In truth, a constitution is valid because it emanates from a

    constituent power and is posited by its will. 2 Thismetaphysically charged statement, made in chapter one of theVerfassungslehre, condenses Schmitt's critique of constitutionalistliberalism. If liberalism is responsible for the wholesaledemolition of metaphysics, the retrieval of metaphysics is neededfor an effective critique of liberalism.What, then, is metaphysics? In a nutshell, Schmittianmetaphysics is essentially dualism. The ultimate aim ofmetaphysics is unity, but its procedure is dualistic. From ametaphysical perspective liberalism is a defense of convention,pluralism spontaneity, and freedom. The critique of liberalism,whose antecedents can be traced back to Plato's absolutist struggleagainst Sophistical relativism unfurls the banners of nature,substance, order, and authority. Schmitt carries this metaphysicalstruggle into the field of constitutional theory. His critique ofliberal constitutionalism rests on a dualism-the oppositionbetween pouvoir constituantand pouvoir constitu The statement

    Ph.D., Professor of Philosophy, Wilfrid Laurier University. This essay was originallya paper presented at the conference, arl Schmitt Legacy and Prospects, held in NewYork City in April, 1999. For comments and criticisms, I owe thanks to my panel co-participants Andrew Arato, Jan MUller, and Michel Rosenfeld and to GopalBalakrishnan Jorge Dotti, Casiano Hacker Cordon Andreas Kalyvas, John McCormick,Chantal Mouffe, and Bill Scheuerman.I Juan Donoso Corths, Lecciones de Derecho Politico, in 1 OBR S COMPLETAS 390(1970).2 C RL ScHMiTI, VERFASSUNGSLEHRE 9 (1965).

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    CARDOZOLAWREVIEWquoted above must be read as a declaration of constitutionaldualism. Constituent power is the absolute substance, the naturanaturans, from which a constitution emanates. Constitutionalorder and authority are based on that same constituent power.Being posited by such power defines the legitimacy of positiveconstitutions.Dualism determines the distinction that marks the point ofdeparture of Schmitt s argument in the Verfassungslehre-thedistinction between absolute and relative considerations of theconstitution. The liberal forsaking of metaphysics, and theconsequent denial of constituent power, implies the reduction ofconstitutions to a plurality of constitutional laws. n y a pas deconstitution; l a des lois constitutionnelles. The doctrine ofconstituent power reverses this relativizing tendency and demandsan absolute constitution. Only in this way can a genuineconstitutional dualism be attained. A positive constitution is notan absolute constitution, but rests on it as the firm foundationalcore that protects its identity, and guards it from wholesale andindiscriminate reform. By anchoring a positive constitution in anabsolute constitution, Schmitt s dualism allows him to distinguishbetween higher and normal lawmaking. His aim is to protect theintegrity of a positive constitution.Schmittian metaphysics, while placing objective limits onconstitutional reform, also legitimizes revolution. The sameconstitutional continuity and identity Schmitt had sought topreserve from indiscriminate reform can now be legitimatelydestroyed or abrogated by revolutionary means. If what counts, interms of continuity and identity, is the absolute constitution,nothing can stop the activity of the constituent power fromabrogating a positive constitution. It can go as far as to destroy thekind of constituent power on which positive constitutions rest. Myconcern here is that Schmitt equates revolution andcounterrevolution. Pace Arendt, I think that de Maistre sstatement-La contrergvolution ne sera point une r~volutioncontraire, mais le contraire e la r~volution-is not an emptywitticism. 3In Part I of this essay, I examine Schmitt's constitutionalmetaphysics as he presents it in the first four chapters of hisVerfassungslehre. The distinction he draws between absolute,relative, positive, and ideal constitutional considerations isdetermined by his metaphysics of constituent power. Thisquadruple distinction supports his critique of liberal

    HANNAH ARENDT, ON REVOLUTION 8 1963 .

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    SCHM1TTAND CONSTITUENTPOWERconstitutionalism. In Part II, I present Schmitt's interpretation ofthe genesis of the American Constitution. In his view, theAmerican Revolution did not offer the right circumstance todiscern his theory of constituent power. I submit that he is right inso believing. The last three Parts argue that Franco's Spain andPinochet's Chile offer, in contrast, the right circumstances todiscern the counterrevolutionary applications of Schmitt's theory.It is no accident that, in the cases of both Spain and Chile,Schmittian scholars were determining factors in the destruction ofdemocratic constitutions and the transferral of constituent powerto proto-monarchical figures-Franco and Pinochet.

    I. ScHMIrr S CONSTITUTIONAL METAPHYSICSThe point of departure of Schmitt's argument in his

    Verfassungslehre is the fundamental distinction between anabsolute notion and a relative notion of the constitution. Inchapter two, the relative notion reduces constitutions to a set ofconstitutional laws, to several, various or many legaldeterminations of a certain type. 4 No consideration is given tothe constitution as a whole, [as] an order and a union. 5Constitutions, in the relative sense, cannot be identified by certain fundamental (grundlegend) legal prescriptions.6 Schmitt adoptsthe expression used by Barthelemy-Duez to refer to the FrenchConstitution of 1875: II n'y a pas de constitution; it y a des loisconstitutionnelles. In contrast, the absolute conception discernedin chapter one presupposes the distinction between constitutionand constitutional laws. It emphasizes constitutional unity asopposed to a random plurality of laws.There are two possible ways of understanding the absoluteconstitution: as giving rise to either substantive or formalistinterpretations. Schmitt favors the former. It allows him toimpute a substantive unity to the constitution, as opposed to amere accidental and random dispersion of constitutional laws. Hehas no qualms about grounding his theory of the constitution on ametaphysics of substance. Substance is represented by aconcretely existing state, through the political unity of a peopleand its particular form of existence.8 Accordingly, the theory ofthe positive constitution he announces in chapter three of theVerfassungslehre, intends to bring to light the substance of the

    4 SCHMITT, supra note 2 at5 Id6 Id. at7 Id at 15.8 Id. at

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    C RDOZOLAWREVIEWWeimar constitution. 9 Schmitt's substantive account of theabsolute constitution contrasts with the purely formalist approachfavored by normative liberalism. There, a constitution isinterpreted as a hierarchically ordered closed system of norms. 11A basic norm represents an absolute unity that rises above themanifold of its subordinate laws. This basic norm is no tconcretely existing, but a merely mental or ideal unity. 1 2Normative liberalism originated with the French doctrinaires, likeRoyer-Collard and Guizot, and reached its highest expression withGerman neo-Kantians, like Kelsen.The substantive unity of Schmitt's absolute constitutionmanifests itself in three ways. First, the absolute substantiveconstitution refers to the sovereign state itself-i.e., the individualconcrete state as a political unity. 13 In evidence here is Schmitt'sconcern for substantive unity, the core of his critique ofconstitutional liberalism. This is first and foremost a critique ofpluralism. According to Schmitt, the relativization of theconstitution is the natural outcome of constitutional liberalism.Only a sovereign state can ensure political unity and arrest theslide towards political dissolution. The first task attempted bySchmitt is to safeguard the existence of the state. Accordingly, thefirst meaning of the absolute constitution refers to this existentialcondition. Schmitt defines the constitution as the concreteamalgamation of political union and social order that belongs to adetermined state. '4 The constitution is the state. This means thatthe state does not have a constitution; it is the constitution.Schmitt's metaphysical disposition appears in full swing when hedeclares that the state is a really existing situation ein seinsmdif3igvorhandener Zustand] a status of unity and order, and theconstitution is, in the words of Isocrates, its soul. ' 5

    Id. at 35 .1 ario Castiglione distinguishes three generic types: normative, voluntarist, andorganic. He attributes the voluntarist conception to Schmitt, and, though Castiglione doesnot relate it to the notion of constituent power, it is implied when he stresses the roleplayed by the subject of the constitution. Dario Castiglione, The PoliticalTheory of theConstitution 46 POL. STUDIES 417 (1996). Martin Pilch does not take not into account thegeneric contrast between substantive and formalist interpretations of the absoluteconstitution; as a result, he presents the formalist interpretation as a fourth specific type of

    absolute constitution. MARTIN PILCH, SYSTEM DES TRANSCENDENTALEN ETATISMUS2 (1994). Also, Pilch misses the traditional realist conception of substance that guidesSchmitt's metaphysical approach, and oddly associates it with Schelling's philosophy ofidentity. Id. at 15-16.

    11 SCHMITT, supr note 2, at 3.12 d3 Id.4 Id at 4. 5 Id

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    SCHMITIAND CONSTITUENTPOWERThe second meaning of absolute constitution privileges itsessential over its existential meaning. The essential constitutiondefines the particular mode of the state's existence. The

    constitution appears now as a articular mode of the political andsocial order.' 1 6 The notion of order represents an order of supra-and subordination. In other words, the constitution manifests theparticular form of dominion Herrschaft) or authority to beencountered in every state. Schmitt accepts the classicaldistinction between three state forms: monarchy, aristocracy, anddemocracy. He takes them to be something ontological etw sSeinsm J3iges , or a status whose metaphysical condition can betraced back to Aristotle and Aquinas. Because these forms haveno normative value assigned to them, a decision in favor of one orthe other has no objective foundation. A revolution will bringabout a change of status-say, from a monarchical status to ademocratic status, or vice versa-and this will entail the immediatedestruction of a particular constitution and the creation of a newone. A successful revolution brings about a new status and eoipso a new constitution.' 1 8 It is plain to see that the metaphysics ofpouvoir constituant determines Schmitt's argument from the verybeginning of his exposition. 9 In contrast, normative liberalismrejects that notion and thereby loses the conceptual means bywhich to grasp the real meaning of revolution. Worst of all, as thecases of Germany, Spain, and Chile illustrate, it also squanders thebest defense of the democratic revolution-self-government as anexpression of the constituent power of the people.Third, the essential constitution is not merely an authoritativestatus, but also a principle of dynamic development 20dynamischen Werdens). The unity of the state is forever beinggenerated and is not stable or static. Underlying the state asstatus, one finds an effective force and energy that continuallyregenerates itself. Schmitt mentions Ferdinand Lasalle, whoviewed the constitution as an active force. 22 Constitutional forceand energy are needed in the daily struggle to maintainauthoritative unity in the face of opposed interests, opinions and

    6 Id7 Id at 5.

    8 Id. 9 Without ever employing the term constituent power, Bruce Ackerman's argument

    in We The People: Foundationsemphasizes the notion of constitutional creativity, and soassumes a similar metaphysical intent. BRUCE ACKERMAN, WE THE PEOPLE:FOUNDATIONS 42-47, 57, 58, 65,132, 171,175,195 (1993).20 SCHMrrr, supra note 2, at 5.21 Id.22 Id. at 6.

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    CARDOZOLAWREVIEWtendencies. Schmitt sees authority as one side of theconstitutional equation; the other side is freedom. This nowcompletes Schmitt's view of the essential absolute constitution. Itsstatic and dynamic aspects correspond to the opposition between freedom and order, which he relates to the contrast betweenidentity and representation, and to Lorenz von Stein's distinctionbetween a state-constitution Staats-Verfassung)and a state-order Staats-Ordnung). In [Stein's] state-constitution the life of thestate ascends from the bottom up; in the state-order it operatesfrom the top down. ' 23 One can also discern in this complexiooppositoruman echo of the Hegelian separation between state andcivil society. This can be interpreted as a confirmation of Schmitt'sauthoritarian liberalism, a form of liberalism that stands opposedto purely normative liberalism. Refusing to abandon themetaphysical sphere of being and existence, Schmitt sees theconstitution as more than a general rule or basic norm underwhich one subsumes particular rules or cases. The constitutionis the active principle of a dynamic process of effective energies...but definitely not a regulated procedure consisting of normativeprescriptions and imputations. 24Schmitt proceeds to flesh out the generic contrast between histhreefold substantive account of the absolute constitution and thepurely formal approach taken by normative liberalism. Frenchdoctrinaires, like Royer-Collard and Guizot, and German neo-Kantians, like Kelsen, define the system of supreme and ultimatenorms as an absolute constitution. Accordingly, they do notreduce the constitution to a mere collection of higher laws andregulations, but consider it as forming a closed unity. ' 25 Thisabsolute constitution no longer corresponds to an ontologicalcondition seinsmaj3iger Zustand), but is interpreted as purenormativity.26 Here one may still identify the state and theconstitution, but, as Schmitt observes, these thinkers do notidentify the constitution with the state; they identify the state withthe constitution. The state thus loses its existential standing andbecomes a mere system of norms; it does not exist ontologicallybut only normatively nicht seinsmdf ig existiert, sondernsollensmJ3ig). Schmitt promptly dismisses this challenge for thetitle of absolute constitution. Crucial in this rejection is the roleplayed by the notion of constituent power. Whereas Kelsenempties the notion of constituent power of any existential

    23 Id.24 d25 Id. t 7.26 d

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    SCHMITAND CONSTITUENTPOWERdimension (at most, it may serve to illustrate the differencebetween ordinary and constitutional laws by formally stipulatingthat the latter demand special requirements for their creation andreform), Schmitt decisively affirms its factual existence. WhenSchmitt declares that a constitution is valid because it emanatesfrom a constituent power, 27 he defines constituent power as anempirical act of the will. Kelsen's basic norm rests in itself and isvalid simply because it is valid. '2s This kind of circularity leavesthe unity of a constitution unexplained. According to Schmitt, aconstitution cannot rest on a formal system of norms. There is noclosed constitutional system of a purely normative nature, and it isarbitrary to confer unity and systematic order to a series ofparticular prescriptions, understood as constitutional laws, if thatunity does arise from an assumed unified will. 29

    Schmitt believes that only a metaphysics of substance canexplain both the: real unity of a positive constitution, and itsgenesis and death. First, focusing on a merely normative, asopposed to a real, constitutional unity ignores the fact that,currently, constitutions depend on the political considerationsand contingencies of political party coalitions. 3 As a result, aconstitution becomes a eries of different positive constitutionallaws. 31 This contributes to the demise of the absoluteconstitution, which alone can secure constitutional unity. Theconcept of the constitution has become relativized and reduced toindividual constitutional laws. 32 Second, constitutions are bornand may die, but the constituent power that sustains them cannotbe destroyed, changed, or altered in any way. It persists as the

    27 Id. at 9.28 Id29 Id. at 10 According to Kelsen, individual laws derive from general laws and these

    derive from constitutional laws, which in turn derive from a universal supreme norm, thelogical source of the whole legal system. This basic norm, as a juridical hypothesis, setsup the constituent authority (verfassunggebende Autoritidt). HANS KELSEN, DASPROBLEM DER SOUVERANITAT UND DIE THEORIE DES VOLKERRECHTS: BEITRAG ZUEINER REINEN RE HTSLEHRE vii (2d ed. TUbingen: J. C B. Mohr (Paul Siebeck) 1928).Kelsen postulates that the constitution obtains its validity from the presupposed originalnorm, but that its content is to be traced back to the empirical act of the will of theconstituent authority (dem empirischenWillensakt der konstituierendenAutoritat). Id Incontrast, Schmitt traces the validity of the constitution back to a fact: the existing will of amonarch or of the people. This criticism was anticipated by Hermann Heller. One yearearlier, he characterized Kelsen's notion that: a constitution is first valid and only thenacquires constituent authority as a -sleight' of hand. HERMANN HELLER, DIESOUVERANITAT. EIN BEITRAG ZUR THEORIE DES STAATS- UND VOLKERRECHTS 53(1927); cf DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANSKELSEN AND HERMANN HELLER NWEIMAR 172-73 (1997).

    30 SCHMITT, supr note 2, at 11.31 Id32 Id

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    C RDOZOLAWREVIEWextraconstitutional ground of constitutions. Pouvoir constituantisa substantive entity that is not exhausted by its exercise, and iscapable of persevering in its existence. 33 The constitutions thatarise from this metaphysical matrix are accidents posited andsupported by this substantive power. Positive constitutions areborn, suffer alterations, and eventually die, but alongside andabove them the pouvoir constituantcontinues to exist.When Schmitt examines the notion of the positiveconstitution in chapter three of the Verfassungslehre this exercisein constitutional metaphysics begins to make sense. The point ofdeparture in his argument is the distinction between constitutionand constitutional law.34 Positive constitutions, like the WeimarConstitution, ought to be studied as unified bodies with a unitythat transcends them, not as mere pluralities of constitutional laws.They ought to be read as a whole, [as] an order and a union.Behind every positive constitution stands a grundlegend orabsolute constitution. Behind the jurist who dissects positiveconstitutions we find a metaphysician who asserts the existenceand defines the essence of an absolute constitution. Theintroduction of an absolutist point of view does not mean thatSchmitt intends to absolutize positive constitutions. On thecontrary, the distinction between absolute and positiveconstitutions denotes the relativization of the latter. This isimplicitly acknowledged by Schmitt when he writes:The [positive] constitution is not something absolute, because itis not self-generated. Again, it is not valid by virtue of itsnormative rectitude, or by virtue of its systematic closure. It isnot granted by itself, but for a concrete political union .... The[positive] constitution is valid in virtue of the existing politicalwill of whoever grants it.36

    A positive constitution is something posited. But only aconcretely existing will can be said to posit anything. The concretewill that posits a constitution does so by virtue of its constituentpower and authority. The constitution, in its positive meaning, isgenerated by an act of constituent power. 37 Constituent power isthe bridge that links the absolute constitution with the positiveconstitution-a narrow bridge indeed. No specific norms ordispositions go through it but the one and only decision thatdetermines the whole political union with respect to its particular

    33 Id. at 9234 Id at 215 Id at

    36 Id. at 2237 Id at 21

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    SCHMITJ'ANDCONSTfIUENTPOWERform of existence. 38 According to Schmitt, this act of constituentpower only creates the essential mode of the political union. Theexistence of a political union, through the absolute constitution,predates the rise of the positive constitution.Schmitt makes two further points. First, the decision thatcreates the political form of this positive constitution is made onlyonce. But this only once is in reference to this particularpositive constitution. The decision itself can change. This means,Schmitt admits, that the form can change. 3 9 New forms can beintroduced without substantially changing the political union itself.In no case does the absolute constitution-i.e., the politicalunion-cease to exist. Drawing from metaphysics, Schmittgrounds the dynamics of constitutional reform on the stationarybackground offered by the absolute constitution. Second, thegranting of a constitution (Verfassunggebung)belongs to a subjectcapable of action. This is the subject of constituent power, inwhose hands Schmitt places the decision to create the particularform that will characterize an already-existing political union.Two consequences follow from this distinction between anabsolute and a positive constitution. They relate to the issue ofreform and revolution. First, because the positive constitutionrests on fundamental principles that define it absolutely, thepossibilities of constitutional amendment are limited. Positiveconstitutions have a substantive core which must be respected.Reform can proceed so long as the identity and continuity of theconstitution as a whole is preserved. 4 Constitutional reform doesnot mean destruction or abrogation of the constitution. On onehand, it does not mean destruction of the constitution. 41 Theinstitutions in charge of constitutional amendment are not subjectsor agents of constituent power.42 Those institutions are no t

    38 d39 d40 Id. at 103.41 Id.42 Schmitt acknowledges that the amending power is not a normal faculty.

    Constitutional reform is not a normal state function, and is not equivalent to normallawmaking. Id. at 102. It is higher lawmaking of a particular sort-limited higherlawmaking. Holmes and Sunstein make a similar observation. They notice that theamending power inhabits a twilight zone between authorizing and authorized powers....The amending power is simultaneously framing and framed, licensing and licensed,original and derived, superior and inferior to the constitution. Stephen Holmes CassR. Sunstein, The Politicsof ConstitutionalRevision in EasternEurope, in RESPONDING TOIMPERFECTION: THE THEORY ND PRACTICE OF CONSTITUTIONAL AMENDMENT 276(Sanford Levinson ed., 1995). They also notice the oxymoronic nature of the expression pouvoirconstituant constitug, employed by French constitutionalists. To avoid theseunclarities, Schmitt explicitly rejected the idea of characterizing the amending power aspouvoirconstituant. See infra note 84.

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    CARDOZOLAWREVIEWpermanent fixtures equivalent to latently existing nationalconstituent assemblies with sovereign dictatorial powers. 43 Thus,a democratic constitution, based on the constituent power of thepeople, cannot, by way of reform, become a constitution ruled bythe monarchical principle.4

    On the other hand, the reform of the constitution cannotmean its abrogation. Even if the subject of constituent power doesnot change, a reform cannot alter the fundamental decisions thatdefine a constitution. In the case of the Weimar Constitution, democratic electoral rights cannot be replaced, in accordancewith article 76, by a system of councils [or soviets]. 45 In the caseof the American Constitution, Schmitt notes that Article Fiveallows amendments, but only with the consent of all individualstates, so that states cannot be deprived of their independentexistence. 46 In another reference to the American Constitution,he notes that constitutional theory has not really addressed theissue of the limits on the power to reform a constitution. Anexception to this is found in an article published by WilliamMarbury. Writing in the HarvardLaw Review he argued that thefaculty to reform or add to a constitution could not be unlimited. 47Based on Article Five, Marbury urged the United States SupremeCourt to review the Eighteenth Amendment. Even though theCourt did not proceed with a review, Schmitt is satisfied that thematter was raised.

    Second, what Schmitt gives with one hand, he takes away withthe other. While he intends to preserve the identity of theconstitution, and for this purpose places limits on the power toamend, he also legitimizes the revolutionary option, which eitherdestroys or abrogates the constitutional continuity and identity hehad sought to preserve.48 He does this based again on thedistinction between an absolute and a positive constitution.Positive constitutions are relative. Therefore, what really counts interms of continuity and identity is the absolute constitution.Schmitt confirms this view when he denies that violations of theconstitution can be defined as constitutional reforms. Such

    43 SCHMITT, supranote 2, at 103. ee id. at 104.45 Id46 Id. at 105.47 Id. at 106 (quoting William L. Marbury, The LimitationsUpon the Amending Power

    33 HARV. L. REV. 223 (1920)).48 In truth, a revolution is a source of legitimacy, but it cannot itself be legitimated. Arevolution will either destroy or generate a mode of political existence-for example,

    democratic or monarchical. But, as Schmitt admits, the particular mode of politicalexistence need not and cannot be legitimated. Id at 87.

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    SCHM1TAND CONSTITUENTPOWERviolations are not laws, but measures adopted in view of thespecial circumstances of a concrete case. When such violationsand measures are taken in the interest of the political existence ofthe whole, the supremacy of the existential [des Existentiellen] overmere normativity shows forth. '49 By the political existence of thewhole and the supremacy of the existential, Schmitt means theprior existence of an absolute constitution. A constitutionalreform cannot affect it, but nothing can stop the activity of theconstituent power. Just as it can create a new constitution, it candestroy or abrogate an existing one. 0

    After analyzing the absolute, relative, and positive meaningsof constitution, chapter four of the Verfassungslehre considers theideal concept of constitution Idealbegriff der Verfassung).According to Schmitt, this ideal comes to light when thecontenders in a political struggle try to impose the constitutionthat corresponds to their political demands as the trueconstitution. 51 When the political struggle reaches its highestpitch, one party will deny the name 'constitution' to anyconstitution that does not match its demands. 5 2 In its struggleagainst absolute monarchy, liberalism identified the notion ofconstitution with a particular constitutional conception, defined bythe protection of property, contractual freedom, and the divisionof powers. The regimes that did not coincide with the values itpromoted were deemed to lack a constitution. Only the adoptionof a metaphysical standpoint could wrest away from liberalism thismonopoly over the ideal constitution. With dismay, Schmitt notesthat Esmein's comparative study of constitution excluded

    9 Id at 1 75 Aside from the creation of constitutions, Schmitt distinguishes between two othercourses of action open to the constituent power. First, a positive constitution may undergoits total annihilation Verfassungsvernichtung). In revolutionary situations, not only theconstitution and the organs of constitutional legislation, but also the species of constituentpower, is destroyed. See id. at 94. Schmitt considers the case of the German Constitution

    of 1871, which was destroyed by the German revolution of 1918-1919. In a case like this,the destruction affected the constitution and the specific form attained by the constituentpower that sustained it. According to Schmitt, it is not the constituent power itself thatperished. n o case, not even in the most extreme political situation, is it possible for thesubstance of power-i.e., constituent power itself-to be destroyed. What happened inGermany is that one subject of constituent power was replaced by another subject: theconstituent power of the people was substituted for that of the monarch. Second, Schmittalso refers to the abrogation of a positive constitution Verfassungsbeseitigung). In thiscase, a positive constitution is rescinded but there is no corresponding destruction of thepouvoir constituant that sustains it. The absolute constitution remains. A positiveconstitution, which rises from an act of pouvoir constituant, derives from it and does notitself bear the continuity of the political unity. Id. at 93. The latter falls on the pouvoirconstituant, he ultimate foundation of a positive constitution.

    5 Id. at 36.52 Id at 30.

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    C RDOZOLAWREVIEWabsolutists constitutions, like the constitutions of the Germanconstitutional monarchy and the German 1871 ImperialConstitution. Only the pattern defined by the British, American,and French constitutions was taken as the right paradigm. In themore recent editions of Esmein's work,53 the Weimar Constitutionwas said to fit that pattern. 4Schmitt thus discloses the political intention that motivates hisexercise in constitutional metaphysics. Initially, his argument inthe Verfassungslehre was meant to isolate a substantiveconstitutional core, by means of which he could offset thereduction of constitutions to a set of disparate laws. This explainsthe introduction of the notion of an absolute constitution. Thismay be said to be the pure juridical side of his critique of liberalconstitutionalism. But gradually one can see the other side of hiscritique, the one that focuses on the political. Liberalism hasdefined a constitutional ideal which, according to Schmitt, represses the political. 55 In so doing, liberal constitutionalismexcludes consideration of the absolute constitution and adopts apoint of view critical and negative with respect to the power of thestate. 56 Schmitt's appeal to metaphysics enhances his conceptionof the political by exposing the political relativism and one-sidedness of the constitutional Idealbegriffdefended by liberalism.Moreover, he shows that the political is inescapable and that, as amatter of fact, liberal constitutions do incorporate a politicalelement. The constitutions of present-day bourgeois states arealways composed of two elements; on the one hand, rule of lawprinciples for the protection of bourgeois freedom against thestate, and on the other hand, the political element from which theproper state-form is to be derived. 57

    II. ScHMITr AND THE AMERICAN CONSTITUTIONThe notion of constituent power is the main weapon inSchmitt's critique of constitutional liberalism. By using it, he is

    able to introduce the political into the very heart of constitutionaltheory. Liberals like Kelsen try to expel this notion from theconstitutional universe, together with the idea of sovereignty. Ifsovereignty resists this expulsion, liberals retreat to what Frenchdoctrinaires, like Constant and Royer-Collard, describe as the

    53 Schmitt refers to Esmein's 1921 edition.54 SCHMITT, supr note 2, at 38.55 Id at 41.56 d57 d

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    SCHMITT ND CONSTITUENTPOWERsovereignty of the constitution. 58 If this still proves untenable dueto the overpowering presence of the political, progressive liberalsadopt a political standpoint, compromise with democracy, andspeak of popular sovereignty. The people may be said to be thesubject of constituent power. Among progressive liberals there isno room for a compromise with an absolutist monarchicalprinciple. To think that a monarch could be the subject ofconstituent power is anathema. In their eyes, an absolutistmonarchical constitution, like the German Imperial 1871Constitution so dear to Schmitt, is not even considered aconstitution.The prominent place attained by the notion of constituentpower in Schmitt's thought may explain why he pays littleattention to American constitutional beginnings. When heconsiders the first modern constitutional experiences, he includesthe foundation of the United States of America in 1775 [sic]together with the social revolution in France in 1789.19 Both theAmerican independence and the French Revolution represent the beginning of a new epoch. 60 But only the AmericanRevolution brought about the creation of new states together withthe new constitutions. The French state predated the revolutionand continued to exist after it. What took place in France wasnothing more than a decision concerning the political form an dmode of an already-existing state. A people consciously took itsown destiny in its own hands and freely decided the mode an dform of its political existence. 61 Only in France, then, where therevolution presupposed the existence of a political union, andneeded only to define the mode of its existence, could the issue ofconstituent power attain full clarity. In spite of the greatinfluence of the American model, it was Siey~s who, for the firsttime, formulated the theory of the pouvoir constituant of thenation. 6 2 In contrast, the American constitutions of the 18thcentury lacked a proper constitutional theory, 63 and could notbring to light the full weight carried by the notion of constituentpower. Schmitt writes:This entirely new principle is not fully discernible in theAmerican Declaration of Independence A completely newpolitical formation arose in this case and the act of giving aconstitution [Akt der Verfassunggebung] coincided with the

    58 Id at59 Id t 216 Id at 7861 Id62 d63 Id

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    CARDOZO LAWREVIEWfoundation of a series of new st tes6The founding of a new state does not require the immediate

    adoption of a positive constitution. One ought to distinguish thefounding of a state by means of a social contract from theconferring of a constitution. The state or social contract (Staats-oder Sozialvertrag)gives rise to a political union; a constitutionalcontract (Verfassungsvertrag) presupposes an already-existingpolitical union. In accordance with his metaphysical design,Schmitt asserts that a political existence precedes the giving of aconstitution Verfassunggebung).65Whether or not Schmitt is right in claiming that the notion ofconstituent power, this wholly new principle, was not fullydiscernible at the time of revolutionary America,66 there areindications that make it difficult to relate Schmitt's conception toAmerica. First, the Verfassungslehre s existentialpremise-namely, that constitutions are born and may also ie isnot verifiable in America. The American Constitution presides anovus ordo seclorum. It was born to immortality in 1787 and stillsurvives, despite the Reconstruction and the New Deal, exercisesof higher lawmaking, amendments, and other transformativestatutes.67 The prospect that the Constitution of 1787 will at anypoint be destroyed and die is not a credible scenario in America.One should add that Schmitt's existential premise is governed notso much by his experience of the birth of the Weimar Constitution,but primordially by the death of the German Imperial 1871Constitution.Second, Schmitt ties the issue of the subject of constituentpower to the identification of its subject. In this respect heenvisages two possibilities: the people or the monarch. Theconstitutional response to the question concerning the subject ofconstituent power within a political union is determined by a

    64 Id.65 Id. at 50.66 Actually, this may actually have to do with Schmitt's limited knowledge of the

    Founding in 1787. This may have led him to pay exclusive attention to 1776. When he didpay attention to the Founding, he did not get the full picture. In one instance, he wrote:

    The Federal Constitution of the United States of America (1787) was projectedin a constitutional Convention. It was then submitted to the states assembled inCongress. This Congress recommended its acceptance to the people of thedifferent states and, at last, it was accepted in each of the thirteen states byspecial ratifying Conventions, that is, by Assemblies elected for that purpose.

    Id at 86. This account misses the illegality of the Founding. Cf. ACKERMAN, supra note19, at 41-42, 173-79. And by so doing, it does not allow for a consideration in terms ofconstituent power, which operates beyond the realm of legality.

    7 In contrast, the Canadian Constitution, the BNA Act of 1867, CAN. CONST. (BNAAct, 1867), survived a perilous voyage across the Atlantic in 1981, but is now in danger offoundering.

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    SCHM TFAND CONSTTUENTPOWERsimple either-or: the people or the prince. 68 This simplealternative is not an alternative in America. It does not coincidewith the American experience. If the land of We the Peoplewere ever to encounter a monarch as the subject of constituentpower, this would mean the end of America. A democratic, not amonarchical, legitimacy has been the unbroken rule here.Unfortunately, this rule was broken in Spain during the Civil Warand in Chile in 1973. In both these cases, Schmitt's constitutionaltheory was a guiding factor.69

    III. ScHMITr AND FRANCOThe events that began to unfold in Spain on July 18, 1936,were a propitious occasion for the revolutionary exercise of

    constituent power. The Junta e Defensa Nacional the governingjunta constituted on July 24, proclaimed Franco as head of stateon September 29, 1936. The junta issued a decree which read: General Francisco Franco Bahamonde is named head of theSpanish state and assumes all the powers of the new state. 0 Themeaning of this legal document was later clarified and expandedby the so-called Unification Decree of April 19, 1937, and the lawsof January 30, 1938, and August 8, 1938. These constitutional textsclaimed that the assumption of a plenitudo potestatis by Francoimplied a supreme power [suprema potestad] to dictate generaljuridical norms. 71 In accordance with Schmitt's views, LuisSAinchez Agesta concludes: a constituent power to define the new

    68 SCHMITr, supranote 2, at 63.69 Schmitt's constitutional theory is not the only aspect of his thought that accords with

    the historical reality of Chile in the 1970s and the Hayekian policies enforced by Pinochet.In my book, CarlSchmitt and AuthoritarianLiberalism I show that his late Weimar workstry to synthesize the authoritarian state and free market economics. RENATO CRISTI,CARL SCHMITT AND AUTHORITARIAN LIBERALISM: STRONG STATE, FREE ECONOMY221 (1998). In his important book, Carl Schmitt: The End of Law William Scheuermanargues otherwise. WILLIAM E CHEUERMAN, CARL SCHMITT: THE END OF LAW 284n l (1999). According to him, Schmitt does hope to limit certain (characteristicallysocial democratic) forms of state intervention... [but] does insist on the need for an activestate role within the capitalist economy. Id. Scheuerman defines Schmitt's qualitativetotal state as constituting an alternative brand of interventionism, different fromHayek's minimal neutral state. Id. at 215. But when Schmitt admits that the demand fornon-intervention is utopian, this is meant only to apply to the quantitatively total Weimarstate. Only in such a situation would intervention be advisable. C RL SCHMITT DERHUTER DER VERFASSUNG 81 (1969). Moreover, when Schmitt, in his 1932Langnamverein address, advocates painful surgical [state] intervention, it is only tobring about the segregation of the state from non-state spheres, and thus offset an activestate role within the non-state capitalist economy. See CRISTI, supra at 221-22 (quotingSchmitt).

    7 Cf Luis SANCHEZ AGESTA, CURSO DE DERECHO CONSTITUCIONALCOMPARADO 469 (1963).

    7 Id. at 470.

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    CARDOZOLAWREVIEWconstitutional order [was] granted to the Spanish head of state. 72Sdnchez Agesta was one of a number of Spanish jurists, influencedby Schmitt, who sought to accommodate Schmitt's constitutionaltheory to Spanish circumstances.73 These jurists confirmedSchmitt s counterrevolutionary intent when they underlinedFranco's destruction of Spain s 1931 Constitution and the creationof a new one.74Schmittian influence determines Sdnchez Agesta's ow nconception of constituent power. In his view, the genuineconstituentpower is the will that decides on the content of order.It is pure political activity conceived in its pure essence as creativeof order. 75 The organization of a social group emanates from thewill of a constituent subject. Such a will, because of itsrevolutionary nature, lacks a normative character. Sdinchez Agestaquotes from Donoso Cort6s: Constituent power cannot bedefined by the legislator or formulated by the philosopher. Itcannot be confined within a book and breaks the framework ofconstitutions. When it appears, it is like lightning sundering thebosom of a cloud. It inflames the atmosphere, finds its victim andthen disappears. 76 Thus, constituent power lies in the realm of theexceptional. It is not to be found within constitutional bounds, butbeyond and above constituted powers.Like Schmitt, Sdnchez Agesta emphasizes the creative vitalityof constituent power. Decisions taken by the subject ofconstituent power cannot be traced back to a previous order. Itsconstitutionally generative capacities break the chain of causality

    72 d73 Cf GERMAN GOMEZ ORFANEL, EXCEPCION Y NORMALIDAD EN ELPENSAMIENTO DE CARL SCHMITT 23 (1986).74 In his study of Schmitt's intellectual influence on Franco's regime, Josd MarfaBeneyto notices that it extended far beyond the sphere of constitutional studies.According to Beneyto:The assimilation of Carl Schmitt's thought was a determining factor in therenewal of Spanish political studies since the 1930s and their institutionalizationin the Instituto de Estudios Politicos (founded in 1939, shortly after the end ofthe Civil War) The dawn of this ideologically-driven interest in politicaltheoretical questions led to the foundation of Madrid s first Faculty of PoliticalScience in 1943. From the start, Carl Schmitt was at the centre of these efforts.DR. JOSt MARIA BENEYTO, POLITISCHE THEOLOGIE ALS POLITISCHE THEORIE: EINE

    UNTERSUCHUNG ZUR RECHTS-UND STAATSTHEORIE CARL SCHMIT'S UND ZU IHRERWIRKUNGSGESCHICHTE IN SPANIEN 20-21 (1983); cf GOMEZ ORFANEL, supranote 73 ,at 12-28; Pablo Lucas Verdti, Die Entwicklung der Staatstheoriein Spanienseit 1945 DERSTAAT 2, 227-44 (1963).

    75 uis SANCHEZ AGESTA, LECCIONES DE DERECHO POLITICO 325-26 (4th ed.Prieto 1951) (1943); cf. Luis SAnchez Agesta, Las posiciones del pensamiento politicojuridico de arlos Schmitt REVISTA GENERAL DE LEGISLACI6N Y JURISPRUDENCIA457 71 (1942).

    7 SANCHEZ AGESTA, supra note 75, at 338.

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    SCHMITAND CONSTITUENTPOWERand create something new and unexpected. Confirming themetaphysical status defined by Schmitt, Sdnchez Agesta conceivesof it as lying beyond all constituted powers and beyond all thereasons that could legitimate the right to exercise such a power. Itis simply a historical fact. 77 He explicitly rejects normativism andembraces Schmitt's decisionism.The three characteristics that he attributes to the notion ofconstituent power-originality, efficacy, and creativity-suggestSchmittian influences. First, constituent power is original, andtherefore does not need to be legitimated by a previous juridicalnorm. When constituted powers are overtaken and the positiveorder is transcended, a revolutionary fact is at hand.Constitutional reform, which is supported by what Sdnchez Agestacalls constituted constituent power, depends on an establishedconstitutional norm. In contrast, a manifestation of the genuineconstituent power entails juridical violence. 78 With thewholesale destruction or abrogation of a constitution, we leave therealm of legality. The revolutionary creation of a new state ofaffairs obtains its legitimacy from a transcendent order. Second, itis not enough that the newly created order may obtaintranscendental legitimacy; the new order must be presentlyeffective. Whoever invokes constituent power must be able tobring about the creation of order and impose it on the forces thatoppose it. This must be done on the basis of its present force orthe authority it has invested. 79 Third, constituent power isviolent juridical activity that creates or transforms a givenorder. ' 80 Its activity cannot in any way be conceived of as purelyrestorative or conservative. Its eminently revolutionary naturedoes not correspond, as Sdinchez Agesta acknowledges, to thefunctions of a protector of the constitution.81Sdnchez Agesta was forced to adapt the Schmittianconception to the special circumstances faced by Spanish Fascism.The horizon of Schmitt's Verfassungslehre was determined by thegenesis of the Weimar Constitution, a. democratic constitution.The monarch had been replaced by the German people as thesubject of constituent power. In contrast, in Spain, the people hadnot been replaced by a monarch, but by Franco, who could notclaim dynastic legitimacy. Sdinchez Agesta can only stress his(counter)revolutionary credentials. The legitimacy claimed by

    77 Id at 33978 Id at 34079 d8 Id at 3418 Id

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    CARDOZOLAWREVIEWFranco was the right to rebel. In the present political situation,[constituent] power can only manifest itself as revolutionary. Assuch, its legitimacy has to be determined by the right to rebel andSuarez's doctrine of the transmission of power. 82 Moreover,Sdnchez Agesta dismisses Schmitt's alternatives: the people or themonarch. He considers these to be merely historical myths. 's3The subject of constituent power is whomever is able to producean effective decision and create a viable constitutional order.Once the regime consolidated, and particularly after thedefeat of Fascism in World War II, SAnchez Agesta tried toaccommodate the sovereignty of the people. To this end, he drewa distinction between original and derivative constituent powers.8 4Derivative constituent power-the power to reform theconstitution-was handed back to the people. Original constituentpower--the power to suspend or abolish the constitution-washeld by Franco. A proto-monarchical principle would continue torule Spain until Franco's death in 1975. Only in 1982 would areconstructed SAnchez Agesta acknowledge that constitutedconstituent power was based on the doctrine of nationalsovereignty, which he identified with the theory of popularconstituent power.

    IV. THE DESTRUCTION OF CHILE'S 1925 CONSTITUTIONOn September 11, 1973, the armed forces under Pinochet

    deposed President Allende, accusing him of gross violations of the1925 constitution. But their own defense of the constitution wasshort-lived. Two days later, on September 13, the military juntadecided to initiate the study of a new constitution, which signalledits intention to abrogate the 1925 constitution. That same day, thejunta charged a constitutional law professor, Jaime GuzminErrdzuriz (1946-1991), with the task of preparing the new text. 6Four members were then selected for the Constituent8 Id at 342.8 Id84 Holmes and Sunstein attribute the introduction of this far-fetched terminology to

    French constitutionalists. Holmes & Sunstein, supra note 42, at 276. The notion of aderivative constituent power is employed by Marcel Prglot, who refers it to anotherFrench jurist Roger Bonnard. MARCEL PRtLOT, INSTITUTIONS POLITIQUES ET DROIT ONSTITUTIONNEL214 (Jean Boulouis rev., 1984).

    8 Luis Sinchez Agesta (unpublished source) (1982).8 See Renato Cristi, La g n sis de la Constituci6nde 1980. Una lecturade las Actas de

    la Honorable Junta de Gobierno 29 REVISTA DE CIENCIA POLTICA 213 (1998)[hereinafter Cristi, La g~nesis de la Constituci6nde 1980]; cf. Renato Cristi, La noci6n dePoder Constituyente en Carl Schmitt y la G~nesis de la Constituci6n Chilena de 1980 20REVISTA CHILENA DE DERECHO 229 (1993) [hereinafter Cristi, La noci6n de PoderConstituyente en Carl Schmitt].

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    SCHMI7TAND CONSTITUENTPOWERCommission, with Guzmdn as its leading voice. On March 111974, the government publicized its Declaration of Principleswritten by Guzmdin, which would serve as a guideline for thecommission. Henceforth, Guzmdn s role as Pinochet s Kronjuristwas unchallenged. It took six years for the commission tocomplete its assignment. On September 11 1980 its draftproposal was ratified in a nationally-held plebiscite, condemnedworldwide as a mockery of democratic procedure.87 This 1980constitution, slightly amended in 1989 presided over the transitionto the democratic regime, headed by President Aylwin, which isstill in place. Intricate amending formulae have entrenched itsauthoritarian provisions, allowing, for instance, the permanence ofPinochet as commander in chief of the army.

    When Guzmdn started his collaboration with the militaryjunta, he was only twenty-seven years old. Fresh in his memorywere the textbooks that guided his constitutional law studies. Theauthors of these texts all knew Carl Schmitt s work and wereinfluenced by it. It is not an accident, therefore, that Guzmdn

    87 See Robert J. Barros, By Reason and Force: Military Constitutionalism in Chile,1973-1986, at 121 (1996) (unpublished Ph.D. dissertation, Dep t of Pol. Sci., Univ. ofChicago). Barros stated:Since the constitution was drafted in secret, without any popular participationthrough an elected constituent assembly, and was ratified by a plebiscite amidst

    a state of emergency, with all political parties outlawed, no alternativespresented to voters, nor any statement of the juridical consequences of a defeat,no electoral registries, and no independent electoral oversight or counting,opponents of military rule judged the 1980 constitution to be nothing more thanan imposition by force, a coercive act, which in accordance with principles ofpublic law was juridically null and void.Id.

    88 The course on constitutional law taken by Guzmin at the Catholic University wastaught by Professor Enrique Evans, who was familiar with Schmitt sVERFASSUNGSLEHRE. ENRIQUE EVANS, TEORIA CONSTITUCIONAL (1972). One findsevidence that the VERFASSUNGSLEHRE was read earlier in Chile. The first references toit appear in 1934, in the work of Guillermo Izquierdo Araya, then a prominent member ofChile's Nazi party. GUILLERMO IZQUIERDO ARAYA, LA RACIONALIZACION DE LADEMOCRACIA: UN ESTUDIO DE LAS NUEVAS TENDENCIAS CONSTITUCIONALES (1934).It was also discussed in the work of Chilean constitutional jurists. See ALEJANDRO SILVABASCURAN, TRATADO DE DERECHO CONSTITUCIONAL I 63 (1963); FRANCISCOCUMPLIDO HUMBERTO NOGUEIRA, TEORiA DE LA CONSTITUCION 19-25 (1990);MARIO BERNASCHINA GONZALEZ, MANUAL DE DERECHO CONSTITUCIONAL (1956);Mario Verdugo Marinkovid, LSe Encuentra Vigente la Constituci6n? n EMILIO PFEFFERURQUIAGA, MANUAL DE DERECHO CONSTITUCIONAL 134 (1977). Law historians maywant to also see Bernardino Bravo Lira, Pueblo y Representaci6n en la Historia de hileTres Mornentos Claves Comunidad Politica Sociedad de lases y ComunidadConsociativa in ANUARIO DE FILOSOFIA JURiDICA Y SOCIAL 117 (1989). Anotherchannel for Schm itt s ideas has been the work of Spanish jurists like Luis SAnchez Agesta,Alvaro D Ors, Luis Legaz y Lecambra, Nicolis Pdrez Serrano, Pablo Lucas Verdfa,Gonzalo Fernandez de la Mora, and Manuel Fraga Iribarne. Cf. BENEYTO, supra note 74,at 20-44; GERMAN GOMEZ ORFANEL, EXCEPCION Y NORMALIDAD EN ELPENSAMIENTO DE CARL SCHMITT 12-28 (1986). One should also mention Schmitt s

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    CARDOZOLAWREVIEWwas acquainted with Schmitt's Verfassungslehre.9 In fact, theSchmittian conception of constituent power allowed him toconstrue Pinochet s regime as an absolute, and not merely as atypical commissarial dictatorship. As an absolute or sovereigndictator, Pinochet seized pouvoir constituant,eliminated the wholeexisting constitutional order, and generated a new constitution.Like Schmitt, Guzmdn thought that, when matched against anabsolute constitution, positive constitutions appeared precariousand provisional. A revolution could transcend the limits of thelegal order without trespassing the limits of the juridical Recht).Above and beyond a constitutional system, there was the higherlegitimacy bestowed by constituent power. On the basis of thathigher legitimacy, Guzmdn guided the revolution that destroyedChile's 1925 constitution.

    Dieter Blumenwitz has maintained that the coup cannot beinterpreted as a revolution, but simply as the restoration of theconstitutional order violated by Allende s government. Thisrestoration was legitimated by an appeal to the right to resistance. Since its initial stages it is clear that the new government aimed atrestoring the institutional order violated by [Allende s]revolutionary actions. This meant rescuing the principles thatdefined the institutional system and which had been violated bythe government against which one exercises the right ofresistance. ''9 But he does not consider the fact that the militarygovernment destroyed the 1925 constitution and the specificconstituent power on which it was based-the constituent power ofthe people. This meant that the aim was the abrogation, not therestoration, of the constitution then in force, and the democraticinfluence on a number of Argentinean jurists, including German Bidart Campos, SegundoLinares Quintana, Carlos SAnchez Viamonte, and Arturo Sampay, all of them well knownin Chile. In GuzmAn's personal library, now in possession of the Fundaci6n JaimeGuzmdn, I found well-worn copies of books by SAnchez Agesta and Bidart. SANCHEZAGESTA, supra note 75, at 325-26; GERMAN JOSt BIDART CAMPOS, DERECHO POLITICO(1967); cf. GONZALO ROJAS, MARCELA ACHURRA PATRICIO DUSAILLANT,DERECHO POLITICO: APUNTES DE LAS CLASES DEL PROFESOR JAIME GUZMANERRAZURIZ 193 (1996). It should be noted that Schmitt's Verfassungslehre appeared inSpanish in 1934, in a superb translation by Francisco Ayala. CARL SCHMITr, TEORfA DELA CONSTITUCION 81 (Francisco Ayala trans., Alianza 1982) (1934).

    89 Guzmdn did not own a copy of Schmitt's Verfassungslehre but borrowed one fromhis colleague, Professor Jos Luis Cea. I owe this information to Professor Cea, whopresently teaches Constitutional Law at the Catholic University of Chile.9 Dieter Blumenwitz, PoderConstituyenteOriginario PoderConstituyenteDerivado,29 POLTICA 218 (1992) [hereinafter Blumenwitz, Poder Constituyente Originario]; cf.

    ALEJANDRO ALVAREZ, DIE VERFASSUNGGEBENDE GEWALT DEL VOLKES UNTERBESONDERER BERUCKSICHTIGUNG DES DEUTSCHEN UND CHILENISCHENGRUNDGESETZES 261-71 (1995); Dieter Blumenwitz, Die Neue erfassung der RepublikChile 30 JAHRBUCH DES OFFENTLICHEN RECHTS DER GEGENWART 617 (1981); DieterBlumenwitz, Llamado a Plebiscito es PlenamenteLegitimo, EL MERCURIO, Sept. 10, 1980.

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    SCHMFITANDCONSTTUENTPOWERprinciples that defined it. This also meant that Chile's militaryjunta was not a commissarial dictatorship that temporarilysuspended part or all of the constitution. Here was a genuine caseof absolute dictatorship which intended to bring about a newconstitution in place of the one it had destroyed.91 There is noevidence that suggests that this was something for which Pinochetand the armed forces had originally intended and planned. Theysimply adopted the proposals put forward by Guzmdn. Thedestruction of the 1925 constitution and enactment of a new onewas first proposed and carried forth by Jaime Guzmdin. To refer tohim as Pinochet's Kronjurist would not do justice to the role heplayed. When it came to constitutional matters, Guzmdn wore thecrown.In an article published in the newspaper El Mercurio onOctober 5, 1975, Jaime Guzmdin acknowledged that the 1925constitution had been destroyed. This was the first officialrecognition of this fact. The occasion for this announcement wasthe decision by the military government to promulgate a series ofwhat it called Constitutional Laws (Actas Constitucionales):

    No one who reads the text of the 1925 Constitution (includingthe explicit reforms that have been introduced to it) andconfronts it to the now existing political and institutional reality,can arrive at the conviction that the Constitution is still in force.And this is so even when one takes into account the otherreforms that the Junta has introduced to it by means of itsconstituent power. The 1925 Constitution is dead for allpractical purposes, and most important, dead in the mind of theChilean people. One gains in realism if one substitutes it by aset of Constitutional Laws, instead of allowing it to continue tolive merely to exhibit the tatters which historical facts havereduced it to.92For two years, since September 11, 1973, the military juntahad ruled by decree. At the same time, it had consistently

    maintained that the 1925 constitution was fully in force and thatthe junta itself was the subject of constituent power. Thisconstitutional state of affairs had been defined by three decreesdecretos-leyes in Spanish, d rets-lois in French, Verordnungen mitGesetzeskraft in German)-DL 128 (November 12, 1973), DL 527(June 26, 1974)), and DL 788 (December 4, 1974)-the so-called foundational decrees.

    The military junta saw the need to promulgate DL 128, after

    9 ee generally CRISTI, supranote 69, at 63-70.92 Jaime Guzmin, Necesidad y Trascendencia de las Actas Constitucionales, ELMERCURIO, Oct. 5,1975, at 27.

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    CARDOZOLAWREVIEWword came out on November 7, 1973, that Chile's Supreme Courtwould begin reviewing some of the 127 decrees promulgated thusfar. The junta, advised by Guzmdin, enacted DL 128, whichexplicitly acknowledged that on September 11, 1973, it had seizedthe constituent power. Article One stated: On 11 September1973, the Junta has assumed the exercise of the constituent,legislative and executive powers. 93 It further declared, in ArticleThree, that if any of its decrees in the past had contravened orwere in the future to contravene the constitution, this could onlymean that the constitution had been tacitly reformed. Adistinction could be drawn between decrees that fell withinconstitutional parameters and those constitutional decrees thatmodified the constitution. Such a distinction was not explicitlydrawn at this point, but would require future clarification. 9 In anycase, the Chilean Supreme Court was informed beforehand of thisdecision and accepted it, despite the fact that the decisioneffectively suppressed judicial review in Chile. Later, apparentlyoblivious to this implication, the Court would insist on exercisingthis constitutional duty.The Supreme Court's action was motivated by the fact thatGuzmdin and the military junta did not acknowledge from the startthat the 1925 constitution had been destroyed. Within the confinesof the Constituent Commission, whose meetings were not public,Guzm~in agreed with its other members that such informationshould be kept confidential. Were it to be disclosed, Chile'sinternational image would suffer, and the junta's then-currentnegotiations with the American copper companies would bejeopardized. But aside from this, Guzmdin was able to convincehis colleagues that the junta claimed to be the subject, not of anoriginative constituent power, but only of a derivative constituentpower, a distinction obtained from Sdinchez Agesta,96 and lateremployed by Blumenwitz to legitimate the military coup.9 7 As thesubject of a derivative constituent power, the junta had seized onlythe power to reform the constitution, not to destroy or abrogate

    93 61 CONTRALORIA GENERAL DE LA REPUBLICA, RECOPILACION DE DECRETOSLEYES 245.

    94 See generally Barros, supra note 87, at 60.9 See JUNTA DE GOBIERNO, ACrAS DE LA HONORABLE JUNTA DE GOBIERNO,153rd meeting (1974). These are the original minutes that report the proceedings of thesecret legislative sessions held by Chilean military junta between 1889 and 1973. The 63volumes containing these minutes were bound and sent to Chile's Library of Congress,where they are presently stored. A brief selection was made public for the first time in1998. See Cristi, La g~nesis de l Constituci6nde 1980 supra note 86.96 AGESTA, supranote 75; cf. Cristi, La noci6n de PoderConstituyenteen CarlSchmitt

    supranote 86.97 Blumenwitz, PoderConstituyenteOriginario upra note 90.

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    SCHMITTAND CONSTITUENTPOWERit.9 The military junta could continue to recognize the text of the1925 constitution as valid and claim that it had seized constituentpower. In 1975 Guzmdn's frank admission that the 1925constitution was dead proved that the use of that distinction wasmerely a clever subterfuge to misrepresent his intentions. In truth,the 1925 constitution was reduced to lifeless shreds; its text wasnow animated by a new spirit, a new originative constituent power.In accordance with the honest and clearheaded views expressed byHobbes,99 it ought more properly to have been known as the 1973constitution.

    On the morning of September, 5, 1974, the ConstituentCommission debated a request from the minister of planning toclarify the constitutionality of granting foreign companies the rightto exploit Chile's oil deposits. 10 While the other members of thecommission agreed to debate the request and presented theirviews on the matter, Guzmdin dismissed such discussion altogether.He pointed out that a constitution ought not to be seen as ahindrance or a limitation on economic activity. While the failureof the former governments derived from the existence of aninstitutional order that constrained them, the present governmentfaced no such limitations. It has assumed total power [podertotal] so that it is responsible for its acts only before God andhistory. 10' He added that any governmental decree thatcontradicts the Constitution tacitly modifies it. If the nationalinterest requires it, the government may not only proceed to do so,but has the duty to do o 1 2 Guzmdn also reminded the othermembers that, when the final settlement was reached with theAnaconda Copper Company, the junta expressly alluded to itsconstituent power. '0 3 On other occasions, however, it chose not tomake a similar reference. In any case, all this was irrelevant, as he

    98 Schmitt strongly rejected the possibility of referring to the ability to reform aconstitution as constituent power. Its particularly wrong to define as constituent poweror pouvoir constituant the constitutionally regulated faculty to amend or revise legalconstitutional determinations. SCHMITT, supra note 2, at 98 .

    99 THOMAS HOBBES, LEVIATHAN ch. 26, at 142 C.B. Macpherson ed., 1968) (1651).He stated:If the Sovereign of one Common-wealth, subdue a People that had lived underother written Lawes, and afterwards govern them by the same Lawes, by whichthey were governed before; yet those Lawes are the Civill Lawes of the Victor,and not of the Vanquished Common-wealth. For the Legislator is he, not bywhose authority the Lawes were first made, but by whose authority they nowcontinue to be Lawes.

    Id.1 Comisi6n Constituyente, 1983: 68th meeting, at 22-27.1 1 Id. at 23 .1 2 Id.1 3 Id. at 24.

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    CARDOZOLAWREVIEWwas quick to add, for there is no such thing as an anti-constitutional decree. 11 4

    Later that same day, Guzmdin met alone with the fourmembers of the military junta and its close advisors, and obtainedthe enactment of a new decree-DL 788 105 This new foundationaldecree declared that its aim was to clarify the meaning of DL128. In Article Three, DL 788 stated that [f]uture decrees thatare, in part or totally, tacitly or expressly, contrary or different toany norm within the Constitution, will only amend it if it isexplicitly said that the Junta does so in virtue of its constituentpower. This confirmed the view that the 1925 constitution hadbecome putty in the hands of the junta. It also confirmed whatGuzmin would admit in the note published on October 5, 1975-that on September 11, 1973, the military junta seized the totalpolitical power [ a plenitud del poderpolitico] in Chile. 1 6 Likeseventeenth- and eighteenth-century monarchy, the military Juntaalso claimed a plenitudopotestatis

    V. THE GENESIS OF CHILE'S 1980 CONSTITUTIONLike the death of the 1925 constitution, the genesis of the1980 constitution was also heralded by an affirmation of the junta's

    constituent power. In 1978, on the occasion of the NinthSymposium on Public Law held in Santiago, Sergio Gaete, Deanof Law at the Catholic University of Chile, inaugurated the eventwith a presentation entitled El PoderConstituyente 7 The point ofdeparture of Gaete's argument was the distinction betweenoriginative and derivative constituent power, and the assertion thatin September, 1973, the junta seized the originative constituentpower. His argument rejected the view expressed earlier byGuzmin, and later by Blumenwitz, that attributed only aderivative constituent power to the junta. Gaete, in agreementwith Schmitt, alleged that the latter could be activated only incases of constitutional reform. In the case of Pinochet's coupd'dtat, its revolutionary nature had to be acknowledged. For thatreason, the junta was now in possession of the ability to create, ina revolutionary fashion, a fundamental juridical order independentof the one previously existing. 18 This revolutionary character

    1 4 Id at 25 .1 5 See Cristi, La g6nesis de l Constituci6nde 1980 supranote 86, at 211; cf JUNTA DE

    GOBIERNO, supra note 95.1 6 Guzmrnn, supranote 92, at 27.1 7 DIETER BLUMENWITZ & SERGIO GAETE, LA CONSTITUCI6N DE 1980: Su

    LEGITIMIDAD 33-45 1981).1 8 Id at 48.

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    SCHM1TAND CONSTTUENTPOWERimplied not only the abrogation of the established constitutionalorder, but also its destruction. Gaete admitted that a revolutionhas a destructive effect on the existing order, because those whoacquire power do so without taking that order into account. 19 Inaccordance with a Schmittian point of view, Gaete argued that theconstituent power of the people had been transferred to therevolutionary leaders of the coup. The junta, he acknowledged,had destroyed the constitutional order existing prior to the coup.Gaete made explicit reference to the destructive and the creative effects brought about by the activation of theconstituent power. His observations reflected Schmitt'smetaphysics of constituent power.On August 24, 1980, a few days before the plebiscite called todecide the approval or non-approval of the new constitutionproposed by the junta, a public letter was published in ElMercurio, written by Gaete and signed by a number of lawprofessors, among them Jaime Guzmdin. This letter, entitledDeclaraci6n e profesores de Derecho e l Universidad Cat6licade Chile, ' elucidated the antecedents behind the decision to callfor a plebiscite to decide on the new constitution. A reading ofthis document detects the (counter)revolutionary role played bythe notion of constituent power. In no case did this plebisciteintend to activate the constituent power of the people. TheDeclaraci6n defined the plebiscite as a nonbinding referendumwithout legal or constitutional effects. In so doing, Gaete,Guzmdin, and their colleagues rescinded the possibility oflegitimating this plebiscite as a democratic exercise.

    The Declaraci6nfirst determined the unlimited nature of theoriginative constituent power seized by the military junta. Inagreement with Schmitt and Sdnchez Agesta, it interpretedconstituent activity as primal and originative, as the ultimatefoundation of positivity. It existed as a metajuridical dimension,incompatible with Kelsen's functionalism. For Kelsen, normativitylacked a transcendent basis. The metajuridical, or metaphysical,nature of constituent power was emphasized by the Declaraci6n:

    Originative constituent power does not recognize any formallimitation on its exercise-the basic positive legal order is theresult of that exercise and there is no preexisting basic positivelegal order to which it is subordinate. This is why, by nature, allthat refers to the originative constituent power does notproperly belong within the juridical sphere.1 9 Id. at 43 (emphasis added).11 See id. at 47-54. Id. at 49.

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    CARDOZO LAWREVIEWIn accordance with Schmitt's (counter)revolutionary

    conception, the Declaraci6nassumed that a constitution, definedas the basic positive juridical order, could be abrogated, since itrested on something higher-namely, the decision of theoriginative constituent power. Like Germany in 1933, and Spainin 1936, the constituent power of the Chilean people, whichgrounded the 1925 constitution, was destroyed and replaced by thejunta as its new subject. In possession of a plenitudo potestatis thejunta was now in the position to grant a new charter, a faculty thatit could have decided not to exercise. Not subordinate to apreexisting institutional order, the originative constituent powerrecognizes no formal limitation to its exercise. '112 This meant thatthe military junta claimed absolute sovereign power.113 It alsosignalled a radical interpretation of the oncoming plebiscite. Theplebiscite was not to be interpreted as a democratic exercise, inwhich the will of the people could express itself, but as a popularreferendum whose value would be determined by the absolutesovereign. This was another clear sign that the democraticlegitimacy existing in Chile since its independence had beenabrogated.The Declaraci6n then drew the logical conclusion. Thedemocratic value that could be read into the plebiscite had to beexcised. Once the military junta decided to activate its faculty togrant a constitution, the call for a plebiscite lay at its discretion.The plebiscite would have whatever the constituent power wouldascribe to it. The constituent power's hands were not tied bylegality, for it had tied its own hands. Schmittian logic was inevidence when the Declaraci6nrefuted those who challenged itslegitimacy and claimed that it was an undemocratic exercise:

    Consequently, the Honorable Junta, as the subject oforiginative constituent power, could have considered the studiesundertaken by the Constituent Commission, the State Counciland the Junta itself, and then promulgated the new constitutionwithout further process. The plebiscite is not invalidated by thefact that prudence, and not any juridical necessity, led to itsconvocation. As such, the plebiscite is a dispensableprocedure. 14

    112 Id. at 50.113 By concentrating in its hands both the constituent and legislative powers, the Juntacould claim an absolute power in the sense of legibus solutus but not necessarily in thesense of iure solutus. An absolutist regime, as defined by Bodin, presupposes a separationbetween right Recht) and law, between sovereign rule and the rule of reason. Absolutesovereign power does not necessarily imply tyranny or despotism.114 BLUMENWITZ GAETE supra note 107, at 50-51. By means of the DL 3,464 ofAugust 11, 1980, the Junta approved the new constitution. It did so by activating its

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    SCHMITAND ONSTITUENTPOWERThe Declaraci6nalso stated that a negative result would carryno legal effect. In the case of a victory of the No-vote, the

    constituent power of the junta would not be destroyed, and notransfer of constituent power to the people would take place. Butthat meant-and this was something that the Declaraci6ndid nottake into account-that a win by the Yes-vote would also lackdemocratic legitimacy. Dispossessed of their constituent power,the people would not really have a say that day. The plebiscitecould not have legal effect as an exercise in democracy.

    If the 1980 constitution, now valid in Chile, has democraticlegitimacy, it is due to the plebiscite held later in 1989, after theelectoral defeat of Pinochet in 1988. The Schmittian notion ofconstituent power developed in this essay allows me to concludethat the genesis of that constitution, sealed by the 1980 plebiscite,corresponds to the birth of a granted octroyer) constitution, likethe French Charter of June 4, 1814. In similar fashion, thelegitimacy of the 1980 constitution, at least until 1989, was notbased on the constituent power of the people, but on themonocratic power of the junta presided over by Pinochet. Aconstitution is legitimate, according to Schmitt, when the powerand authority of its constituent power, on whose decision it rests, isrecognized. '15 On October 5, 1988, Pinochet lost a genuine,democratically held plebiscite, and in 1989, another democraticplebiscite approved limited constitutional reforms. One could saythat a new constitution was born in that year-the 1989constitution. This one, not the 1980 constitution, was anexpression of popular sovereignty. Until this is fullyacknowledged, Chile s transition to democracy will not becompleted and its rewards not entirely enjoyed. 6

    constituent power. It also added that the text it had approved was subject to ratificationby plebiscite. Barros recognizes that no prior norm, antecedent to the coup, or of theJunta s own making obliged it to submit the constitution to ratification by plebiscite.Barros, supr note 87, at 123 n.11. He also thinks that this involved an explicitmodification of DL 788. Id. Barros does not take into account the Declaraci6n byGuzmin and his colleagues, whose ultimate aim was to reaffirm the validity of DL 788 andreclaim possession of the constitutional crown.

    5 SCHMITT, supra note 2, at 87.116 See generally Renato Cristi, Transici6n y Poder Constituyente, LA EPOCA May 8,1998, at 8.

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